Воскресенье, 04 августа 2019

4. Consultation

4.13 We asked whether we should maintain the «all-crimes» approach in POCA or move to a «serious crimes» approach. For those consultees who favoured a change, we also sought views on three alternative formulations:

(1) a serious crimes approach, whether based on a list of offences or maximum penalty; or

(2) retaining an «all-crimes» approach for the money laundering offences but requiring SARs only in relation to «serious crimes». This could be achieved by extending the reasonable excuse defence to those who do not report, for example, suspected non-imprisonable crimes or those less serious crimes which would be listed on a schedule to the Act; or

(3) providing the opportunity to those in the regulated sector to draw to the attention of the Financial Intelligence Unit in the NCA any non-serious cases, whilst maintaining a required disclosure regime for offences on a schedule of serious offences listed in one of the ways identified above.

4.14 Of the 42 respondents who specifically addressed this question, 31 favoured retaining the «all-crimes» approach; 11 favoured change. Some consultees who disagreed with the «all-crimes» approach acknowledged the difficulties that are likely to arise in implementing any of the alternatives put forward in the Consultation Paper.

4.15 There was little support among consultees for option (1). There was, however, more support for retaining an «all-crimes» approach broadly while making changes to reporting obligations as proposed in options (2) or (3) or in a similar manner.

4.16 Options (2) and (3) both approach a similar end by different means. In option (2), the obligation to report «all-crimes» would remain, but a reporter might have a reasonable excuse for failing to report in non-serious cases. Reporters could be assisted by guidance in making their decision as to whether or not to report.

4.17 In option (3) reporters would only be obliged to make reports for serious cases (however defined), but could voluntarily draw the attention of the UKFIU to non- serious cases by submitting a SAR.

4.18 Shearman & Sterling LLP, the Association of Accounting Technicians and American Express offered some support for option (3). Shearman & Sterling LLP noted it «would allow judgement to be exercised but would limit required disclosures to only those matters within scope of the ‘serious crime' definition.» It follows from the response of Government stakeholders that they would prefer to receive reports in all cases so that they retain the opportunity to assess the possible intelligence even in non-serious cases rather than relying on a voluntary SAR to flag up concerns.

4.19 Some stakeholders who favoured retaining an «all-crimes» approach also acknowledged the potential merit of option (2). For example, Freshfields Bruckhaus Deringer supported option (2), while Northumbria University noted it offered the greatest flexibility and Linklaters favoured a version of it.

4.20 Stakeholders who disagreed with option (2) stressed that it would be difficult to maintain a list, especially as new offences were created.

4.21 Most stakeholders expressed the view that each of the three alternative proposals suffered from a common problem: it will often not be apparent at the point of submitting a SAR what predicate crime may have been committed. The shift to a «serious crimes» approach may make the task of reporters more onerous, not less. So, for example, the Crown Prosecution Service («CPS») argued that the «all-crimes» approach «does not over-burden the drafting of a SAR nor require the identification of a predicate offence.»

4.22 This position was further explained in the response of Freshfields:

A narrower definition would mean that, in addition to identifying certain patterns of transactions as indicative of criminal conduct, compliance officers/systems would have to perform an investigative function to link a transaction to a specific crime before filing a SAR... .it is intelligence agencies, rather than reporting entities, that are best placed and qualified to investigate what the predicate offence which renders property criminal may be in any given context.

4.23 UK Finance concurred:

A reporter may observe suspicious transactional activity, which may indicate money laundering but cannot be linked to a predicate crime. reporters would be unable to consistently determine the predicate offence or the seriousness of the crime.

4.24 Not all professions in the regulated sector face the same difficulty in identifying predicate offending. It is notable that more than half of those responses that supported moving away from the «all-crimes» approach were from the legal sector.

4.25 These consultees cited examples where, in the conduct of due diligence investigations into a client, it was possible to identify precisely which minor offences and regulatory breaches had been or may have been committed. The combination of the detailed documentary evidence about the affairs of a business available during those investigations, coupled with the legal training of those processing the information in the law firm means that specific offences will often be readily identifiable.

4.26 There was also a perception that, where a minor or regulatory offence was identified, the intelligence value of these SARs was limited as they were unlikely to lead to a criminal investigation. Consultees variously suggested there was «no value», «no real value» or «little or no useful intelligence» to be gained from such reports. From this perspective these SARs merely detracted from the anti-money laundering scheme generally and reduced goodwill in the regulated sector.

4.27 On the other hand, Government stakeholders, including law enforcement agencies, stressed that the intelligence value of a SAR could not and should not be tied to specific crimes. For example, both the Metropolitan and City of London Police Services noted that serious and organised criminals also often commit less serious crimes. These police forces favoured the retention of an all-crimes approach on the basis that any given SAR could contribute to the broader intelligence picture and provide a «gateway» to disrupt criminality. The City of London Police, for example, suggested «what may seem like a fairly innocuous or insignificant piece of offending can actually be part of a much larger criminal enterprise.» The type of offence in itself may not in itself be decisive in determining the usefulness of the intelligence it generates.

4.28 One consultee, the Law Society of England and Wales, proposed a fourth option of a «de-scoped list»:

There are several types of SARs which clearly result in reporting de minimis issues. With thousands of criminal offences, deciding which do not produce useful intelligence would require extensive assessment and stakeholder consultation by the Law Commission. The results of the assessment could help determine which offences should be reportable, or preferably, produce a list of offences that would not need to be reported even where knowledge or suspicion of money laundering of proceeds derived from these offences was present. The latter approach would result in a shorter and more manageable list of offences, and one that all stakeholders could agree on. For the sake of brevity, we will call this approach a ‘de-scoped list' approach.

4.29 The de-scoped list could include failure to obtain certain licences or situations where the only benefit derived is a pecuniary advantage (except in the case of tax evasion). The list would have to be coupled with statutory reform or clear Government guidance that a reasonable excuse for failure to report offences on the list would be available. The reasonable excuse approach would allow - indeed, require - reports in cases where the predicate offence may be ‘de-scoped' but is not known to the reporter, solving the challenge of needing to identify the predicate offence.

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