Суббота, 10 августа 2019

6. Introduction. The current scheme


6.1 As we observed in our Consultation Paper, an understanding of the concept of «appropriate consent» is key to the functioning of the authorised disclosure exemption (DAML SARs). It is the mechanism which operates to prevent the commission of a money laundering offence by an individual, the official in the bank or other organisation carrying out a transaction, who has a suspicion that property is criminal in origin. However, it is a concept which is frequently misunderstood.

The current scheme

6.2 Appropriate consent is defined in section 335 of the Proceeds of Crime Act 2002 («POCA»). What is described is the legal power for the consent of a nominated officer (constable/customs officer) to be provided to the bank or other official in order for them to perform a prohibited act (carry out the suspicious transaction) if an authorised disclosure is made. The Terrorism Act 2000 mirrors the protections of POCA by providing for «arrangements with prior consent».

6.3 As we explained in our Consultation Paper the seeking and granting of consent has a practical function. When an individual in the reporting sector makes an authorised disclosure setting out their suspicion of criminal property, any financial transaction which the individual would otherwise have carried out is paused while the United Kingdom Financial Intelligence Unit («UKFIU») considers whether consent to do so should be granted.

6.4 In some cases, no decision will be communicated to the reporter at all which will eventually result in «deemed consent»: consent is presumed due to the absence of any formal decision within the statutory deadline.

6.5 The process of seeking and securing consent is intended to protect those who will inevitably encounter suspected criminal property in the course of business or in a professional capacity, although any individual can make a voluntary disclosure.

6.6 However, the effect of a grant of consent is limited: if granted or deemed it will exempt an individual from criminal responsibility for carrying out the transaction despite having suspicions about it, but it does not absolve others involved in the transaction who may be part of a money laundering scheme. If the property is indeed criminal in origin, it is not transformed or cleansed by a grant of consent. Future or related conduct by the original reporter or by a third party will still require consent in order to avoid criminal liability.

Evaluation of the current scheme

6.7 In our Consultation Paper we considered whether the terminology adopted in the present law was the most appropriate way of describing the formal process, or whether there were alternative terms that would improve, or more accurately describe the process. We pointed to some evidence that the term consent lacks clarity and is misunderstood by reporters. The consequence is that the UKFIU receive authorised disclosures which are unnecessary and may subsequently be withdrawn. These reports create an additional burden on the UKFIU.

6.8 We also highlighted recent developments to tackle misunderstanding such as the UKFIU's decision to use non-statutory guidance to move away from the statutory language. In July 2016, the UKFIU unilaterally adopted the terms «Defence Against Money Laundering» («DAML») and Defence Against Terrorist Financing («DATF») as direct replacements for the term «appropriate consent» and «arrangements with prior consent». Upon a grant of consent, the UKFIU includes written clarification as to the effect of this. It clarifies that the grant of a request does not cleanse the property or the transaction; absolve individuals from their professional conduct duties or regulatory requirements, or provide any defence from other criminal or regulatory offences.

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