Пятница, 09 августа 2019

5. Prescribed form

5.67 In our Consultation Paper we made the case for a prescribed form for the submission of SARs. We proposed that the information required for a disclosure and the form it should take could be set out in secondary legislation. The Secretary of State already has the power to prescribe the form and manner in which a required or authorised disclosure is made. We argued that it would go hand in hand with our proposal for guidance on suspicion by giving greater direction to reporters as to what was required of them.

5.68 The majority of consultees agreed with our proposal for a prescribed form: 30 consultees saw the merits in this approach and six consultees dissented. Overall 83% in of those who responded to this question were supportive. The Solicitors Regulation Authority («SRA») stated:

We believe that prescribing a form for reporting would improve the efficiency of the SARs regime. We would expect anyone within our supervised population to be able to set out exactly why they are suspicious.

5.69 Of the small number who disagreed with our provisional proposal, most assumed that a prescribed form would necessarily be too restrictive. They were concerned that a prescribed form might inhibit the reporter from presenting the information they had in the way they thought might best assist the UKFIU. Bobby Hussain, an individual who responded to our Consultation Paper stated:

A prescribed form would be too restrictive for each and every firm to use. However, it should be a mandatory requirement to include reasons and grounds for raising a SARS.

5.70 American Express were also concerned with a «tick-box» format without free-form space:

We disagree with the introduction of a prescribed form directing the reporter to provide grounds for their suspicion. If a prescribed form is introduced in a tick-box format (or similar) and reporters have to articulate evidence-based grounds for a suspicion, we believe this will have a detrimental effect on the scope of reporting as it stands today. We continue to see new types of fraudulent behaviour on our products, and having a free format to articulate those grounds will better capture our industry-specific risks. With a prescribed format, on the other hand, there is the risk that suspicions will not be reported if they do not fall within the pre-determined categories. In short, we cannot see that having a prescribed form would add efficiencies or improve the quality of disclosures.

5.71 The Building Societies Association disagreed with our proposal but did so on the basis that it was unnecessary for a prescribed form to be introduced «via POCA». It stated:

This is already underway as part of requirements assessment for the SAR Reform Programme and we don't consider it necessary for prescribed forms to be introduced via POCA. The scope for sector-specific SAR forms is part of this assessment but is likely to be dependent on the IT solutions adopted for SAR reporting management.

In the interim, it has always been best practice when completing a SAR for the reporter to provide specific, evidence-based grounds for their suspicions. The NCA and its predecessors have had a continuing dialogue with reporters in the financial services sector on making sure that SARs contain all the information that law enforcement needs for them to take an investigation forward and this has resulted in better quality SAR reporting. If there are still sectors where reporters are not providing evidence-based grounds for their suspicions when reporting as SAR there is the option for the NCA to work with reporters in the same way. The ultimate remedy is for the NCA to send the SAR straight back to the reporter for it to be properly completed until reporting standards are driven up.

5.72 We also asked consultees whether sector-specific forms, designed in collaboration with a representative panel from the NCA, law enforcement agencies and the various reporting sectors, would be beneficial. Consultees were more divided on this issue. Of the 32 responses to this question, 19 consultees thought that creation of separate forms was the optimal solution and 13 were in favour of a single form. However, the consultees in support of separate forms all work on the front line in terms of processing reports within the consent regime. The NCA, UK Finance, the FCA and the City of London Police all argued for separate forms. The majority of consultees working in the regulated sector who responded to this question were also in favour of separate forms.

5.73 Both the Law Society of England and Wales and the Solicitors Regulation Authority («SRA») argued that a single form was preferable. The Law Society of England and Wales made a strong case for an interactive online form and stated that:

We do not believe that a proliferation of sector-specific forms would be helpful. Instead, a new interactive form could determine at the outset whether the transaction that is being reported is, for example, a monetary or a conveyancing one (regardless of the reporter's sector). If yes, questions specific to monetary or conveyancing transactions could follow, for example on the client's bank account details or the value of the property at the heart of the transaction. We would be glad to assist in the design of such a form, perhaps through a further stage in the SARs reform programme.

5.74 Whilst the Law Society of England and Wales did not advocate sector-specific forms, there is broad agreement on the need for tailoring forms to suit the individual reporter.

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