Short Anti Money Laundering Flashcards
When is offence of concealment committed?
If solicitor:
- subjectively knows or suspects
- they are concealing, converting, transferring property or removing it from the UK.
Defence
- authorised disclosure to officer, NCA, police before
- or after if did not know/suspect at time
When is offence of arranging committed?
Solicitor
- knows or suspects they are
- facilitating the acquisition, retention, use or control of criminal property by or on behalf of another person
EXCEPTION
- ordinary conduct of litigation or ADR
- unless it is sham litigation/ADR
Defence
- authorised disclosure to officer, NCA, police before
- or after if did not know/suspect at time
When is offence of acquisition, use or possession committed?
Solicitor:
- knows or suspects it is criminal property; and
- acquires, possesses or uses criminal property
Defence
- authorised disclosure
- adequate consideration (legal services) and in good faith
When is offence of failure to report committed?
Solicitor has duty to make SAR when they have suspicion of money laundering if:
- knowledge, suspicion or ought to have known or been suspicious
- money laundering or Terrorist Financing
- from any information obtained in course of business
To
- nominated officer / replacement
- directly to NCA if officer is absent
Offence of failure to report
Failure to make SAR if suspect money laundering as soon as practicable
Delay
- only if taking legal advice and sought the advice promptly
What defences are there to failure to report?
Privilege: if came to solicitor:
- from client/representative in connection with giving legal advice
- from client/representative seeking legal advice
- from person in connection with legal proceedings/ contemplated legal proceedings
Lack of training (ML only // NOT Terror financing)
- employees who fail to see reasonable grounds for suspicion because
- have received no training
(- but partners of firm may be prosecuted)
When is offence of tipping off committed?
Solicitor indicates directly or indirectly to 3rd party that:
- SAR has been submitted
- if this is likely to prejudice any investigation that might be carried out - disclosing investigation to a 3rd party
May include just asking client for extension
Defences to tipping off?
- To other legal professional in same firm
- To other legal professional
- in uk, EEA or jurisdiction with equivalent AML regime;
- disclosure relates to client/former client of both, transaction/provision of legal services involving both;
- disclosure is made for purpose of preventing money laundering offence. - To supervisory body
When is the offence of prejudicing an investigation committed?
When a person knows or suspects an investigation is being/about to be conducted; and
- makes a disclosure to any person that is likely to prejudice the investigation or
- falsifies, conceals or destroys documents relevant to the investigation or causes this to happen
What are defences to prejudicing an investigation?
If:
1. he does not know or suspect that the disclosure is likely to prejudice the investigation,
- he does not know or suspect that the documents are relevant to the investigation, or
- he does not intend to conceal any facts disclosed by the documents
- he is a professional legal adviser and it falls under legal or litigation privilege
- unless intending to further criminal purpose
When must CDD be performed?
- when first establishing a business relationship with client
- if any client proposes to enter a transaction/linked transactions of EU15,000 or more
- solicitor suspects money laundering or Terror financing
- solicitor doubts the veracity of documents or data previously submitted by a client
What are a solicitors duties for properly submitting a SAR
Responsibility is to personally submit to officer (cannot delegate)
If officer is not available then directly yo NCA
What is the process after a SAR is submitted
Once submitted to NCA
- NCA has 7 working days to investigate and ask for more information
- cannot complete act which may constitute money laundering but other acts can be
If no reply after 7 working days then deemed consent
if NCA refuses consent
- cannot do prohibited act in 31 day moratorium period (but other steps can be taken)
Is there an exception to conducting CDD later then rules say?
NOT for occasional transaction
CDD can be done as soon as practicable and during establishment of relationship if:
- it is necessary not to interrupt the normal conduct of business; and
- there is little risk of money laundering or terror financing
(EXAMPLE: Insolvency where you cannot waste time)
How long must CDD records be kept?
5 years after end of client relationship
