Понедельник, 12 августа 2019

6. Analysis. Recommendations for reform

Analysis

6.21 Statutory guidance would provide greater clarity and allow those subject to reporting obligations to have a clearer understanding of the existing law. Existing guidance published by the NCA focusses primarily on good practice in the submission of a SAR. Statutory guidance would provide reporters with one definitive source to consult on the law. This would reduce the burden and cost on reporters by avoiding the need to consult multiple sources of information.

6.22 As we set out in chapter 3, statutory guidance would be produced under the oversight of an Advisory Board to ensure that it is most effective. As guidance can be amended and developed to respond to changing circumstances, it can provide an effective response in a dynamic area of law. It would ensure that the regime is resilient enough to cope with the continual change in this dynamic area. It would do so without overburdening reporters and the UKFIU. It would create a system which would be more responsive to developments in anti-money laundering and terrorist financing strategy.

6.23 The suggestion by some consultees that the scheme is working well is undermined by our data analysis discussed in chapter 2. Additionally, the responses of the members of the regulated sector quoted above demonstrate a clear demand for guidance.

6.24 The objection to guidance on this topic raised by the NCA appears to arise from a misunderstanding of what we provisionally proposed. The NCA identified a need for guidance on this issue because of misunderstandings by reporters in the application of the consent regime. We did not suggest in our Consultation Paper that such guidance should address the merits of a decision on consent which remains an operational matter and subject to the principles outlined in Home Office Circular 029/2008. We intend that guidance would be explanatory and focus on a grant of consent. In that way it would educate reporters before they lodge an authorised disclosure. Educating reporters in this way would help guard against unwarranted disclosures and the risk of inadvertently committing a criminal offence.

Recommendations for reform

6.25 We recommend that statutory guidance is issued on appropriate consent and that similar guidance be produced for the parallel provisions in 21ZA of the Terrorism Act 2000. This can be incorporated into a single authoritative source of guidance which we recommend should include the statutory concepts of suspicion and reasonable excuse.

Recommendation 10.

6.26 In accordance with recommendation 3, we recommend that statutory guidance is issued on appropriate consent within Part 7 of the Proceeds of Crime Act 2002 and arrangements with prior consent in accordance with section 21ZA of the Terrorism Act 2000.