Суббота, 10 августа 2019

6. Consultation

6.9 In the Consultation Paper we considered a number of options for reform. We discussed the merits and drawbacks of amending POCA to insert a term deemed to be more appropriate in describing what the consent regime is designed to achieve (eg exemption or immunity). We provisionally concluded that a change of label alone would be unsatisfactory and highlighted the problems with this approach.

6.10 We concluded that amending the legislation merely to change the term consent was not the right approach. Instead, we provisionally proposed that there should be a requirement in POCA that government produces guidance on the concept of «appropriate consent» under Part 7 of the Act. We did not propose similar guidance on arrangements with prior consent within the meaning of section 21ZA of the Terrorism Act 2000 for two reasons: the volume of disclosures is much lower than in the context of money laundering and the available evidence suggests that the current terrorist financing regime is working effectively. However, we did ask consultees whether similar guidance would be beneficial.

6.11 In chapter 3, we set out our reasoning for recommending statutory guidance on three key areas of the consent regime in principle. In the next section, we will outline consultees' responses on the merits of statutory guidance specifically in relation to appropriate consent. We will then move on to analyse those responses and consider the reasons why we are recommending the issuing of statutory guidance on the concept of appropriate consent.

6.12 Of those consultees who answered this question, the overwhelming majority were in favour of statutory guidance on «appropriate consent». Of a total of 30 responses from consultees on this question, 27 agreed with our provisional proposal. This support was mirrored in relation to whether guidance on consent within the scope of section 21A of the Terrorism Act 2000 was also required. Consultees saw a clear benefit in guidance on the concept of consent across both regimes.

6.13 Consultees recognised that there was continuing confusion surrounding the term «appropriate consent». The Investment Association, agreeing with our provisional proposal, observed that the introduction of the term «DAML SAR» has caused a degree of confusion. The Council for Licensed Conveyancers also agreed that statutory guidance could dispel confusion and help to ensure a level of consistency in its operation. The Association of Foreign Banks agreed that statutory guidance would remove any confusion of what consent means.

6.14 Simmons & Simmons also agreed with our provisional proposal and proposed that published statutory guidance should be the definitive place to advise on concepts rather than existing National Crime Agency («NCA») guidance such as «Submitting better quality SARs» and «DAML FAQs».

6.15 In addition to consultees in the regulated sector, two law enforcement agencies who make substantial use of SARs in the investigative process also agreed that statutory guidance would be beneficial. The Metropolitan Police Service («MPS») were in agreement with this proposal. The City of London Police stated that, if it was felt by reporters that greater clarity was needed on the more technical legal aspects of the consent regime, then statutory guidance would seem a logical choice. The City of London Police also noted that the term «consent» has been open to misinterpretation in the past, particularly in the mistaken perception that law enforcement agencies condoned a transaction when consent was granted. In addition, it also expressed its preference for statutory guidance to build on existing UKFIU guidance.

6.16 The Financial Conduct Authority («FCA») and the Law Society of Scotland were both in agreement with our provisional proposal. The Solicitors Regulation Authority («SRA») expressed approval for the consent regime as a whole and stated that:

It is useful to have the conversation about how well the consent regime functions, as it is probably the area that presents the most practical problems for law firms. That said, we believe that the current regime is functioning sufficiently well not to require changes. There is a balance to be struck between the exemption for the reporting body for a specific transaction that consent provides and the seven-day period for waiting for that consent to be granted (or denied). The waiting period is a natural consequence of wanting to receive consent, and we believe that the current system balances the benefits and difficulties well.

Guidance is helpful for clarifying the purpose and function of the consent regime, and statutory guidance would provide greater certainty for reporters.

6.17 Of those supervisory authorities who responded, only the Law Society of England and Wales disagreed with our provisional proposal stating that:

The NCA's DAML FAQs and the Legal Sector AML Guidance provide good advice to reporters on the meaning of «appropriate consent». We do not believe that it is the concept of consent or any synonyms that give rise to low value SARs.

6.18 The Proceeds of Crime Lawyers Association agreed in principle that statutory guidance could be helpful subject to its content. The Crown Prosecution Service («CPS») also agreed with our provisional proposal.

6.19 The NCA agreed in principle with exploring statutory guidance, however it disagreed with our provisional proposal in relation to appropriate consent, because, in its view «the legislation is clear» regarding consent.

6.20 Some consultees suggested that changing the terminology would be appropriate. For example, the National Casino Forum was in agreement with statutory guidance, but also observed that there is some merit in changing the phrase «appropriate consent» to «limited authority». In their view, this would be consistent with guidance contained in the letter of written clarification issued to a reporter upon the granting of consent.

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