Conclusions
4.1 We agree that, of the options presented, retaining an «all-crimes» approach, but requiring SARs in relation to «serious crimes» is preferable (our option 2 above). Option (3), which would allow reporters to draw the attention of the NCA to non- serious cases, would leave many reporters uncertain as to whether they had an obligation to report in each instance where a suspicion arose. While the obligation to report would remain in option (2), it could cater to those reporters capable of identifying the predicate offence as the basis for having a reasonable excuse for not submitting a SAR. The reporter would bear some risk about the application of his or her judgement as it would be open to the prosecution to bring a charge testing the reasonableness of their excuse.
4.2 For option (2), retaining an «all-crimes» approach, but requiring SARs in relation to «serious crimes» to be workable, a satisfactory approach to defining what falls on either side of the line of «serious» would be necessary. Of those stakeholders who favoured this option there was no consensus view as to how that might be achieved. One option was to rely on a method of classifying offences under the present law (eg «non-imprisonable»). An alternative would be to rely on a specified list of offences enacted in the form of a schedule to the Act. The former would have the advantage of being easy to maintain; the latter ease of reference.
4.3 Our analysis of authorised disclosures suggests that the practical impact of any descoped list would be small: 97.5% of cases where the predicate offence was identified related to serious crimes.
4.4 The «all-crimes» approach is not perfect, but has two principal advantages. First, it helps to make the process of submitting SARs as simple as possible for the regulated sector, even if it means some SARs are submitted that will not lead to investigation or prosecution for serious offences. Secondly, it places the burden of assessment and triage, where necessary, on law enforcement agencies as those best placed and most qualified to pass judgement. It is principally for these reasons and to avoid the potential complexity of the alternatives that we favour the retention of the «all-crimes» approach.
4.5 We do not have the evidence we would need to recommend a change of approach which we recognise would risk complicating the existing system. We therefore recommend that the «all-crimes» approach to reporting is retained. However, notwithstanding these arguments, we consider that, if there was agreement between law enforcement agencies and the regulated sector on specific offences which are considered to generate little in the way of useful intelligence, there could be a greater focus on reporting only serious crimes. This may be achieved by way of examples included in statutory guidance illustrating what may amount to a reasonable excuse not to lodge an authorised disclosure.
4.6 The advantage with this approach is that it is more flexible and can adapt to changing circumstances and trends within the consent regime. It would enable the UKFIU to «switch off» the flow of certain types of SAR if they were proving to be of little value. Certainly, there is evidence that actors in some sectors believe themselves to be required to report unnecessarily. While we recommend maintaining the «all-crimes» approach, it remains open to Government or the proposed Advisory Board, to conduct further consultation with the legal sector specifically to see if specific criteria or a list of de-scoped offences could in fact be drawn up.
Recommendation 5.
4.7 We recommend maintaining the «all-crimes» approach to reporting suspicious activity.