money laundering (workbook) Flashcards
(47 cards)
which of direct and non-direct involvement offences are criminal offences?
both of them!
who could be guilty of a direct offence
everyone
who could be guilty of a non-direct offence
people working in the regulated sector which includes people participating in financial and real property transactions
examples of financial and real property transactions
(a) the buying and selling of real property or business entities;
(b) the managing of client money, securities or other assets;
(c) the opening or management of bank, savings or securities accounts;
(d) the organisation of contributions necessary for the creation, operation or management of
companies; or
f(e) the creation, operation or management of trusts, companies, foundations or similar
structures,
what does not fall within the regulated sector?
litigation
direct involvement offences (3)
- s327
- s328
- s329
non-direct involvement offences (3)
- s331 - failure to disclose
- s333A - tipping off (know or suspect internal or external reports) have been made)
- s333A(3) - tipping off (contemplated or actual investigation)
s327
concealing / disguising / converting / transferring criminal property, or removing it from the UK
s328
becoming concerned in an arrangement which you know or suspect facilitates the acquisition / retention / use / control of criminal property
s329
acquiring / using / possessing criminal property
e.g., holding it in your firm’s bank account
can one event give rise to multiple offences?
yes
s330: failure to disclose to MLRO or NCA
(a) you know or suspect that someone is laundering the proceeds of any criminal conduct;
(b) you receive the information in the course of business in the regulated sector; and
(c) you can identify the person who is laundering the proceedings of criminal conduct OR the whereabouts of the laundered property
if the MLRO makes a suspicious activity report (SAR) to the NCA, neither the MLRO nor the fee earner should undertaken any further work unless:
- authorised to do so by the NCA; or
- 7 working days (notice period) has passed from the SAR to NCA, during which time the NCA has not refused authority to proceed; or
- the NCA refused consent during the notice period, and the moratorium period (31 days starting with the day the firm received notice that consent was refused) has expired.
if the MLRO makes a suspicious activity report (SAR) to the NCA, neither the MLRO nor the fee earner should do any further work unless?
- authorised to do so by the NCA;
- 7 working days have passed since making the SAR to the NCA, and the NCA has not refused authority to proceed; or
- the NCA HAS refused authority to proceed, but the moratorium (31 days starting with the day the NCA refused consent) has expired
s333A: tipping off
if you know or suspect that an internal or external report has been made, it is an offence to tell (tip off) your client or third party, thereby prejudicing any investigation
s333A(3):
it is an offence to disclose that an investigation is being contemplated or carried out, if the disclosure is likely to prejudice the investigation
who is responsible for ensuring the firm takes all steps required to comply with MLR
- COLP
- COFA
- Managers
what must firms do re ML risk assessment
keep an up to date AML written record of all the steps they have taken (i.e. an updated AML risk assessment doc)
some warning signs that money laundering might be about to take place
- unusual retainers
- instructions outside firm’s expertise
- use of client accounts
- setting up a trust
- property purchase
- clients paying large sums in cash
- money coming from high risk jurisdictions
- money being sent to offshore tax havens
s 338 authorised disclosure defence - made during
- did not know/suspect it represented a benefit from criminal conduct & so act was not prohibited, AND
- the disclosure is made on their own initiative, and
- as soon as it is practicable for them to make it
s 338 authorised disclosure defence - after
- good reason for failure to disclose before, and
- disclosure made on their own initiative, and
- as soon as it is practicable to make it
what is a disclosure to a nominated officer
- to a person nominated to receive authorised disclosures, and
- in the course of the alleged offender’s employment
i.e. MLRO
what are other defences to direct involvement offences other than authorised disclosure under s 338
- making s 338 disclosure and if it was before the act, having appropriate consent, or
- not making a s 338 disclosure but having reasonable excuse for not doing so, or
- the prohibited act is in carrying out a function re enforcing any provision of PoCA 2002 / any other enforcement re criminal conduct
what is the rule re criminal offences committed outside the UK
no offence if criminal conduct which makes the property in question criminl property, took place outside UK and was not unlawful in that territory
