Среда, 31 июля 2019 апдейт:

2. Introduction. The current scheme

2.1 In this chapter we outline the data analysis work that we have undertaken since the publication of our Consultation Paper. This has been conducted in conjunction with the United Kingdom's Financial Intelligence Unit («UKFIU»). Our aim was to analyse a sample of Suspicious Activity Reports («SARs») in the form in which they are submitted. We consider the data gathered over the course of this research exercise and use it to assess the likely impact of the provisional proposals put forward in our Consultation Paper. We demonstrate the ways in which our data analysis has been used to test the validity of our provisional proposals and inform our final recommendations throughout this Report.

2.2 In chapter 4 of the Consultation Paper we explored the inherent difficulties in measuring the effectiveness of a regime designed to disrupt criminal activity. We evaluated the effectiveness of the current consent regime using publicly available data on SARs. We observed that there was an absence of data on how SARs were used by law enforcement agencies. There has been, to date, no independent evaluation and analysis of the content of SARs. Our research into SARs provides the first insight into the application of the law by reporters and the quality of disclosures made to the UKFIU.

2.3 In our Consultation Paper we explain that SARs are the mechanism by which reporters make authorised and required disclosures to the UKFIU. The UKFIU is then responsible for processing the intelligence that has been received in those SARs before communicating it to any relevant law enforcement agencies. Disclosures can be very valuable to law enforcement agencies as they provide opportunities to disrupt criminal activity; in some cases that opportunity may not have arisen were it not for a SAR being filed.

2.4 The type of disclosure made by a reporter depends on the circumstances in which their suspicion arises. A single form is used but there are two types of disclosure that can be sent to the UKFIU:

(1) Required disclosures are triggered where a reporter knows or suspects, or has reasonable grounds to know or suspect (whether or not they do, in fact, suspect) that a person is engaged in money laundering. A failure to make a required disclosure is a criminal offence for which reporters can be found personally liable. Required disclosures provide law enforcement agencies with intelligence opportunities to disrupt criminality.

(2) Authorised disclosures (Defence Against Money Laundering or consent SARs) are most commonly triggered if, in a professional capacity, a reporter encounters suspected criminal property. These SARs have a dual function. First, they provide the investigative authorities with details of a reporter's suspicion of criminal property. Secondly, the fact that a report has been made and appropriate consent granted or deemed to have been granted affords the reporter a defence to a principal money laundering offence. In other words, the UKFIU is able to grant the reporter consent to carry out an otherwise prohibited act by, for example, allowing the suspicious transaction to take place.

2.5 In our Consultation Paper we reported that the UKFIU receive an average of 2000 SARs daily. Of those 2000, it is thought that around 100 are authorised disclosures submitted by reporters seeking a defence to a principal money laundering charge. Despite the fact that required disclosures constitute the vast majority of the overall total of SARs, they are not the focus of our enquiry. Instead, we are predominantly concerned with authorised disclosures.

Authorised disclosures

2.6 The National Crime Agency («NCA») have reported a 20% increase in the volume of authorised disclosures since 2017. Between April 2017 and March 2018, the UKFIU received 463,938 SARs of which 22,691 were authorised disclosures requiring a decision on consent. We observed in our Consultation Paper that authorised disclosures create pressure points in the system for two principal reasons:

(1) they are time-sensitive; and

(2) they are resource-intensive.


2.7 In chapter 2 of our Consultation Paper we outlined how an authorised disclosure is processed once it is received by the UKFIU and how delays in processing this type of SAR may be encountered.

(1) Seven-working-day period: once an authorised disclosure is received by the UKFIU a statutory period of seven-working-days is triggered. During this time the transaction is paused to prevent the movement of funds or the dissipation of assets while a decision is taken on whether to consent to that transaction being allowed (there is a risk of confusion on this point. All that is being consented to is for the reporter to continue to process the transaction; it is not a broader authorisation or confirmation that there is no money laundering offence being committed by the person under suspicion). A reporter who proceeds with a transaction during this period without consent risks committing a money laundering offence. Delays may arise in processing the SAR if a reporter has failed to include essential information in their report. For instance, details of the bases for their knowledge or suspicion, or of the criminal property.

(2) Moratorium period: if consent is refused during the initial notice period then an additional statutory period of 31 days is triggered, during which time the transaction remains paused. This power is necessary because, in a particularly complex case, law enforcement agencies may require additional time to investigate and consider any further action or simply to make an informed decision on consent.

(3) Extension of the moratorium period: the Criminal Finances Act 2017 introduced new powers for a Crown Court judge to authorise the extension of the moratorium period for up to 31 days at a time. The process can be repeated for up to 186 calendar days in total. The extended powers were introduced to provide law enforcement agencies with the additional time they may require to complete a thorough investigation and to guard against the dissipation of the suspected criminal property while that investigation occurs.


2.8 In our Consultation Paper we also outlined that the process of granting consent is not always straightforward, it is estimated that further information is required in 12% of cases. Where a SAR omits vital information, staff at the UKFIU may in some circumstances contact the reporter. This process creates delay and diverts resources away from the investigation and prevention of money laundering. The UKFIU have confirmed that between April 2017 and March 2018, 2,015 authorised disclosures were rejected because they were in some way seriously deficient. These cases were closed despite resources having been invested into processing them.


Analysis of authorised disclosures

2.9 As previously discussed in this chapter, authorised disclosures were the focus of our analysis for two reasons. These types of disclosure require substantial resources to process and they are time-sensitive. In addition, stakeholders had identified that there were issues with the quality of these disclosures. Given the constraints of time and resources, assessing the quality of these SARs was essential to test the validity of some of our provisional proposals.

2.10 We were provided with access to a sample of authorised disclosures by the UKFIU. In order to ensure that we analysed a representative sample, we asked the UKFIU to select based on two criteria:

(1) each batch of SARs within our overall sample should represent an entire day of authorised disclosures lodged with the UKFIU; and

(2) the whole sample should represent a week of authorised disclosures, covering each day from Monday to Friday but not on consecutive days.

2.11 Our overall sample size was 536 DAML SARs. Our sample was statistically significant and allows us to draw robust conclusions from the evidence it generated. In addition, the results of our analysis were broadly consistent with the detailed submissions we received at both the fact-finding and consultation phases of the project.

2.12 Our focus was to understand how the test of suspicion was being applied in practice and measure the likely impact of moving the threshold for reporting to a cumulative test of reasonable grounds to suspect; in other words, requiring that a subjective suspicion be based on objective grounds before a disclosure was made.

2.13 There were two additional strands to our analysis. First, we set out to capture the proportion of disclosures made to the UKFIU which fell within ten specific categories (outlined below at 12.14(1) to (12)).These categories were identified by stakeholders during our pre-consultation phase as SARs likely to be those in which the quality of the intelligence was limited. Secondly, we assessed the way in which the number of SARs might be affected if the «all-crimes» approach was replaced with a «serious crimes approach» by examining whether reporters were able to identify the predicate offence that they suspected and, if so, assessing whether it met the threshold of seriousness.

2.14 We analysed the quality of our authorised disclosure sample using the following set of criteria:

(1) whether the information provided met the test of suspicion in Da Silva;

(2) whether a reporter had provided evidence of one or more objective grounds on which their suspicion that the property in question was criminal property was based;

(3) whether the SAR related to a transaction of less than £1000;

(4) whether the SAR related to a transaction equal to, or less than, £250;

(5) whether the reporter was seeking consent to move funds internally within their organisation (for example from one account to another);

(6) whether the report was a duplicate; for example, a SAR which replicated information already submitted to another law enforcement agency such as Action Fraud or a SAR which was related to one the UKFIU had previously analysed and contained no additional information;

(7) whether the reporter had lodged a SAR based solely on information that was already in the public domain;

(8) whether the transaction in question related to suspected criminal funds being invested into immovable property within the United Kingdom («UK»), for instance the purchase of a house or mortgage payments;

(9) whether the SAR relates to two or more transactions in the same account, or linked accounts;

(10) whether the reporter's disclosure concerned an historical crime;

(11) whether the SAR had no UK nexus; and

(12) whether the SAR was filed as a result of an enquiry from a law enforcement officer, or the reporter was invited to make the report by such an officer.

Analysis of required disclosures

2.15 Required disclosures are neither time-sensitive, nor resource-intensive because they differ in the way that they are processed. A number of consultees in law enforcement agencies stated that they are an unparalleled source of information which would not otherwise be available to investigators. Tristram Hicks (former Detective Superintendent on the Criminal Finances Board) stated that:

SARs provide a unique way to detect unreported crimes, resolve existing enquiries, restore property or compensation to victims, build confidence in the justice system.

2.16 As discussed above, required disclosures are not the focus of our research. However, our provisional proposals on amending the threshold to the cumulative test of reasonable grounds to suspect would impact upon the threshold for requiring a disclosure and the quality of the information provided. For this reason, we sought to analyse a sample of required disclosures to assess the quality.

2.17 Our objective was to test the likely impact of our provisional proposals and discern whether these reports provided the sort of information required by law enforcement agencies on a consistent basis.

2.18 We were provided with access to a sample of required disclosures by the UKFIU. Our overall sample size was 100 required disclosures selected at random by the UKFIU.

2.19 Our focus was on understanding how the test of suspicion was being applied in practice and to measure the likely impact of moving the threshold for reporting to a cumulative test of reasonable grounds to suspect.

2.20 In addition, we looked at the quality and range of information provided by reporters. Required disclosures differ from authorised disclosures in that the reporter is directed to provide certain pieces of information to ensure compliance with the legislative wording. Reporters are directed to include:

(1) the identity of the person suspected of money laundering (or any information which may assist in identifying that person); and

(2) the whereabouts of the property (or any information which may assist in identifying the whereabouts of the property).

2.21 We analysed the quality of our required disclosure sample using the following set of criteria:

(1) whether the information provided met the test of suspicion in Da Silva;

(2) whether a reporter had provided one or more objective grounds on which to base their suspicion of money laundering;

(3) whether the SAR included one of the following pieces of information:

(a) mobile telephone number;

(b) home address and/or business address;

(c) other contact details such as an email address;

(d) information relating to a business or company;

(e) passport number;

(f) country or origin or ethnicity of the subject;

(g) Internet Protocol («IP») address;

(h) any transactional associates;

(i) details of any events such as cash deposits or withdrawals;

(j) details of any storage unit facility;

(k) details of any criminal property;

(l) vehicle details.

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