Вторник, 06 августа 2019 апдейт:

5. Issue. Defining suspicion. Analysis. Recommendation

The issue

5.34 In our Consultation Paper we observed that concerns about the lack of clarity in the definition of suspicion had emerged only a short time after POCA had come into force. These concerns have not abated.

5.35 The consultation responses revealed a similar picture. Consultees made specific comments regarding their concerns about the quality of disclosures being lodged with the UKFIU. Dickson Minto stated in their response that they were troubled by the quality of intelligence that they were providing to the UKFIU:

Almost all of the SARs which we have submitted to the National Crime Agency under section 330 of the Proceeds of Crime Act 2002 relate to matters that we do not believe are of general use to the NCA nor to the prevention of financial crime but which we are required to act upon given the broad scope of the legislation.

5.36 The Serious Fraud Office («SFO») agreed that «there are too many inappropriate authorised disclosures from the financial sector which lack real evidence and detail of suspicion». The SFO also highlighted a general issue with the quality of reports:

...we see the narrative is often unduly long, written poorly with no punctuation making them hard to understand, and lack focus on the subject and the actual reason for suspicion.

5.37 During the consultation period we encountered many people, including nominated officers working within the consent regime who believed that they understood the disclosure obligations in Part 7 of POCA but in fact misunderstood or misapplied them. There were frequent differences of opinion over the interpretation of important legal concepts.

5.38 In our Consultation Paper, we provisionally proposed several changes aimed at improving the quality and consistency of reporting. We proposed a number of alternatives which ranged from smaller changes to significant amendments to the existing regime.

5.39 The options for reform were presented in a hierarchy as follows:

(1) defining suspicion in POCA;

(2) amending POCA to include a statutory requirement that Government produce guidance on the suspicion threshold in conjunction with a prescribed form for making disclosures;

(3) adopting an alternative threshold to suspicion, namely «reasonable grounds to suspect» as interpreted in R v Saik accompanied by similar statutory guidance to assist reporters.

Defining suspicion

5.40 We provisionally concluded in our Consultation Paper that a lack of clarity of definition may be contributing to defensive reporting, and even the inadvertent commission of offences. We observed that one solution might be to amend POCA to include a statutory definition of suspicion. We identified two problems with such an approach. As a matter of principle, an ordinary English word should only be defined in law where it is to take on a specific legal meaning distinct from the natural English one. There are also considerable practical difficulties in formulating a precise yet practical legal definition which would add something to the ordinary, natural meaning of the word.

5.41 We asked consultees whether suspicion should be defined and if so how it might be defined. Twenty-seven responses out of 36 agreed that defining suspicion would be problematic. Professor Peter Alldridge was not in favour of defining suspicion. Corruption Watch felt that there was already sufficient case law which defined suspicion although they proposed that guidance which summarised the case law in a succinct manner would be useful.

5.42 Slaughter and May observed that:

...our view is that attempting to define what is a normal English word may leave potential reporters in a difficult position where they may feel suspicious in the ordinary sense of but not meet the elements of the definition.

5.43 The City of London Police acknowledged that while initially attractive, formulating a definition of suspicion would be limiting with the focus shifting to the areas that fell well within the definition. Its preferred solution was the provision of guidance on suspicion to make the boundaries clearer:

This would still allow some flexibility within the definition to cope with the particular circumstances of the case but provide a better framework thereby allowing a clearer articulation as to why someone has suspicion than is currently provided by the very vague case law available touching on the subject.

5.44 Nine consultees believed that suspicion should be defined in POCA.

5.45 The Crown Prosecution Service («CPS») acknowledged the potential difficulties that arose from attempting to define suspicion. Notwithstanding the challenges, the CPS considered that a statutory definition would assist by focussing on «articulating identified and specific facts and then in turn the inferences which may be drawn from these». The CPS felt that a statutory definition would make the law clearer but would also «shape and assist proper and better reporting». The CPS concluded that:

...Given the spectrum of potential definitions and a variance in how persons interpret and understand this concept.a statutory definition would assist. That is particularly so in shaping how reporters may be required to express and explain the report they make. We would deprecate the suggestion that suspicion is a «feeling» and cannot be defined more clearly than this and we are attracted by the formulation in Terry v Ohio.

We would suggest that suspicion requires:

a. specific and articulable facts;

b. from which rational, specific and articulable inferences can be drawn;

c. which indicate the possibility that a state of affairs may exist;

d. accompanied by a realisation by a person that the state of affairs may exist [if the mens rea is not simply to be limited to actual knowledge of the facts as of point a.]

5.46 The Association of Accounting Technicians were also in favour of a clear definition of suspicion. They noted that this was an issue which was raised on a regular basis by its members:

As a result of the current lack of definition it is likely, indeed inevitable, that the quality and consistency of reporting is being affected.

5.47 Dickson Minto submitted that it would be helpful for suspicion to be defined in the legislation while conceding that formulating a definition would be challenging:

We believe that ideally it would be helpful for suspicion to be defined in the legislation. We agree that the lack of clarity will most certainly have contributed to the increase in the volume of SARs. However, we appreciate that drafting a new definition would not be a straightforward exercise.

Analysis

5.48 In our Consultation Paper, we concluded that an ordinary English word should only be defined where it is to be qualified in some way. Furthermore, we identified significant practical difficulties in attempting to define a word of ordinary English meaning.

Consultees' responses to this question demonstrated an acceptance of these limitations and, with the exception of the CPS, no consultee proposed a new definition. The Terry v Ohio formulation, which is taken from a very different context in a different jurisdiction, arguably imports a standard of reasonableness rather than simply defining suspicion. In addition, as we outlined in our Consultation Paper the qualitative concepts of «articulable reasons» or indeed that of founded suspicion have been criticised as falling short of providing clear guidelines. The alternative, and in our view, better approach is to assist reporters with the application of suspicion rather than attempting to define it.

Recommendation

5.49 Having considered the arguments and the degree of consensus amongst consultees that a definition of suspicion is unwarranted and likely to be unworkable in practice, we do not recommend amending POCA to define suspicion. In the next section, we will suggest that the provision of guidance on the suspicion threshold is a better approach to improving the application of suspicion by reporters in order to increase the quality of disclosures.

Recommendation 6.

5.50 We do not recommend that an amendment should be made to the Part 7 of the Proceeds of Crime Act 2002 to define suspicion.

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