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The UK’s SARs Regime on ML

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Anti-Money Laundering

Part of the book series: Palgrave Studies in Risk, Crime and Society ((PSRCS))

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Abstract

This Chapter is pivotal in terms of the UK’s AML system since it examines the SAR requirements, which are imposed on reporting entities. One of the principal objectives of the SAR requirements is to protect the reputation and integrity of the financial system. The SARs system aims at preventing and detecting ML activities or at least mitigating its consequences by prohibiting the use of illicit proceeds. The main objective of the current Chapter is to critically analyse the legal basis for SARs and the types of disclosure, which are required under the SARs regime and the complicated requirements, which can, in practice, overlap with each other. The required, authorised and protected disclosures are evaluated to appreciate the legal consequences. In case of non-compliance, one of the three offences of failing to report SARs can be committed, namely the second group of ML offences contained in Part 7 of the POCA 2002.

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Notes

  1. 1.

    SOCA, ‘FAQ and Definitions’, available online on SOCA’s website at: www.soca.gov.uk (last accessed on 13th September 2014).

  2. 2.

    As critically analysed in Chap. 5 and confirmed in Chap. 6.

  3. 3.

    It is worth noting that in addition to the SARs regime, there are Cash Declaration rules, which were adopted by the European Parliament and Council according to Regulation No 1889/2005. The Regulation came into effect in all EU Members States on 15 June 2007. Hence, a passenger who enters the UK from a non-EU country or departs the UK to a non-EU country must declare to HMRC if he carries 10,000 Euros or more (or the equivalent in another currency). Cash is not confined to currency notes and coins, but also banker’s drafts and cheques, including travellers’ cheques. A passenger who fails to make the declaration or provides false declaration could face a penalty of up £5000 pursuant to the Control of Cash (Penalties) Regulations 2007. Form C9011 is dedicated for the declaration and all information on how to declare the cash and the form can be found on the website of HMRC at: www.hmrc.gov.uk (accessed on 25th November 2014). The declaration is not required if the passenger is travelling between EU countries.

  4. 4.

    Doug Hopton, Money Laundering, A Concise Guide for All Business (Second Edition, Gower Publishing Limited 2009), 65.

  5. 5.

    MLR 2007, reg.2 (1).

  6. 6.

    MLR 2007, reg.20 (2)(d).

  7. 7.

    If a firm does not obey the MLR 2007 in appointing a nominated officer and fulfilling the regulations in this regard, this will result in committing a criminal offence which is punishable of imprisonment for a term not exceeding two years, a fine or to both in addition to the possibility of civil penalties. MLR 2007, reg.42 & 45.

  8. 8.

    Robin Booth and others, Money Laundering Law and Regulation: A Practical Guide (First Published, Oxford University Press 2011), 104.

  9. 9.

    Alastair Hudson, The Law of Finance (Second Edition, Sweet & Maxwell 2013), 427.

  10. 10.

    Ahmad (Mohammad) v HM Advocate, [2009] HCJAC 60, paras 30 & 37.

  11. 11.

    Angela Leong, The Disruption of International Organised Crime: An Analysis of Legal and Non-Legal Strategies (Ashgate Publishing Limited 2007), 155.

  12. 12.

    George Brown and Tania Evans, ‘The impact: the breadth and depth of the anti-money laundering provisions requiring reporting of suspicious activities’ (2008) 23 (5) Journal of International Banking Law and Regulation 274, 275.

  13. 13.

    S. 330(1)— (4) of the POCA 2002 provides that:

    ‘(1) A person commits an offence if the conditions in s (2) to (4) are satisfied

    (2) The first condition is that he

    (a) knows or suspects, or

    (b) has reasonable grounds for knowing or suspecting, that another person is engaged in money laundering.

    (3) The second condition is that the information or other matter

    (a) on which his knowledge or suspicion is based, or

    (b) which gives reasonable grounds for such knowledge or suspicion, came to him in the course of a business in the regulated sector.

    (3 A) The third condition is

    (a) that he can identify the other person mentioned in (2) or the whereabouts of any of the laundered property, or

    (b) that he believes, or it is reasonable to expect him to believe, that the information or other matter mentioned in (3) will or may assist in identifying that other person or the whereabouts of any of the laundered property.

    (4) The fourth condition is that he does not make the required disclosure to

    (a) a nominated officer, or

    (b) a person authorised for the purposes of this Part by the Director General of the National Crime Agency, as soon as is practicable after the information or other matter mentioned in (3) comes to him.’

  14. 14.

    Sch.9 (1) of the POCA 2002 defines businesses in the regulated sector and excluded activities.

  15. 15.

    Jonathan Fisher, ‘The anti-money laundering disclosure regime and the collection of revenue in the United Kingdom’ (2010) 3 British Tax Review 235, 237.

  16. 16.

    Doug Hopton (n 1002) 57.

    See also Chap. 7 (n 787 & 812).

  17. 17.

    Alastair Hudson (n 1007) 428.

  18. 18.

    Stephen Gentle, ‘Proceeds of Crime Act 2002: update’ (2008) 56 (May) Compliance Officer Bulletin 1, 16.

  19. 19.

    POCA 2002, s. 330(2).

  20. 20.

    Robert Stokes and Anu Arora, ‘The duty to report under the money laundering legislation within the United Kingdom’ [2004 May] Journal of Business Law 332, 345.

  21. 21.

    Charles Proctor, The Law and Practice of International Banking (Oxford University Press 2010), 159.

  22. 22.

    Jonathan Fisher (n 1013) 239.

  23. 23.

    Doug Hopton (n 1002) 62.

  24. 24.

    ‘Proceeds of Crime Act 2002 Part 7— Money Laundering Offences’ (Updated 15/09/10), available online at: http://www.cps.gov.uk/legal/p_to_r/proceeds_of_crime_money_laundering/ (accessed on 31st January 2015).

  25. 25.

    Arun Srivastava, ‘UK Part II: UK law and practice’ in Mark Simpson, Nicole Smith and Arun Srivastava (eds), International Guide to Money Laundering Law and Practice (Third Edition, Bloomsbury Professional 2010), 27 at 41.

  26. 26.

    Robin Booth and others (n 1006) 49.

  27. 27.

    [2006] EWCA Crim 2155.

  28. 28.

    Ibid para 12.

  29. 29.

    This case is not a reported case and it is mentioned in George Brown and Tania Evans (n 1010) 275. In addition, this case has been published on the BBC website at:

    http://news.bbc.co.uk/1/hi/england/lancashire/6647473.stm (accessed on 13st May 2015).

  30. 30.

    Ibid.

  31. 31.

    (N 1008).

  32. 32.

    Contrary to the POCA 2002, s.330.

  33. 33.

    (N 1008) para 1.

  34. 34.

    See (n 364) of Chap. 4.

  35. 35.

    Stephen Gentle (n 1016) 16.

  36. 36.

    Ibid.

  37. 37.

    Commonwealth Secretariat, Combating Money Laundering and Terrorist Financing: A Model of Best Practice for the Financial Sector, the Professions and other Designated Businesses (Second Edition, Commonwealth Secretariat 2006), 139.

  38. 38.

    An OFC can be defined as any jurisdiction, which exclusively adopts a system in order to promote business, legal and financial infrastructures, including those infrastructures, which display a higher degree of flexibility for the demands of foreign investors than traditional infrastructures in onshore. This means that an OFC is a jurisdiction, which accommodates an enormous number of financial services to customers, such as banking and insurance, who are non-resident, compared to the quantity of sourced business at the domestic level.

    For further detail, see, Rose-Marie Antoine, Confidentiality in Offshore Financial Law (First published, Oxford University Press 2002), 7.

    See also, Richard Hay, ‘Offshore financial centres: the supranational initiatives’ (2001) 2 Private Client Business 75, 76.

  39. 39.

    Commonwealth Secretariat, (n 1035) 139.

  40. 40.

    Doug Hopton (n 1002) 62.

  41. 41.

    POCA 2002, s.330 (3).

  42. 42.

    Ibid.

  43. 43.

    The “laundered property” is ‘the property forming the subject-matter of the money laundering that he knows or suspects, or has reasonable grounds for knowing or suspecting, that other person to be engaged in.’ POCA 2002, s.330 (5 A).

  44. 44.

    POCA 2002, s.330 (3 A).

  45. 45.

    POCA 2002, s.330 (4).

    In addition, s.340 (12)(13) of the POCA 2002 provides that:

    ‘(12) For the purposes of a disclosure to a nominated officer

    (a) references to a person’s employer include any body, association or organisation (including a voluntary organisation) in connection with whose activities the person exercises a function (whether or not for gain or reward), and

    (b) references to employment must be construed accordingly.

    (13) References to a constable include references to a person authorised for the purposes of this Part by the Director General of the National Crime Agency’.

  46. 46.

    Arun Srivastava (n 1023) 43.

  47. 47.

    POCA 2002, s.330 (5).

  48. 48.

    Paul Hynes, Nathaniel Rudolf and Richard Furlong, International Money Laundering and Terrorist Financing: A UK Perspective (First Edition, Sweet & Maxwell/Thomson Reuters 2009), 225.

  49. 49.

    Stephen Gentle (n 1016) 19.

  50. 50.

    POCA 2002, s.330 (6)(a).

  51. 51.

    Doug Hopton (n 1002) 66.

  52. 52.

    Charles Proctor (n 1019) 162.

  53. 53.

    “A relevant professional adviser” is ‘an accountant, auditor or tax adviser who is a member of a professional body which is established for accountants, auditors or tax advisers (as the case may be) and which makes provision for

    (a) testing the competence of those seeking admission to membership of such a body as a condition for such admission; and

    (b) imposing and maintaining professional and ethical standards for its members, as well as imposing sanctions for non-compliance with those standards.’ POCA 2002, s.330 (14).

  54. 54.

    POCA 2002, s.330 (6)(b).

    S.330 (10) defines the term “privileged circumstances” as:

    ‘Information or other matter comes to a professional legal adviser or relevant professional adviser in privileged circumstances if it is communicated or given to him

    (a) by (or by a representative of) a client of his in connection with the giving by the adviser of legal advice to the client,

    (b) by (or by a representative of) a person seeking legal advice from the adviser, or

    (c) by a person in connection with legal proceedings or contemplated legal proceedings.’

  55. 55.

    POCA 2002, s.330 (7).

  56. 56.

    POCA 2002, s.330 (7 A). Furthermore, s.330 (8) of the Act provides “In deciding whether a person committed an offence under this section the court must consider whether he followed any relevant guidance which was at the time concerned

    (a) issued by a supervisory authority or any other appropriate body,

    (b) approved by the Treasury, and

    (c) published in a manner it approved as appropriate in its opinion to bring the guidance to the attention of persons likely to be affected by it.”

  57. 57.

    Jonathan Fisher (n 1013) 237.

  58. 58.

    The laundered property has been given the same definition as in the first offence of failing to report.

    S.331 (5 A) of the POCA2002, see also (n 1041).

  59. 59.

    S.331 (1–4) of the POCA provides that:

    ‘(1) A person nominated to receive disclosures under section 330 commits an offence if the conditions in s (2) to (4) are satisfied (2) The first condition is that he

    (a) knows or suspects, or

    (b) has reasonable grounds for knowing or suspecting,

    that another person is engaged in money laundering.

    (3) The second condition is that the information or other matter

    (a) on which his knowledge or suspicion is based, or

    (b) which gives reasonable grounds for such knowledge or suspicion,

    came to him in consequence of a disclosure made under section 330.

    (3 A) The third condition is

    (a) that he knows the identity of the other person mentioned in (2), or the whereabouts of any of the laundered property, as a result of a disclosure made under section 330,

    (b) that that other person, or the whereabouts of any of the laundered property, can be identified from the information or other matter mentioned in (3), or

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

    (4) The fourth condition is that he does not make the required disclosure to a person authorised for the purposes of this Part by the Director General of the National Crime Agency as soon as is practicable after the information or other matter mentioned in (3) comes to him.’

  60. 60.

    POCA 2002, s.330.

  61. 61.

    Nicholas Ryder ‘The Financial Services Authority and money laundering: a game of cat and mouse’ (2008) 67 (3) Cambridge Law Journal 635, 648.

  62. 62.

    POCA 2002, s.331 (5).

  63. 63.

    Doug Hopton (n 1002) 66.

  64. 64.

    Stephen Gentle (n 1016) 17.

  65. 65.

    (N 1008).

  66. 66.

    POCA 2002, s.330 (9 A).

  67. 67.

    POCA 2002, s.331 (3).

  68. 68.

    Doug Hopton (n 1002) 65.

  69. 69.

    A nominated officer is required to also produce a report to the firm’s senior management at least once a year. SYSC 3.2.6G stipulates that:

    ‘A firm should ensure that the systems and controls include:

    (2) appropriate provision of information to its governing body and senior management, including a report at least annually by that firm’s money laundering reporting officer (MLRO) on the operation and effectiveness of those systems and controls.’

    The report should evaluate the current firm’s system and controls in relation to counteracting ML and propose any amendments/additional controls. See Mark Simpson and Nicole Smith, ‘UK Part III: Practical implementation of Regulations and Rules’ in Mark Simpson, Nicole Smith and Arun Srivastava (eds), International Guide to Money Laundering Law and Practice (Third Edition, Bloomsbury Professional 2010), 95 at 107. See also in this regard in detail, Doug Hopton (n 1002) 123–129.

  70. 70.

    POCA 2002, s.331 (6).

  71. 71.

    Doug Hopton (n 1002) 66 & 67.

  72. 72.

    POCA 2002, s.331 (6 A).

  73. 73.

    Robin Booth and others (n 1006) 133.

  74. 74.

    Paul Hynes, Nathaniel Rudolf and Richard Furlong (n 1046) 229.

  75. 75.

    Jonathan Fisher (n 1013) 237.

  76. 76.

    Robin Booth and others (n 1006) 136.

  77. 77.

    Ibid.

  78. 78.

    Robin Booth and others (n 1006) 137.

  79. 79.

    S.337 of the POCA 2002.

  80. 80.

    S.338 of the POCA 2002.

  81. 81.

    For the purpose of this offence, the laundered property is “the property forming the subject-matter of the money laundering that he knows or suspects that other person to be engaged in,” s.332 (5 A). The definition is same as the definition given to laundered property for the first two offences of failure to report, except in relation to “grounds for knowing or suspecting.” This is due to the objective basis not applying for the purpose of the offence.

  82. 82.

    S.332 (1–4) of the POCA 2002 provides that:

    ‘(1) A person nominated to receive disclosures under section 337 or 338 commits an offence if the conditions in s (2) to (4) are satisfied.

    (2) The first condition is that he knows or suspects that another person is engaged in money laundering.

    (3) The second condition is that the information or other matter on which his knowledge or suspicion is based came to him in consequence of a protected disclosure or authorised disclosure.

    (3 A) The third condition is

    (a) that he knows the identity of the other person mentioned in (2), or the whereabouts of any of the laundered property, in consequence of a [protected disclosure or authorised disclosure],

    (b) that that other person, or the whereabouts of any of the laundered property, can be identified from the information or other matter mentioned in (3), or

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

    (4) The fourth condition is that he does not make the required disclosure to a person authorised for the purposes of this Part by the Director General of the National Crime Agency as soon as is practicable after the information or other matter mentioned in (3) comes to him.’

  83. 83.

    S.332 (2) of the POCA 2002.

  84. 84.

    Robin Booth and others (n 1006) 139.

  85. 85.

    Ibid.

    In addition, Three elements are important for the required disclosure, namely (1) the identity of the other person mentioned in the first condition of the offence, if disclosed to him under the protected disclosure or authorised disclosure, (2) the whereabouts of the laundered property, so far as disclosed to him under the protected disclosure or authorised disclosure and (3) the information or other matter mentioned in the second condition of the offence. POCA 2002, s.332 (5).

  86. 86.

    Robin Booth and others (n 1006) 140.

  87. 87.

    Mark Simpson and Nicole Smith (n 1067) 130 & 131.

  88. 88.

    POCA 2002, s.332 (6–7).

    A person, who is found guilty of any the three offences relating to failing to report ML cases, can be sentenced for up to Fiveyears’ imprisonment and/or a fine. POCA 2002, s.334 (2).

  89. 89.

    Robin Booth and others (n 1006) 96.

  90. 90.

    Robin Booth and others (n 1006) 104.

  91. 91.

    POCA 2002, s.330 (5), s.331 (5) or s.332 (5).

  92. 92.

    Robin Booth and others (n 1006) 98.

  93. 93.

    S.330 of the POCA 2002.

  94. 94.

    S.330 (4) of the POCA 2002.

  95. 95.

    S.331 of the POCA 2002.

  96. 96.

    S.331 (4) of the POCA 2002.

  97. 97.

    S.332 of the POCA 2002.

  98. 98.

    S.332 (4) of the POCA 2002.

  99. 99.

    The term “prohibited act” means any act listed in section 327 (1), 328 (1) or 329 (1) of the POCA 2002.

  100. 100.

    S.338 (1)(a) of the POCA 2002.

    The term “alleged offender” means any person at risk of committing principal ML offence(s).

  101. 101.

    Arun Srivastava (n 1023) 43.

  102. 102.

    An officer of HMRC, s.6 of Commissioners of Revenue and Customs Act 2002.

  103. 103.

    S.338 (1)(a) of the POCA 2002.

  104. 104.

    S.338 (5) of the POCA 2002.

  105. 105.

    Arun Srivastava (n 1023) 33.

  106. 106.

    S.338 (2–3) of the POCA 2002 provides that:

    ‘(2) The first condition is that the disclosure is made before the alleged offender does the prohibited act.

    (2 A) The second condition is that

    (a) the disclosure is made while the alleged offender is doing the prohibited act,

    (b) he began to do the act at a time when, because he did not then know or suspect that the property constituted or represented a person’s benefit from criminal conduct, the act was not a prohibited act, and

    (c) the disclosure is made on his own initiative and as soon as is practicable after he first knows or suspects that the property constitutes or represents a person’s benefit from criminal conduct.

    (3) The third condition is that

    (a) the disclosure is made after the alleged offender does the prohibited act,

    (b) he has a reasonable excuse for his failure to make the disclosure before he did the act, and

    (c) the disclosure is made on his own initiative and as soon as it is practicable for him to make it.’

  107. 107.

    POCA 2002, s.338 (2 A).

  108. 108.

    POCA 2002, s.338 (3).

  109. 109.

    Doug Hopton (n 1002) 55.

  110. 110.

    Robin Booth and others (n 1006) 145.

  111. 111.

    Paul Hynes, Nathaniel Rudolf and Richard Furlong (n 1046) 65.

  112. 112.

    S.335 (1) of the POCA 2002.

  113. 113.

    S.335 (2–4) of the POCA 2002 provides that:

    ‘(2) A person must be treated as having the appropriate consent if

    (a) he makes an authorised disclosure to a constable or a customs officer, and

    (b) the condition in (3) or the condition in (4) is satisfied.

    (3) The condition is that before the end of the notice period he does not receive notice from a constable or customs officer that consent to the doing of the act is refused.

    (4) The condition is that

    (a) before the end of the notice period he receives notice from a constable or customs officer that consent to the doing of the act is refused, and

    (b) the moratorium period has expired.’

  114. 114.

    S.335 (5–7) of the POCA 2002 provides that:

    ‘(5) The notice period is the period of seven working days starting with the first working day after the person makes the disclosure.

    (6) The moratorium period is the period of 31 days starting with the day on which the person receives notice that consent to the doing of the act is refused.

    (7) A working day is a day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 (c. 80) in the part of the United Kingdom in which the person is when he makes the disclosure.’

  115. 115.

    Robin Booth and others (n 1006) 147.

  116. 116.

    S.41 of the POCA 2002.

  117. 117.

    Robin Booth and others (n 1006) 148.

  118. 118.

    The term “discloser” means the person who makes the disclosure.

  119. 119.

    S.335 (1) of the POCA 2002.

  120. 120.

    S.336 (1–4) of the POCA 2002 provides that:

    ‘(1) A nominated officer must not give the appropriate consent to the doing of a prohibited act unless the condition in (2), the condition in (3) or the condition in (4) is satisfied.

    (2) The condition is that

    (a) he makes a disclosure that property is criminal property to a person authorised for the purposes of this Part by the Director General of the National Crime Agency, and

    (b) such a person gives consent to the doing of the act.

    (3) The condition is that

    (a) he makes a disclosure that property is criminal property to a person authorised for the purposes of this Part by the Director General of the National Crime Agency, and

    (b) before the end of the notice period he does not receive notice from such a person that consent to the doing of the act is refused.

    (4) The condition is that

    (a) he makes a disclosure that property is criminal property to a person authorised for the purposes of this Part by the Director General of the National Crime Agency,

    (b) before the end of the notice period he receives notice from such a person that consent to the doing of the act is refused, and

    (c) the moratorium period has expired.’

  121. 121.

    S.336 (5–6) of the POCA 2002 provides that:

    ‘(5) A person who is a nominated officer commits an offence if

    (a) he gives consent to a prohibited act in circumstances where none of the conditions in s (2), (3) and (4) is satisfied, and

    (b) he knows or suspects that the act is a prohibited act.

    (6) A person guilty of such an offence is liable

    (a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both, or

    (b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine or to both.’

  122. 122.

    To avoid committing the third failure to report offence if the conditions contained in s.332 of the POCA 2002 are met.

  123. 123.

    S.336 (5–6) of the POCA 2002 (n 1119).

  124. 124.

    S.336 (7–9) of the POCA 2002 provides that:

    ‘(7) The notice period is the period of seven working days starting with the first working day after the nominated officer makes the disclosure.

    (8) The moratorium period is the period of 31 days starting with the day on which the nominated officer is given notice that consent to the doing of the act is refused.

    (9) A working day is a day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 (c. 80) in the part of the United Kingdom in which the nominated officer is when he gives the appropriate consent.’

  125. 125.

    Robin Booth and others (n 1006) 96.

  126. 126.

    S.337 (1) of the POCA 2002. Article 20 of the UAE FLMLC 2002 also provides this immunity, see (n 623) of Chap. 5.

  127. 127.

    Namely s.330 (2), s.331 (2) and s.332 (2) of the POCA 2002.

  128. 128.

    S.337 (2–4) of the POCA 2002 provides that:

    ‘(2) The first condition is that the information or other matter disclosed came to the person making the disclosure (the discloser) in the course of his trade, profession, business or employment.

    (3) The second condition is that the information or other matter

    (a) causes the discloser to know or suspect, or

    (b) gives him reasonable grounds for knowing or suspecting,

    that another person is engaged in money laundering.

    (4) The third condition is that the disclosure is made to a constable, a customs officer or a nominated officer as soon as is practicable after the information or other matter comes to the discloser.’

  129. 129.

    Disclosures contained in s.330 (5), s.331 (5) and s.332 (5) of the POCA 2002.

    S.337 (4 A) of the POCA 2002 provides that:

    ‘Where a disclosure consists of a disclosure protected under (1) and a disclosure of either or both of

    (a) the identity of the other person mentioned in (3), and

    (b) the whereabouts of property forming the subject-matter of the money laundering that the discloser knows or suspects, or has reasonable grounds for knowing or suspecting, that other person to be engaged in, the disclosure of the thing mentioned in paragraph (a) or (b) (as well as the disclosure protected under (1)) is not to be taken to breach any restriction on the disclosure of information (however imposed).’

  130. 130.

    Robin Booth and others (n 1006) 151.

  131. 131.

    E. P. Ellinger, Eva Lomnicka and C.V.M Hare, Ellinger’s Modern Banking Law (Fifth Edition, Oxford University Press 2011), 104.

  132. 132.

    S.338 (4) of the POCA 2002 provides that:

    “An authorised disclosure is not to be taken to breach any restriction on the disclosure of information (however imposed).”

    In addition, s.7 (1) of the CCA 2013 provides protection, provided that the disclosure is made for the purpose of discharging the functions of the NCA in counteracting serious and organised crime.

  133. 133.

    Under s.339 (2–4) of the POCA 2002.

  134. 134.

    Arun Srivastava (n 1023) 50.

  135. 135.

    Robin Booth and others (n 1006) 152.

  136. 136.

    To avoid committing any of the three principal ML offences.

  137. 137.

    To avoid committing any of the three offences of failing to report.

  138. 138.

    ‘The United Kingdom Third Mutual Evaluation Report, Anti-Money Laundering and Combating the Financing of Terrorism’ as produced by the FATF 29 June 2007, 148.

  139. 139.

    Stephen Gentle (n 1016) 17.

  140. 140.

    POCA 2002, s.333 A (1)(a).

  141. 141.

    POCA 2002, s.333 A (1)(b).

  142. 142.

    POCA 2002, s.333 A (1)(c).

  143. 143.

    POCA 2002, s.333 A (2) has provided that:

    ‘The matters are that the person or another person has made a disclosure under this Part

    (a) to a constable,

    (b) to an officer of Revenue and Customs,

    (c) to a nominated officer, or

    (d) to a National Crime Agency officer authorised for the purposes of this Part by the Director General of that Agency, of information that came to that person in the course of a business in the regulated sector.’

  144. 144.

    Doug Hopton (n 1002) 70.

  145. 145.

    Robin Booth and others (n 1006) 177.

  146. 146.

    Stephen Gentle (n 1016) 17.

  147. 147.

    POCA 2002, s.333 A (3)(a).

  148. 148.

    POCA 2002, s.333 A (3)(b).

  149. 149.

    POCA 2002, s.333 A (3)(c).

  150. 150.

    With a view to removing the suspicion of ML from his transaction.

  151. 151.

    There are a wide range of defences available to the tipping off offences. Firstly, s.333D (3–4) of the POCA 2002 provides that these offences will not be committed if the defendant does not know or suspect that the disclosure probably harms the investigation. Secondly, under s.333B (1) of the Act, no crime takes place when an employee, officer or partner of an undertaking discloses any information to an employee, officer or partner of the same undertaking. Thirdly, under s.333B (2) of the Act, if a disclosure relates to a customer and has been made in the context of a transaction associated with both institutions, it is lawful to disclose it amongst credit or financial institutions or within entities of the same group. In addition, s.333B (4) of the Act stipulates that this defence extends to professional legal advisers and relevant professional advisers. Fourthly, under s.333D (1) of the Act, the disclosure is allowed when it has been made vis-a-vis a supervisory authority or done in compliance with the provisions of the Act. Lastly, there is a defence, under s.333D (2) of the Act, for professional legal advisers and relevant professional advisers. This relates to the disclosure, which he makes, so long as it is made to the ‘adviser’s client and for the purpose of dissuading the client from engaging in conduct amounting to an offence.’

    A person guilty of any tipping off offences, mentioned above, can be liable for up to two years’ imprisonment and/or a fine. POCA 2002, s.333 A (4).

  152. 152.

    Stephen Gentle (n 1016) 18.

    There is another offence of prejudicing investigation contained in Part 8 of the POCA 2002, namely s.342 (2)(a) provides that:

    ‘(1) This section applies if a person knows or suspects that an appropriate officer or (in Scotland) a proper person is acting (or proposing to act) in connection with a confiscation investigation, a civil recovery investigation, a detained cash investigation, an exploitation proceeds investigation or a money laundering investigation which is being or is about to be conducted.

    (2) The person commits an offence if

    (a) he makes a disclosure which is likely to prejudice the investigation.’ S.342 (3) of the POCA 2002 provides defences to such offence.

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  1. Dubai Public Prosecution, SHARJAH, UAE

    Dr. Waleed Alhosani (Assistant Chief Prosecutor)

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Alhosani, W. (2016). The UK’s SARs Regime on ML. In: Anti-Money Laundering. Palgrave Studies in Risk, Crime and Society. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-59455-6_8

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