5.1 General comments
The Proceeds of Crime Act 2002 (POCA) created a single set of money laundering offences applicable throughout the UK to the proceeds of all crimes. It also creates a disclosure regime, which makes it an offence not to disclose knowledge or suspicion of money laundering, but also permits persons to be given consent in certain circumstances to carry out activities which would otherwise constitute money laundering.
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5.2 Application
POCA applies to all solicitors, although some offences apply only to persons within the regulated sector, or nominated officers.
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5.3 Mental elements
The mental elements which are relevant to offences under Part 7 of POCA are:
- knowledge
- suspicion
- reasonable grounds for suspicion
These are the three mental elements in the actual offences, although the third one only applies to offences relating to the regulated sector. There is also the element of belief on reasonable grounds in the foreign conduct defence to the money laundering offences. A person will have a defence to a principal offence if they know or believe on reasonable grounds that the criminal conduct involved was exempt overseas criminal conduct.
For the principal offences of money laundering the prosecution must prove that the property involved is criminal property. This means that the prosecution must prove that the property was obtained through criminal conduct and that, at the time of the alleged offence, you knew or suspected that it was.
For the failure to disclose offences, where you are acting in the regulated sector, you must disclose if you have knowledge, suspicion or reasonable grounds for suspicion; while if you are not in the regulated sector you will only need to consider making a disclosure if you have actual, subjective knowledge or suspicion.
These terms for the mental elements in the offences are not terms of art; they are not defined within POCA and should be given their everyday meaning. However, case law has provided some guidance on how they should be interpreted.
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5.3.1 Knowledge
Knowledge means actual knowledge. There is some suggestion that wilfully shutting one's eyes to the truth may amount to knowledge. However, the current general approach from the criminal courts is that nothing less than actual knowledge will suffice.
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5.3.2 Suspicion
The term 'suspects' is one which the court has historically avoided defining; however because of its importance in English criminal law, some general guidance has been given. In the case of Da Silva [1996] EWCA Crim 1654, which was prosecuted under the previous money laundering legislation, Longmore LJ stated:
'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.'
There is no requirement for the suspicion to be clear or firmly grounded on specific facts, but there must be a degree of satisfaction, not necessarily amounting to belief, but at least extending beyond speculation.
The test for whether you hold a suspicion is a subjective one.
If you think a transaction is suspicious, you are not expected to know the exact nature of the criminal offence or that particular funds were definitely those arising from the crime. You may have noticed something unusual or unexpected and after making enquiries, the facts do not seem normal or make commercial sense. You do not have to have evidence that money laundering is taking place to have suspicion.
Chapter 11 of this practice note contains a number of standard warning signs which may give you a cause for concern; however, whether you have a suspicion is a matter for your own judgement. To help form that judgement, consider talking through the issues with colleagues or with the Law Society. You could take legal advice, possibly from another solicitor on the Law Society's AML directory. Listing causes for concern can also help focus your mind.
If you have not yet formed a suspicion but simply have cause for concern, you may choose to ask the client or others more questions. This choice depends on what you already know, and how easy it is to make enquiries.
If you think your own client is innocent but suspect that another party to a transaction is engaged in money laundering, you may still have to consider referring your client for specialist advice regarding the risk that they may be a party to one of the principal offences.
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5.3.3 Reasonable grounds to suspect
The issues here for the solicitor conducting regulated activities are the same as for the mental element of suspicion, except that it is an objective test. Were there factual circumstances from which an honest and reasonable person, engaged in a business in the regulated sector should have inferred knowledge or formed the suspicion that another was engaged in money laundering?
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5.4 Principal money laundering offences
5.4.1 General comments
Money laundering offences assume that a criminal offence has occurred in order to generate the criminal property which is now being laundered. This is often known as a predicate offence. No conviction for the predicate offence is necessary for a person to be prosecuted for a money laundering offence.
The principal money laundering offences apply to money laundering activity which occurred on or after 24 February 2003 as a result of the Proceeds of Crime Act 2002 (Commencement No. 4, Transitional Provisions & Savings) Order 2003.
If the money laundering occurred or started before 24 February 2003, the former legislation will apply - see the second edition of
Money Laundering Legislation: Guidance for Solicitors 2002 (PDF)
However if the money laundering took place after 24 February 2003, the conduct giving rise to the criminal property can occur before that date.
When considering the principal money laundering offences, be aware that it is also an offence to conspire or attempt to launder the proceeds of crime, or to counsel, aid, abet or procure money laundering.
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5.4.2 Section 327 - concealing
A person commits an offence if he conceals, disguises, converts, or transfers criminal property, or removes criminal property from England and Wales, Scotland or Northern Ireland.
Concealing or disguising criminal property includes concealing or disguising its nature, source, location, disposition, movement, ownership or any rights connected with it.
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5.4.3 Section 328 - arrangements
A person commits an offence if he enters into, or becomes concerned in an arrangement which he knows or suspects facilitates the acquisition, retention, use or control of criminal property by or on behalf of another person.
What is an arrangement?
Arrangement is not defined in Part 7 of POCA. The arrangement must exist and have practical effects relating to the acquisition, retention, use or control of property.
An agreement to make an arrangement will not always be an arrangement. The test is whether the arrangement does in fact, in the present and not the future, have the effect of facilitating the acquisition, retention, use or control of criminal property by or on behalf of another person.
What is not an arrangement?
Bowman v Fels [2005] EWCA Civ 226 held that s328 does not cover or affect the ordinary conduct of litigation by legal professionals, including any step taken in litigation from the issue of proceedings and the securing of injunctive relief or a freezing order up to its final disposal by judgment.
Our view, supported by Counsel's opinion, is that dividing assets in accordance with the judgment, including the handling of the assets which are criminal property, is not an arrangement. Further, settlements, negotiations, out of court settlements, alternative dispute resolution and tribunal representation are not arrangements. However, the property will generally still remain criminal property and you may need to consider referring your client for specialist advice regarding possible offences they may commit once they come into possession of the property after completion of the settlement.
The recovery of property by a victim of an acquisitive offence will not be committing an offence under either s328 or s329 of the Act.
Sham litigation
Sham litigation created for the purposes of money laundering remains within the ambit of s328. Our view is that shams arise where an acquisitive criminal offence is committed and settlement negotiations or litigation are intentionally fabricated to launder the proceeds of that separate crime.
A sham can also arise if a whole claim or category of loss is fabricated to launder the criminal property. In this case, money laundering for the purposes of POCA cannot occur until after execution of the judgment or completion of the settlement.
Entering into or becoming concerned in an arrangement
To enter into an arrangement is to become a party to it.
To become concerned in an arrangement suggests a wider practical involvement such as taking steps to put the arrangement into effect.
Both entering into and becoming concerned in, describe an act that is the starting point of an involvement in an existing arrangement.
Although the Court did not directly consider the conduct of transactional work, its approach to what constitutes an arrangement under section 328 provides some assistance in interpreting how that section applies in those circumstances.
Our view is that Bowman v Fels supports a restricted understanding of the concept of entering into or becoming concerned in an arrangement, with respect to transactional work. In particular:
- entering into or becoming concerned in an arrangement involves an act done at a particular time
- an offence is only committed once the arrangement is actually made, and
- preparatory or intermediate steps in transactional work which does not itself involve the acquisition, retention, use or control of property will not constitute the making of an arrangement under s328
If you are doing transactional work and become suspicious, you have to consider:
- whether an arrangement exists and, if so, whether you have entered into or become concerned in it or may do so in the future
- if no arrangement exists, whether one may come into existence in the future which you may become concerned in
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5.4.4 Section 329 - acquisition, use or possession
A person commits an offence if he acquires, uses or has possession of criminal property.
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5.5 Defences to principal money laundering offences
You will have a defence to a principal money laundering offence if:
- you make an authorised disclosure prior to the offence being committed and you gain appropriate consent (the consent defence)
- you intended to make an authorised disclosure but had a reasonable excuse for not doing so (the reasonable excuse defence)
In relation to s329 you will also have a defence if you received adequate consideration for the criminal property (the adequate consideration defence).
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5.5.1 Authorised disclosures
Section 338 authorises you to make a disclosure regarding suspicion of money laundering as a defence to the principal money laundering offences.
It specifically provides that you can make an authorised disclosure either
- before money laundering has occurred
- while it is occurring but as soon as you suspect
- after it has occurred, if you had good reason for not disclosing earlier and make the disclosure as soon as practicable.
If a disclosure is authorised, it does not breach any rule which would otherwise restrict it, such as chapter 4 of the SRA Handbook relating to client confidentiality.
Where your firm has a nominated officer, you should make your disclosure to the nominated officer. The nominated officer will consider your disclosure and decide whether to make an external disclosure to SOCA. If your firm does not have a nominated officer, you should make your disclosure directly to SOCA.
Appropriate consent
If you have a suspicion that a retainer you are acting in will involve dealing with criminal property, you can make an authorised disclosure to SOCA via your nominated officer and seek consent to undertake the further steps in the retainer which would constitute a money laundering offence.
For further information on how to make an authorised disclosure to SOCA and the process by which consent is gained, see chapter 8 of this practice note.
Reasonable excuse defence
This defence applies where a person intended to make an authorised disclosure before doing a prohibited act, but had a reasonable excuse for not disclosing. Reasonable excuse has not been defined by the courts, but the scope of the reasonable excuse defence is important for legal professional privilege.
You will have a defence against a principal money laundering offence if you make an authorised disclosure.
However, you are prevented from disclosing if your knowledge or suspicion is based on privileged information and legal professional privilege is not excluded by the crime/fraud exception. It is the Law Society's view that you will have a reasonable excuse for not making an authorised disclosure and will not commit a money laundering offence.
Read more about legal professional privilege.
There may be other circumstances which would provide a reasonable excuse, however these are likely to be narrow. You should clearly document the reason for not making a disclosure on this ground.
Where you suspect part way through
It is not unusual for a transactional matter to seem legitimate early in the retainer, but to develop in such a way as to arouse suspicion later on. It may be that certain steps have already taken place which you now suspect facilitated money laundering; while further steps are yet to be taken which you also suspect will facilitate further money laundering.
Section 338(2A) provides that you may make an authorised disclosure in these circumstances if:
- at the time the initial steps were taken they were not a money laundering offence because you did not have good reason to know or suspect that the property was criminal property; and
- you make a disclosure of your own initiative as soon as practicable after you first know or suspect that criminal property is involved in the retainer.
In such a case you would make a disclosure seeking consent for the rest of the transaction to proceed, while fully documenting the reasons why you came to know or suspect that criminal property was involved and why you did not suspect this to be the case previously.
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5.5.2 Adequate consideration defence
This defence applies if there was adequate consideration for acquiring, using and possessing the criminal property, unless you know or suspect that those goods or services may help another to carry out criminal conduct.
The Crown Prosecution Service guidance for prosecutors says the defence applies where professional advisors, such as solicitors or accountants, receive money for or on account of costs, whether from the client or from another person on the client's behalf. Disbursements are also covered. The fees charged must be reasonable, and the defence is not available if the value of the work is significantly less than the money received.
The transfer of funds from client to office account, or vice versa, is covered by the defence.
Returning the balance of an account to a client may be a money laundering offence if you know or suspect the money is criminal property. In that case, you must make an authorised disclosure and obtain consent to deal with the money before you transfer it.
Reaching a matrimonial settlement or an agreement on a retiring partner's interest in a business does not constitute adequate consideration for receipt of criminal property, as in both cases the parties would only be entitled to a share of the legitimately acquired assets of the marriage or the business. This is particularly important where your client would be receiving the property as part of a settlement which would be exempted from s328 due to the case of Bowman v Fels.
The defence is more likely to cover situations where:
- a third party seeks to enforce an arms length debt and, unknown to them, is given criminal property in payment for that debt
- a person provides goods or services as part of a legitimate arms length transaction but unknown to them is paid from a bank account which contains the proceeds of crime
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5.6 Failure to disclose offences - money laundering
5.6.1 General comments
The failure to disclose provisions in sections 330, 331 and 332 apply where the information on which the knowledge or suspicion is based came to a person on or after 24 February 2003, or where a person in the regulated sector has reasonable grounds for knowledge or suspicion on or after that date.
If the information came to a person before 24 February 2003, the old law applies.
In all three sections, the phrase 'knows or suspects' refers to actual knowledge or suspicion - a subjective test. However, solicitors and nominated officers in the regulated sector will also commit an offence if they fail to report when they have reasonable grounds for knowledge or suspicion - an objective test. On this basis, they may be guilty of the offence under s330 or 331 if they should have known or suspected money laundering.
For all failure to disclose offences you must either:
- know the identity of the money launderer or the whereabouts of the laundered property, or
- believe the information on which your suspicion was based may assist in identifying the money launderer or the whereabouts of the laundered property
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5.6.2 Section 330 - failure to disclose: regulated sector
A person commits an offence if
- he knows or suspects, or has reasonable grounds for knowing or suspecting, that another person is engaged in money laundering, and
- the information on which his suspicion is based comes in the course of business in the regulated sector, and
- he fails to disclose that knowledge or suspicion, or reasonable grounds for suspicion, as soon as practicable to a nominated officer or SOCA
Our view is that delays in disclosure arising from taking legal advice or seeking help from the Law Society may be acceptable provided you act promptly to seek advice.
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5.6.3 Section 331 - failure to disclose: nominated officer in the regulated sector
A nominated officer in the regulated sector commits a separate offence if, as a result of an internal disclosure under s330, he knows or suspects, or has reasonable grounds for knowing or suspecting, that another person is engaged in money laundering and he fails to disclose as soon as practicable to SOCA.
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5.6.4 Section 332 - failure to disclose: nominated officer in the non-regulated sector
An organisation which does not carry out relevant activities and so is not in the regulated sector, may decide on a risk-based approach to set up internal disclosure systems and appoint a person as nominated officer to receive internal disclsoures.
A nominated officer in the non-regulated sector commits an offence if, as a result of a disclosure, he knows or suspects that another person is engaged in money laundering and fails to make a disclosure as soon as practicable to SOCA.
For this offence, the test is a subjective one: did you know or suspect in fact?
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5.7 Exceptions to failure to disclose offences
There are three situations in which you have not committed an offence for failing to disclose:
- you have a reasonable excuse
- you are a professional legal adviser, or a relevant professional adviser, and the information came to you in privileged circumstances
- you did not receive appropriate training from your employer
The first defence is the only one which applies to all three failure to disclose offences; the other two defences are only specifically provided for persons in the regulated sector who are not nominated officers.
All of the failure to disclose sections also reiterate that the offence will not be committed if the property involved in the suspected money laundering is derived from exempted overseas criminal conduct .
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5.7.1 Reasonable excuse
No offence is committed if there is a reasonable excuse for not making a disclsoure, but there is no judicial guidance on what might constitute a reasonable excuse.
However, as with reasonable excuse under the principal money laundering offences, where common law legal professional privilege has not been expressly excluded, following the reasoning in Bowman v Fels, it is the Law Society's view that the decision not to make a disclosure because the information is subject to legal professional privilege would be a reasonable excuse.
You should carefully document any reasons for not making a disclosure under this section.
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5.7.2 Privileged circumstances
No offence is committed if the information or other matter giving rise to suspicion comes to a professional legal adviser, or relevant professional adviserin privileged circumstances.
You should note that receipt of information in privileged circumstances is not the same as legal professional privilege. It is a creation of POCA designed to comply with the exemptions from reporting set out in the European directives.
Privileged circumstances means information communicated:
- by a client, or a representative of a client, in connection with the giving of legal advice to the client, or
- by a client, or by a representative of a client, seeking legal advice from you
- by a person in connection with legal proceedings or contemplated legal proceedings
The exemption will not apply if information is communicated or given to the solicitor with the intention of furthering a criminal purpose.
The Crown Prosecution Service guidance for prosecutors indicates that if a solicitor forms a genuine, but mistaken, belief that the privileged circumstances exemption applies (for example, the client misleads the solicitor and uses the advice received for a criminal purpose) the solicitor will be able to rely on the reasonable excuse defence.
For a further discussion of privileged circumstances see Chapter 6.
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5.7.3 Lack of training
Employees within the regulated sector who have no knowledge or suspicion of money laundering, even though there were reasonable grounds for suspicion, have a defence if they have not received training from their employers. Employers may be prosecuted for a breach of the Money Laundering Regulations 2007 if they fail to train staff.
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5.8 Tipping off
The offences of tipping off for money laundering are contained in the Proceeds of Crime Act 2002 as amended by the Proceeds of Crime Act 2002 (Amendment) Regulations 2007 (POCA regulations 2007).
There are also tipping off offences for terrorist property in the Terrorism Act 2000, as amended by the TACT Regulations 2007.
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5.8.1 Offences
Tipping off - in the regulated sector
There are two tipping off offences in S333A of POCA. They apply only to business in the regulated sector.
- S333A(1) - disclosing a suspicious activity report (SAR). It is an offence to disclose to a third person that a SAR has been made by any person to the police, HM Revenue and Customs, SOCA or a nominated officer, if that disclosure might prejudice any investigation that might be carried out as a result of the SAR. This offence can only be committed:
- after a disclosure to SOCA or a nominated officer
- if you know or suspect that by disclosing this information, you are likely to prejudice any investigation related to that SAR
- the information upon which the disclosure is based came to you in the course of business in the regulated sector
- S333A(3) - disclosing an investigation. It is an offence to disclose that an investigation into a money laundering offence is being contemplated or carried out if that disclosure is likely to prejudice that investigation. The offence can only be committed if the information on which the disclosure is based came to the person in the course of business in the regulated sector. The key point is that you can commit this offence, even where you are unaware that a SAR was submitted
Prejudicing an investigation - outside the regulated sector
Section 342(1) contains an offence of prejudicing a confiscation, civil recovery or money laundering investigation, if the person making the disclosure knows or suspects that an investigation is being, or is about to be conducted. Section 342(1) was amended by paragraph 8 of the TACT and POCA Regulations 2007. The offence in s342 (2) (a) only applies to those outside the regulated sector. The offence in s342 (2) (b) applies to everyone.
You only commit the offence in s342 (2) (a) if you knew or suspected that the disclosure would, or would be likely to prejudice any investigation.
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5.8.2 Defences
Tipping off
The following disclosures are permitted:
- S333B - disclosures within an undertaking or group, including disclosures to a professional legal adviser or relevant professional adviser
- S333C - disclosures between institutions, including disclosures from a professional legal adviser to another professional legal adviser
- S333D - disclosures to your supervisory authority
- S333D(2) - disclosures made by professional legal advisers to their clients for the purpose of dissuading them from engaging in criminal conduct
A person does not commit the main tipping off offence if he does not know or suspect that a disclosure is likely to prejudice an investigation.
s333B - Disclosures within an undertaking or group etc
It is not an offence if an employee, officer or partner of a firm discloses that a SAR has been made if it is to an employee, officer or partner of the same undertaking.
A solicitor will not commit a tipping off offence if a disclosure is made to another lawyer either:
- within a different undertaking, if both parties carry on business in an EEA state
- in a country or territory that imposes money laundering requirements equivalent to the EU and both parties share common ownership, management or control
s333C - disclosures between institutions etc
A solicitor will not commit a tipping off offence if all the following criteria are met:
- The disclosure is made to another lawyer in an EEA state, or one with an equivalent AML regime.
- The disclosure relates to a client or former client of both parties, or a transaction involving them both, or the provision of a service involving them both.
- The disclosure is made for the purpose of preventing a money laundering offence.
- Both parties have equivalent professional duties of confidentiality and protection of personal data.
S333D(2) - limited exception for professional legal advisers
A solicitor will not commit a tipping off offence if the disclosure is to a client and it is made for the purpose of dissuading the client from engaging in conduct amounting to an offence. This exception and the tipping off offence in s333A apply to those carrying on activities in the regulated sector.
Prejudicing an investigation
S342(4) - professional legal adviser exemption
It is a defence to a S342(1) offence that a disclosure is made by a legal adviser to a client, or a client's representative, in connection with the giving of legal advice or to any person in connection with legal proceedings or contemplated legal proceedings.
Such a disclosure will not be exempt if it is made with the intention of furthering a criminal purpose (s342(5)).
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5.8.3 Making enquiries of a client
You should make preliminary enquiries of your client, or a third party, to obtain further information to help you to decide whether you have a suspicion. You may also need to raise questions during a retainer to clarify such issues .
There is nothing in POCA which prevents you making normal enquiries about your client's instructions, and the proposed retainer, in order to remove, if possible, any concerns and enable the firm to decide whether to take on or continue the retainer.
These enquiries will only be tipping off if you disclose that a SAR has been made to SOCA or a nominated officer or that a money laundering investigation is being carried out or contemplated. The offence of tipping off only applies to the regulated sector.
It is not tipping-off to include a paragraph about your obligations under the money laundering legislation in your firm's standard client care letter.
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