Среда, 31 июля 2019 апдейт:

1. Structure of report and recommendations

1.85 In this section we summarise the contents of our report and our recommendations.

1.86 In chapter 2 we outline the data analysis we conducted in conjunction with the UKFIU. We set out our methodology and some of our overall findings. We use this analysis to inform our recommendations in subsequent chapters. In this chapter we recommend that samples of SARs are analysed at regular intervals in consultation with an Advisory Board constituted by those with relevant expertise.

1.87 In chapter 3 we make the case in principle for statutory guidance overseen by an Advisory Board. We set out our arguments for statutory guidance on three statutory concepts: suspicion, reasonable excuse and appropriate consent. We recommend that POCA is amended to impose an obligation on the Secretary of State to issue guidance covering the operation of Part 7 of POCA so far as it relates to businesses in the regulated sector. In particular, we recommend that explanatory guidance should cover the suspicion threshold, appropriate consent and the reasonable excuse defence to assist the regulated sector in complying with their legal obligations. We also recommend that an Advisory Board is created to assist in the production of guidance, to measure the effectiveness of the reporting regime and to advise the Secretary of State on ways to improve it.

1.88 In chapter 4 we discuss the «all-crimes» approach to money laundering offences. The breadth of the definition of «criminal property» in section 340 of POCA means that the principal money laundering offences apply to dealings with property derived from all criminal offences. We recommend maintaining the «all-crimes» approach.

1.89 In chapter 5 we set out our recommendation for statutory guidance on suspicion. We couple this recommendation with a further one for the Secretary of State to make provision for an online SAR form. We recommend that the new form should have the capability to be tailored to the needs of the individual reporter while directing them to provide essential information for law enforcement agencies. In chapters 6 and 7 we make the case for statutory guidance to cover both appropriate consent and the defence of reasonable excuse.

1.90 In chapter 8 we consider the problems that can arise when the proceeds of crime become mixed with «clean» funds. The practice of freezing entire bank accounts, regardless of the value of the property that is suspected to be criminal, can have severe economic consequences for an individual or a business. To address this problem we recommend that POCA is amended to create an exemption to allow criminal property to be ringfenced by credit and financial institutions. We recommend that statutory guidance is issued on the operation of the ringfencing provision. We also recommend the addition of a provision allowing for funds to be released by a Crown Court Judge when an application for an extension to the moratorium period is made.

1.91 In chapter 9 we deal with the way in which information about suspected money laundering is shared between private institutions and law enforcement agencies, and how this sharing could be improved. We address whether it might be appropriate to permit information sharing before a suspicion crystallises, and if so how that might be achieved. We also consider the value of expanding the membership of the Joint Money Laundering Intelligence Taskforce. We make no specific recommendations in this chapter.

1.92 In chapter 10 we consider additional reporting requirements which might be introduced to complement and improve the existing regime. After discussing geographic targeting orders and thematic reporting, we conclude that there is currently insufficient evidence to make recommendations for reform.

1.93 In chapter 11 we consider three possible further reforms: (1) corporate criminal liability; (2) extraterritorial jurisdiction; and (3) the legal conduct overseas exception. We make no recommendations on reform of corporate criminal liability. We note that we did not consult on reform of extraterritorial jurisdiction of the money laundering offences, but we recommend that the Government conduct further work with a view to clarifying the law in this area. The policy questions raised by the application of legal conduct overseas exceptions extend beyond this review. However, we recommend the Government consider the scope of the exception, and the need for guidance in relation to transactions involving the legal cannabis industry.


1.94 Commissioners want to record our thanks to the following people who worked on this Report: Lucy Corrin (team lawyer), Dom Bowes (research assistant), Holly Brennan (research assistant) and David Connolly (team manager). Rebecca Martin (research assistant) provided invaluable support at earlier stages of this project.

1.95 Data analysis was conducted by Lucy Corrin, Holly Brennan, Dom Bowes, and Alex Davidson (research assistant). We are grateful for the assistance of staff at the UKFIU for facilitating our access to SARs in order to conduct our research.

1.96 We are indebted in particular to Rudi Fortson QC (Visiting Professor at Queen Mary, University of London and practising barrister, 25 Bedford Row) who has acted as a consultant throughout the life of this project and Kennedy Talbot QC (practising barrister at 33 Chancery Lane) for his assistance on extraterritoriality, discussed in chapter 11.

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