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Proceeds of Crime Act 2002 - Coggle Diagram

- - - - overseas defence
      - authorised disclosure defence
    - - max 14 years prison
      - unlimited fines
  - - - Offence Definition:
        Entering into or being concerned in an arrangement to facilitate dealings with criminal property.
      - "Know or Suspect":
        The threshold is low, requiring only a "possibility, more than fanciful" that criminal property exists
      - Criminal Property:
        Defined as property derived from direct or indirect criminal conduct, including offences abroad if they would be criminal in the UK.
        
        any criminal offence in UK/ would be offence in UK (if committed abroad)
        
        person must know or suspect that the property constutes a benefit from/represents criminal conduct
    - - Authorised Disclosure
        A solicitor can avoid liability by making a disclosure to the firm's nominated officer/ Money Laundering Reporting Officer (MLRO) or the National Crime Agency (NCA)
        
        timing of disclosure
        
        After the act: Must have a valid reason for delayed disclosure.
        Good Reason for Delayed Disclosure:
        
        The solicitor must demonstrate a valid reason for failing to make the disclosure prior to completing the act.
        
        The justification must show why disclosure was not practicable or reasonable at the time.
        
        Prompt Action After Completion:
        
        The solicitor must disclose their suspicion as soon as is practicable after completing the act.
        
        Disclosure must be made on the solicitor’s own initiative to the firm’s nominated officer (or directly to the NCA if appropriate).
        
        Criminal Property Knowledge/Suspicion:
        The solicitor must have discovered or reasonably suspected that the property constituted or represented a person’s benefit from criminal conduct
        
        Before the act: Must obtain consent to proceed.
        
        complete defence
        
        Timing of Disclosure:
        The disclosure must be made as soon as practically possible prior to the transaction.
        Consent Requirement:
        Making the disclosure alone does not suffice; proceeding without consent remains an offence
        
        consent= defence against money laundering, does not validate transaction ethically/legally
        
        Procedure after disclosure to nominated officer/MLRO
        
        Once the NO reports the matter to the NCA via a Suspicious Activity Report (SAR), they cannot grant consent unless one of the following occurs:
        (a) NCA Consent Received:
        The NCA explicitly grants consent.
        (b) 7-Day Rule:
        If the NCA does not respond within seven working days starting from the day after the SAR is submitted, consent is deemed granted.
        (c) 31-Day Refusal Period:
        If consent is refused, the NO may not authorise the transaction unless:
        
        The NCA subsequently grants consent.
        
        31 calendar days elapse without action by the authorities (the "moratorium period").
        
        The 31-day period can be extended in specific circumstances, such as ongoing investigations.
        
        During the act: Must disclose as soon as suspicions arise.
        Disclosure During the Act:
        The disclosure must be made while the prohibited act (e.g., facilitating a transaction involving criminal property) is still ongoing.
        No Knowledge or Suspicion Initially:
        When the solicitor first began their involvement in the act, they must not have known or suspected that the property was criminal.
        Prompt Disclosure on Suspicion:
        Once the solicitor forms the suspicion that the property constitutes or represents a benefit from criminal conduct, they must:
        
        Disclose this suspicion to the firm’s NO
        
        Make the disclosure on their own initiative.
        
        Act as soon as is practicable after forming the suspicion.
        
        process for making AD
        
        Who to Disclose To:
        
        A constable (police).
        
        An officer of His Majesty’s Revenue and Customs (HMRC).
        
        A nominated officer (e.g., the firm’s Money Laundering Reporting Officer (MLRO)).
        
        Role of the MLRO:
        
        Often the primary point of contact in legal firms.
        
        Responsible for assessing disclosures and reporting valid suspicions to the National Crime Agency (NCA).
        
        Submitting a Suspicious Activity Report (SAR):
        
        Made by the MLRO to the NCA.
        
        Preferably submitted online for speed and efficiency.
        
        Alternatively, sent by post using standard NCA forms.
        
        Judgment and Obligation:
        
        The MLRO must use independent judgment when deciding to escalate a report to the NCA.
        
        Failure to report, when there are reasonable grounds to suspect money laundering, may expose the MLRO to criminal liability.
        
        requirements for AD
        
        To qualify, the disclosure must:
        
        Be made by the individual who would otherwise commit the offence.
        
        Relate to criminal property.
        
        Comply with timing and procedural requirements.
      - Reasonable Excuse:
        Non-disclosure may be excused if the reason is justifiable (e.g., information already public).
      - Overseas Defence:
        If the conduct occurred abroad and was lawful in that country, this may serve as a defence unless overridden by the Secretary of State.
    - - maximum sentence of 14 years’
        imprisonment
  - - - authorised disclosure defence
      - overseas defence
      - adequate consideration defence
        A person does not commit an offence if they provide adequate consideration (e.g., goods or services) in return for acquiring, using, or possessing criminal property, provided:
        
        They did not know or suspect that the goods or services might assist criminal conduct.
        
        for solicitors
        CPS Guidance: This defence applies to solicitors receiving payment for professional services (e.g., legal fees).
        Conditions:
        
        The fees charged must be reasonable.
        
        The defence does not apply if:
        
        The value of work is significantly less than the amount received.
        
        The solicitor knew or suspected that their services would assist criminal conduct.
    - - max 14 years prison
      - unlimited fines
- - - - requirements
        
        A nominated officer commits an offence if:
        
        They know or suspect, or have reasonable grounds to know or suspect, money laundering due to their role in receiving disclosures under Section 330.
        
        They fail to disclose the information to the NCA as soon as practicable
      - defence- reasonable excuse
      - penalty= max years
    - - Offence: A solicitor commits an offence if they:
        
        Know, suspect, or have reasonable grounds to suspect that someone is involved in money laundering.
        
        Receive information in the course of their business.
        
        The information could help identify the money launderer or locate laundered property.
        
        Fail to disclose this information as soon as practicable.
    - - Reasonable Excuse: If the solicitor had a valid reason for not disclosing, they may avoid conviction.
      - Training Defence: A solicitor may not be convicted if they lacked proper anti-money laundering training and didn’t know or suspect money laundering.
      - Legal Professional Privilege: Privileged information does not need to be disclosed unless related to furthering criminal conduct.
        - advice privilege
        -litigation priviledge
      - overseas defence
    - - max 5 years imprisonment
  - - - Disclosing a disclosure
        It is an offence to inform anyone that a relevant disclosure (e.g., to the nominated officer or NCA) has been made if that disclosure is likely to hinder an investigation.
      - Disclosing an investigation
        It is an offence to reveal that an investigation into money laundering is underway or planned if this could prejudice the investigation.
    - - Lack of knowledge or suspicion: If the person did not know or suspect that their disclosure would prejudice an investigation
      - Adviser-client communication: A solicitor may inform the client to dissuade them from continuing with alleged money laundering, but this is risky and should be done with caution
    - - both offences carry unlimited fine and/or 2 years in prison