Anti-money laundering: the Suspicious Activity Reports regime.

Отчет законодательной комиссии Великобритании от 2019 года о недостатках порядка направления в органы информации в отношении действий, которые могут нарушать законодательство о противодействии отмыванию денег. Общий вывод отчета: порядок направления информации о подозрительных действиях следует реформировать. Полный текст отчета на английском языке.

Вторник, 30 июля 2019 апдейт:

Report Glossary

(1) Account Freezing Order - Account Freezing Orders allow a variety of law enforcement agencies to apply to the magistrates' court to freeze bank accounts they suspect hold criminal property. The relevant provisions are set out in sections 303Z1 to 303Z3 of the Proceeds of Crime Act 2002.

(2) Action Fraud - Action Fraud is the reporting mechanism for the National Fraud Intelligence Bureau within the City of London Police.

(3) Advisory Board - Advisory Boards are usually independent bodies with a remit to review or evaluate a particular part of the law.

(4) Authorised disclosure - Authorised Disclosures are voluntary disclosures, triggered when a person has a suspicion that they have encountered criminal property and wishes to do one of the acts prohibited in sections 327-329 of the Proceeds of Crime Act 2002. He or she may make an authorised disclosure to a constable (including officers in the UK Financial Intelligence Unit (“UKFIU”)), customs officer or nominated officer. Authorised disclosures are made by filing a suspicious activity report (SAR, see below).

(5) Association of British Insurers - The Association of British Insurers (“ABI”) is the leading trade association for insurers and providers of long-term savings.

(6) The British Private Equity and Venture Capital Association - The British Private Equity and Venture Capital Association (“BPEVCA”) is the industry and public policy advocate for the private equity and venture capital industry.

(7) Code of practice - A code of practice is an authoritative statement of practice to be followed in some field. It typically differs from legislation in that it offers guidance rather than imposing requirements.

(8) Consent regime - The consent regime refers to the process by which a person who suspects he or she is dealing with the proceeds of crime can seek consent to complete a transaction by making an authorised disclosure to the United Kingdom Financial Intelligence Unit. No criminal offence is committed where an authorised disclosure is made and appropriate consent to proceed with an act otherwise proscribed by sections 327 to 329 of the Proceeds of Crime Act 2002 is given.

(9) Criminal property - Criminal property is defined in section 340 of the Proceeds of Crime Act 2002 as property that constitutes a person's benefit from criminal conduct (in whole or part and whether directly or indirectly) where the alleged offender knows or suspects that it constitutes or represents such a benefit.

(10) Defence against Money Laundering - (“DAML”) The term used by the UKFIU to describe an authorised disclosure in which the suspicion relates to money laundering - see above, where a reporter seeks a defence to an offence under the Proceeds of Crime Act 2002.

(11) Defence against Terrorist Financing - (“DATF”) of the term used by the UKFIU to describe an authorised disclosure in which the suspicion relates to terrorism financing - see above, where a reporter seeks a defence to an offence under the Terrorism Act 2000.

(12) Debanking - The practice of withdrawing banking facilities from a customer due to the perceived risk he or she presents to the bank.

(13) ELMER - refers to the computerised system used by the UKFIU to process SARs. Reports are stored on the ELMER database for six years and may be accessed by a law enforcement agency during that time.

(14) Financial Action Task Force - The Financial Action Task Force (“FATF”) is an intergovernmental body whose objectives are to set standards and promote effective implementation of legal, regulatory and operational measures for combatting money laundering, terrorist financing and other related threats to the integrity of the international financial system.

(15) Financial Conduct Authority - The Financial Conduct Authority (“FCA”) is the conduct regulator for 58,000 financial services firms and markets in the United Kingdom.

(16) Fourth Anti-Money Laundering Directive - This is the fourth European Union directive to address the risk of money laundering.

(17) Further Information Orders - Further Information Orders (“FIOs”) can be sought on application to the magistrates' court. An FIO can require the person making a disclosure (to the United Kingdom Financial Intelligence Unit) or any person carrying on a business in the regulated sector to provide specified information, or any other information that the court deems appropriate, in relation to a matter arising from a disclosure under Part 7 of the Proceeds of Crime Act 2002.

(18) Geographic Targeting Order - A Geographic Targeting Order (“GTO”) is a specific form of thematic reporting, focussing on a particular location where a transaction or activity is occurring.

(19) High street bank - A high street bank is a credit institution which offers banking services to the general public. The term is generally reserved for larger, more widespread organisations with multiple branches.

(20) High value dealers - Under the Money Laundering Regulations, a high value dealer is any business or sole trader that accepts or make cash payments of €10,000 or more (or equivalent in any currency) in exchange for goods.

(21) Historical crime - For the purposes of this publication a “historical crime” refers to an offence perpetrated more than five years before an authorised disclosure was made to the United Kingdom Financial Intelligence Unit.

(22) Her Majesty's Revenue & Customs - Her Majesty's Revenue and Customs (“HMRC”) is a non-ministerial department of the UK Government responsible for the collection of taxes, the payment of some forms of state support and the administration of other regulatory regimes.

(23) Indictable offence - An indictable offence is an offence which, if committed by an adult, is triable on in the Crown Court before a judge and jury, whether it is exclusively so triable or triable either way.

(24) Home Office Circular - Home Office Circulars are documents used to communicate, or provide updates on Home Office policies.

(25) Joint Money Laundering Intelligence Task Force - The Joint Money Laundering Intelligence Task Force (“JMLIT”) is a public-private partnership that facilitates information sharing between banks in the regulated sector and law enforcement agencies. It operates in accordance with the information gateway provisions contained in the Crime and Courts Act 2013.

(26) Law enforcement agency - Law enforcement agencies (“LEA”) are organisations with responsibility for enforcing the criminal laws of the United Kingdom. In this context law enforcement agencies include, the National Crime Agency, the police and other bodies such as the Serious Fraud Office who investigate suspected money laundering and associated criminality.

(27) Money Laundering Reporting Officer (“MLRO”) - Under FCA rules, a firm must appoint an individual as MLRO, with responsibility for oversight of its compliance with the FCA's rules on systems and controls against money laundering. The job of the MLRO is to act as the focal point within the relevant firm for the oversight of all activity relating to anti-money laundering. The MLRO may also act as the “nominated officer”, an individual with responsibility within a firm, company or other organisation to submit SARs to the UKFIU (see below).

(28) Money Service Business - A business which operates as a currency exchange office, transmits money (or any representation of monetary value) by any means or cashes cheques which are made payable to customers.

(29) Mandate - A service contract between a customer and their bank which gives the bank authority to act on the customer's behalf.

(30) Moratorium period - if a request for consent is refused during the statutory seven-day notice period, a statutory moratorium period of 31 calendar days begins. This allows further time for investigation. The Criminal Finances Act 2017 amended Part 7 of POCA to empower a Crown Court judge to grant an extension to the moratorium period up to a further 186 days in total on application.

(31) Nominated Officers - The nominated officer's obligation to disclose only arises where they receive a required disclosure from another person (pursuant to section 330 of POCA) informing them of a knowledge or suspicion of money laundering.

(32) National Crime Agency - The National Crime Agency is a non-ministerial government department with oversight of national law enforcement agencies in the United Kingdom. It is the UK's lead agency against organised crime; human, weapon and drug trafficking; cyber-crime; and economic crime that goes across regional and international borders, but can be tasked to investigate any crime.

(33) Proceeds of Crime Lawyers Association - The Proceeds of Crime Lawyers Association (“POCLA”) is an association of lawyers established to foster and encourage best practice in matters involving the proceeds of criminal conduct.

(34) Pecuniary advantage - In this report, a “pecuniary advantage” refers to a financial advantage (other than property) obtained through criminal conduct. Section 340 of the Proceeds of Crime Act 2002 deems a person to have obtained a sum of money equivalent to any pecuniary advantage they have obtained.

(35) Predicate offence - A criminal offence which generates the proceeds of crime that may become the subject of any of the money laundering offences.

(36) Principal money laundering offences - Refers to the criminal offences in sections 327 to 329 of the Proceeds of Crime Act 2002 that prohibit particular dealings with actual or suspected criminal property and can be contrasted with the failure to report offences.

(37) Reporter - We use the term reporter to mean a person who has either an obligation to report under Part 7 of POCA or who makes a voluntary disclosure seeking consent in order to protect themselves from a committing a money laundering offence under Part 7 of POCA.

(38) Required disclosure - Refers to the statutory obligation to make a report where a person knows or suspects, or has reasonable grounds to know or suspect that a person is engaged in money laundering. A failure to make a required disclosure is a criminal offence for which reporters can be found personally liable. Required disclosures provide law enforcement agencies with intelligence and the opportunity to disrupt criminality.

(39) Safe harbour - For the purposes of this report a “safe harbour” refers to the notion that compliance with relevant guidance should provide reporters with a defence to a criminal offence under Part 7 of the Proceeds of Crime Act 2002.

(40) Serious Organised Crime Agency - The Serious Organised Crime Agency (“SOCA”), a forerunner of the National Crime Agency, is a former non-departmental national law enforcement agency that operated from 2006 to 2013.

(41) Spanish bullfighter issue - A shorthand reference for the application of money laundering provisions to the proceeds of an activity legal in a foreign jurisdiction, but illegal under the criminal law of the relevant part of the UK.

(42) Suspicious Activity Report - Suspicious Activity Reports (“SARs”), are an electronic or paper document in which the reporter discloses their suspicions of money laundering to the UKFIU, in accordance with their obligations under sections 330 to 332 or voluntarily pursuant to 338 of the Proceeds of Crime Act 2002.

(43) Statutory guidance - A statute may empower a Minister to issue guidance about the operation of its provisions. Although such statutory guidance is not to be treated as legislation, it is capable of having a legal effect. The courts will give guidance produced under a statutory power greater weight than guidance produced voluntarily.

(44) Supervisory authority - In this report a supervisory authority is a body with responsibility for supervising compliance with anti-money laundering legislation. Schedule 9, paragraph 4 to the Proceeds of Crime Act 2002 lists 25 supervisory authorities.

(45) The regulated sector - The regulated sector refers to those institutions specified in Schedule 9, paragraph 1 to the Proceeds of Crime Act 2002 (and corresponding provisions in the Terrorism Act 2000) which are subject to particular obligations under anti-money laundering legislation. This includes a broad range of sectors, such as credit institutions, those providing legal and accounting services and high value dealers.

(46) Thematic reporting - Thematic reporting is an administrative approach to reporting suspicious activity which requires reports to be made based on set criteria irrespective of suspicion.

(47) Terrorist financing - Terrorist financing concerns money or other property likely be used for the purposes of terrorism and any proceeds of the commission of acts of terrorism or acts carried out for the purposes of terrorism.

(48) United Kingdom Financial Intelligence Unit - The United Kingdom Financial Intelligence Unit (“UKFIU”) sits within the National Crime Agency and is responsible for receiving, analysing and disseminating suspicious activity reports.

(49) Value transfer system - A value transfer system refers to a mechanism, or network of people, which operates outside of formal banking channels to facilitate the transfer of goods and money directly, even to users in remote locations.

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