Вторник, 30 июля 2019 апдейт:

1. Money laundering and the UK's legal response

1.5 Money laundering, in very general terms, describes the processing of criminal property in order to disguise its illegal origin. As Professor Liz Campbell observes:

There is a lack of clarity as to the scope of the concept of money laundering, rendering it difficult to study and to measure. Legally the term encompasses not only the orthodox understanding of the «cleaning» of assets, but also their concealment, conversion, transfer and removal.

1.6 The Government's Serious and Organised Crime Strategy, published in November 2018, described the problem of illicit funds faced by the UK:

.. .illicit finance involves the holding, movement, concealment, or use of monetary proceeds of crime that has an impact on UK interests. Organised crime groups and corrupt elites launder the proceeds of crime through the UK to fund lavish lifestyles and reinvest in criminality.

The vast majority of financial transactions through and within the UK are entirely legitimate, but its role as a global financial centre and the world's largest centre for cross-border banking makes the UK vulnerable to money laundering. There is a realistic possibility that the scale of money laundering impacting the UK annually is in the tens of billions of pounds.

The UK's anti-money laundering framework

1.7 As we explained in our Consultation Paper, our focus in this review is on four aspects of the existing anti-money laundering and counter-terrorist financing regimes in the UK.

1.8 Part 7 of the Proceeds of Crime Act 2002 created:

(1) three offences of money laundering which apply to the proceeds of any criminal offence;

(2) legal obligations to report suspected money laundering bolstered by criminal offences for failures to disclose;

(3) a complementary «consent regime» of authorised disclosures (Defence Against Money Laundering or (DAML SARs)); this offers the UKFIU («UKFIU»), which is part of the National Crime Agency («NCA») the opportunity to grant or refuse consent to proceed with a transaction. Where consent is granted, the reporter is protected from criminal liability for what might otherwise have been a money laundering offence under sections 327 to 329 of POCA; and

(4) a prohibition on warning any person not authorised to receive the information that a report had been made to the authorities or an investigation had begun («tipping off»).

1.9 A parallel regime operates in relation to counter-terrorist financing and is contained in Part 3 of the Terrorism Act 2000. As we identified in our Consultation Paper, our focus has primarily been on Part 7 of POCA as, first, the number of terrorist financing SARs in which consent was sought is relatively small and, secondly, stakeholders were broadly in agreement that the issues identified in relation to the consent regime under Part 7 of POCA are not replicated in relation to counter-terrorist financing.

1.10 The anti-money laundering and counter-terrorist financing framework is supplemented by the Financial Action Task Force Recommendations and European Union («EU») Directives.

The money laundering offences

1.11 Part 7 of POCA creates three principal money laundering offences.

1.12 The offences in sections 327, 328 and 329 of POCA are intended to criminalise specific acts of money laundering. A person commits an offence of money laundering if he or she:

(1) conceals; disguises; converts; transfers; or removes criminal property from England and Wales, Scotland or Northern Ireland; or

(2) enters into or becomes concerned in an arrangement which he or she knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person;10 or

(3) acquires criminal property; uses criminal property; or has possession of criminal property.

1.13 There are a number of legal exemptions and defences to the principal money laundering offences which were discussed in detail in our Consultation Paper.12 However, our focus is on the consent regime which is underpinned by the authorised disclosure exemption. This exemption applies to any individual but for the purposes of this report, we focus on how the exemption relates in practical terms to individuals in banks and businesses who encounter suspected criminal property. In the next section, we deal with some of the key concepts in Part 7 of POCA and look at the legislative framework of the disclosure regime.

Key concepts

1.14 There are three important concepts common to the money laundering offences which are examined in detail below: «criminal property», «suspicion» and «criminal conduct».

Criminal property

1.15 Each of the principal money laundering offences is conditional upon the action in question (eg transferring or using) being done in relation to «criminal property». If the property is not criminal in nature, the principal offences in sections 327 to 329 of POCA are not committed.

1.16 For property to be «criminal», for the purposes of Pt 7 of POCA, it must satisfy two conditions:

(1) it must constitute a person's benefit from criminal conduct or represent such a benefit (in whole or in part and whether directly or indirectly); and

(2) the alleged offender must know or suspect that it constitutes or represents such a benefit.

1.17 A person will be considered to have benefited from criminal conduct if he or she obtains some property (or other financial advantage) as a result of or in connection with the conduct.

1.18 Criminal property has been broadly defined by the legislation. Whilst criminal proceeds may take the form of cash, more sophisticated levels of laundering are also accounted for. The definition would include a house or a car purchased with the proceeds of criminal activity. Criminal property is not restricted to physical money in the form of notes and coins. A credit balance on a bank account or equity shares in a company would fall within this wide definition.

Suspicion

1.19 Suspicion is a key component of the money laundering offences. It is the minimum mental state required for the commission of an offence under sections 327, 328 and 329. The fact that a person suspects that property is criminal may, depending on the circumstances, also trigger a reporting obligation under sections 330, 331 and 332 which will be considered below. In the absence of a statutory definition or guidance, it has been left to the courts to determine what «suspicion» means.

1.20 In the context of money laundering, the leading authority on the meaning of suspicion is R v Da Silva. In this case, the Court of Appeal considered the correct interpretation of suspicion within the meaning of section 93A(1)(a) of the Criminal Justice Act 1988 (the predecessor to the Proceeds of Crime Act 2002):

What then does the word «suspecting» mean in its particular context in the 1988 Act? It seems to us that the essential element in the word «suspect» and its affiliates, in this context, is that the defendant must think that there is a possibility, which is more than fanciful, that the relevant facts exist. A vague feeling of unease would not suffice. But the statute does not require the suspicion to be «clear» or «firmly grounded and targeted on specific facts», or based upon «reasonable grounds».

Criminal conduct

1.21 Criminal conduct is defined broadly as conduct which «constitutes an offence in any part of the United Kingdom». The UK's approach to money laundering is described as an «all-crimes» approach. That means simply that laundering the proceeds of any crime of any value whatsoever will amount to the offence. It is not limited to serious crimes, certain types of offending, or those punishable with imprisonment.

1.22 Criminal conduct is conduct which:

(a) constitutes an offence in any part of the United Kingdom; or

(b) would constitute an offence in any part of the United Kingdom if it occurred

there.

1.23 Conduct abroad which would be legal in that country but unlawful somewhere in the United Kingdom is sufficient. For example, conduct that took place in Egypt might amount to fraud in the UK and would therefore be criminal conduct for the purposes of section 340 of POCA. However, the limited exceptions to this will be discussed further at paragraph 2.73 below.

1.24 There is no temporal limit to criminal property; it does not matter whether the criminal conduct occurred before or after the passing of POCA. If the property is generated by criminal activity at any stage, its use in any of the ways described in sections 327 to 329 is proscribed. For example, if an offender stole a painting and kept it for decades, it would remain criminal property regardless of the passage of time. It is an «all-crimes» «for all time» approach.

Authorised disclosures

1.25 An individual who suspects that they are dealing with the proceeds of crime can seek consent to complete a transaction by disclosing their suspicion to the UK Financial Intelligence Unit («UKFIU»), a function as part of the National Crime Agency («NCA»). A money laundering offence is not committed under sections 327 to 329 of the Proceeds of Crime Act 2002 where a person makes an «authorised disclosure» to the authorities and acts with «appropriate consent». The money laundering offences are widely drawn and the fault threshold for criminality, currently set at suspicion, is a low one. In addition, the all-crimes approach means that the proceeds of any criminal activity are caught by the offences in 327 to 329 of POCA. To balance this, the opportunity to obtain consent by making an authorised disclosure offers comfort and necessary legal protection, particularly to those who may, in the course of their profession, encounter property which they are suspicious may have criminal origins. Without such an exemption, such a low threshold would have a far-reaching impact and potentially place a large number of people at risk of criminal liability. For example, this exemption would apply where bank official suspects criminal property is in an account. That fact can be disclosed to the authorities and consent obtained to continue to process relevant transactions. An employee of a bank may frequently encounter situations in which they suspect property is criminal in origin and the authorised disclosure exemption mitigates the effect of such wide offences.

1.26 For a disclosure to be authorised, it must be made to either a nominated officer (a person nominated within a company, firm or other organisation to receive reports of suspicious activity), a constable, or a customs officer. The matter disclosed is that the property is known or suspected to be criminal property.

1.27 The timing of the disclosure is important. To benefit from the exemption, the disclosure must be made either:

(1) before the transaction is undertaken;

(2) during a transaction if the reporter only suspected that they were dealing with criminal property once they had begun to handle the property; or

(3) after the fact, if there was a reasonable excuse.

1.28 If the disclosure is made during or after the transaction has taken place, the disclosure must be made on the reporter's own initiative and as soon as is practicable after the knowledge or suspicion arose.

1.29 In broad terms, in return for their authorised disclosure, if consent is not refused by the UKFIU, the reporter receives protection against criminal liability for a money laundering offence. Therefore, authorised disclosures have a dual function: they both provide intelligence to law enforcement agencies (police forces in the relevant region), and may shield the reporter from relevant criminal liability. This process is known as the «consent regime». For example, a bank may become suspicious that funds in a customer's account represent the proceeds of crime. If the customer asks the bank to make a payment in accordance with their mandate, the bank will make a disclosure to the UKFIU to obtain consent to proceed with the transaction. Provided consent is not refused, the reporter will be brought within a statutory exemption which effectively precludes any future money laundering charge against the reporter in relation to that transaction.

1.30 The UKFIU facilitates the disclosure process by acting as the intermediary for intelligence between the private sector and law enforcement agencies. When an authorised disclosure is submitted, it is analysed by UKFIU and made available to law enforcement agencies who will investigate and decide whether to take further action. Because of the time it takes to conduct an investigation and intervene to preserve criminal assets, the authorised disclosure scheme requires the reporter to refrain from processing the transaction as they will not be protected by the statutory exemption if they undertake one of the prohibited acts in section 327-329 without appropriate consent. This allows time for the UKFIU to take a fully informed decision on whether to consent to the transaction proceeding.

Required disclosures

1.31 The legislation distinguishes between two types of disclosure that are made to the UKFIU: «required disclosures» and «authorised disclosures.» The important distinction is between whether the disclosure is required by law or whether the reporter wishes to protect themselves from a potential money laundering charge and makes a voluntary disclosure. If a reporter fails to lodge a SAR in accordance with their obligations under Part 7 of the Proceeds of Crime Act 2002, he or she may be liable for prosecution for one of three disclosure offences, depending on his or her status and whether they were acting within or outside the regulated sector.

1.32 As outlined above, a reporter is obliged to disclose their suspicion that another person is engaged in money laundering. This is known as a «required disclosure». If a disclosure is not made, the person who ought to have reported is liable to be prosecuted for a criminal offence.

The regulated sector

1.33 The regulated sector is defined in Schedule 9 to the Proceeds of Crime Act 2002 and the original definition has been amended by various legislative provisions and EU law. Broadly, the regulated sector encompasses businesses where their activity presents a high risk of money laundering or terrorist financing. Businesses may be included within the definition by virtue of the type of activity they undertake. For example, the acceptance by a credit institution of deposits or other repayable funds from the public, or the granting by a credit institution of credits for its own account brings banks into the regulated sector. A firm of solicitors who undertake conveyancing work would be included as they are «participating in the buying or selling of real property» and would fall within the definition in Schedule 9. In addition, those who trade in goods are brought within the regulated sector whenever a transaction involves the making or receipt of a payment or payments in cash of at least €10,000 in total. This threshold applies whether the transaction is executed in a single operation or in several operations which appear to be linked, by a firm or sole trader who by way of business trades in goods. However, as the nature of the activity is relevant, it is possible that a business may undertake some work which falls within the definition of the regulated sector and other work which does not.

Failure to disclose by those working within the regulated sector

1.34 Section 330 applies to a person acting in the «course of a business in the regulated sector» who fails to make a «required disclosure». Disclosure is required where four conditions are met:

(1) he or she «knows or suspects» or has «reasonable grounds for knowing or suspecting») that another person is engaged in «money laundering»;

(2) the information or other matter on which his or her knowledge or suspicion is based or provides reasonable grounds for suspicion must have come to him or her in the course of business in the regulated sector;

(3) he or she can identify the person engaged in money laundering or the whereabouts of any of the laundered property; and

(4) he or she believes, or it is reasonable to expect him or her to believe, that the information or other matter will or may assist in identifying the person or the whereabouts of any of the laundered property.

1.35 The information which the reporter is required to disclose is:

(1) the identity of the person, if he or she knows it;

(2) the whereabouts of the laundered property, so far as he or she knows it;

(3) information that will or may assist in identifying the other person or the whereabouts of any of the laundered property.

1.36 An offence is committed when a person does not make the required disclosure to either the nominated officer or the UK Financial Intelligence Unit as soon as is practicable after the information comes to him or her.

Failure to disclose by nominated officers working in the regulated sector

1.37 Section 331 applies to «nominated officers» who operate in the «regulated sector». A nominated officer is a person who is nominated within a firm, company or other organisation to submit SARs on its behalf to the United Kingdom Financial Intelligence Unit. If an employee has a suspicion, the nominated officer must evaluate the information reported and decide whether, independently, he or she has knowledge, or a suspicion or should have reasonable grounds to suspect money laundering based on what he or she has been told.

1.38 The nominated officer's obligation to disclose arises where he or she receives a required disclosure from another person (pursuant to section 330 of the Proceeds of Crime Act 2002) informing them of a knowledge or suspicion of money laundering. The nominated officer must decide if he or she is obliged to lodge a SAR by considering whether the following three conditions apply:

(1) He or she knows or suspects or has reasonable grounds to know or suspect, that another person is engaged in «money laundering»; or

(2) the information or other matter on which their knowledge or suspicion is based, or which gives them reasonable grounds for suspicion, came to them in consequence of a disclosure made under section 330; and

(3) he or she:

(a) knows the identity of the person engaged in money laundering or the whereabouts of any of the laundered property, in consequence of a disclosure made under section 330;

(b) can identify the person or whereabouts of the laundered property can from the information of other matter; or

(c) they believe, or it is reasonable to expect them to believe, that the information or other matter will or may assist in identifying the person or the whereabouts of any of the laundered property.

1.39 The information which the reporter is required to disclose is:

(1) the identity of the person, if disclosed in the section 330 report;

(2) the whereabouts of the laundered property, so far as disclosed in the section 330 report; and

(3) information that will or may assist in identifying the other person or the whereabouts of any of the laundered property.

1.40 An offence is committed when a person does not make the required disclosure to either the nominated officer or the UKFIU as soon as is practicable after the information comes to him or her.

Failure to disclose by other nominated officers

1.41 Section 332 applies to nominated officers other than those acting within the regulated sector. For example, a high street chain of jewellery shops may typically conduct transactions which fall below the transaction threshold of 10,000 Euros necessary to bring them within the regulated sector. If the nominated officer of this high street chain fails to make a required disclosure in accordance with section 332, he or she is at risk of criminal liability under that section.

1.42 Disclosure is required where the following three conditions are made out:

(1) he or she knows or suspects that another person is engaged in money laundering;

(2) the information or other matter on which his or her knowledge or suspicion is based came to him or her in consequence of a disclosure either under section 337 (a protected disclosure) or 338 (an authorised disclosure); and

(3) he or she:

(a) knows the identity of the person, or the whereabouts of any laundered property in consequence of the disclosure he or she received; or

(b) the person, or the whereabouts of any of the laundered property, can be identified from the information or other matter received; or

(c) he or she believes, or it is reasonable to expect him or her to believe, that the information or other matter will or may assist in identifying the person or the whereabouts of any of the laundered property.

1.43 The information which the reporter is required to disclose is:

(1) the identity of the person, if disclosed to him or her;

(2) the whereabouts of the laundered property, so far as disclosed to him or her;

(3) any information or matter disclosed to him or her that will or may assist in identifying the other person or the whereabouts of any of the laundered property.

1.44 An offence is committed when a person does not make the required disclosure to either the nominated officer or the UKFIU as soon as is practicable after the information comes to him or her.

Tipping-off

1.45 Part 7 of POCA also includes provisions designed to ensure the subject of a SAR is not made aware of any ongoing investigation into his or her finances. In our Consultation Paper we noted, for example, if a bank employee were to inform the subject of an investigation that a SAR had been submitted to the authorities, this could seriously affect the outcome of any investigation. It may also place the reporter in jeopardy if only a small circle of people could have known about the transaction or provided particular matters of personal information. Whilst certain disclosures are permitted, others are prohibited if they risk «tipping-off» a suspect in a criminal investigation.

1.46 Under section 333A of POCA, it is an offence to disclose:

(1) the fact that a disclosure (a suspicious activity report) under Part 7 of the Proceeds of Crime Act 2002 has been made; or

(2) that an investigation into allegations of a money laundering offence is being contemplated or is being carried out.

1.47 In addition, the following two conditions need to be satisfied:

(1) the disclosure must be likely to prejudice any investigation; and

(2) the information on which the disclosure is based must have come to the person in the course of business in the regulated sector.

1.48 Section 21D of the Terrorism Act 2000 creates an offence for tipping-off in relation to counter-terrorist financing investigations.

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