Anti-Money Laundering

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  • Created by: lawliv
  • Created on: 30-05-17 12:54
Main objectives of the Act are to criminalise the receipt of any benefit from 'criminal property', which includes money laundering.
Part 7 POCA 2002
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Defines 'criminal property' - (a) constitutes a person's benefit from criminal conduct, and (b) the alleged offender knows or suspects that it constitutes or represents such a benefit.
section 340(3), POCA 2002
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It is an offence to conceal, disguise, covert, transfer or remove criminal property from England and Wales, Scotland or Northern Ireland.
section 327, POCA 2002
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No offence if the value is less than £250. (Conceal, disguise, convert, transfer or remove...)
section 327(2C) POCA 2002
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The offence includes concealing or disguising the nature, source, location, movement, ownership or disposition of the property.
section 327(3) POCA 2002
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Property includes money, real, personal, heritable or moveable, things in action and other incorporeal property.
section 340(9) POCA 2002
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A person benefits from conduct if he obtains property as a result of or in connection with the conduct.
section 340(5) POCA 2002
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section 328 only applies to property which is criminal prior to the arrangement.
R v Geary
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The 'other' person had to be identified or at least identifiable at the moment of the arrangement.
Stephen Dare v CPS
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Lord Devlin - 'suspicion' related to a 'state of conjecture or surmise where proof is lacking'.
Hussein v Chang Fook Kam
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Lord Scott - 'suspicion is a word that can be used to describe a state of mind that may, at one extreme, be no more than a vague feeling of unease and, at the other extreme, reflect a firm belief in the existence of the relevant facts'.
Manifest Shipping Co v Uni-Polaris Insurance
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Must be reasonable grounds for the suspicion.
R v Saik
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The burden is upon the reporting institution to prove suspicion,
Shah v HSBC Private Bank
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'The boundary between a real but "vague sense of unease" and the thought that there is a "more than fanciful possibility" that a transaction might involve money laundering is easy to articulate but almost impossible to identify in practice.'
Marshall
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section 330(2) does not require that money laundering is actually taking place.
Ahmad v HM Advocate
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It is an offence to acquire, use or have possession of criminal property. Does not require dishonesty, mere suspicion is enough.
section 329 POCA 2002
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Liability for sections 327-329 - on summary conviction, liable to imprisonment for a term not exceeding 6 months, or to a fine, or both. On conviction on indictment, liable to imprisonment for a term not exceeding 14 years, or to a fine, or both.
section 334(1)(a) POCA 2002
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Authorised disclosures-in the regulated sector, permitted to make disclosures to the NCA. Must occur: (a)before the money laundering has occured;(2A) while it is occurring but as soon as you suspect it or (3)after it occurred, if you have good reason
section 338 POCA 2002
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Reasonable excuse - intended to make a disclosure but had reasonable excuse for not doing so.
section 327(2)(b), section 328(2)(b) and section 329(2)(b) POCA 2002
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Law enforcement - exonerates any act done in the enforcement of the act.
section 327(2)(c), section 328(2)(c) and section 329(2)(c) POCA 2002
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De minims - all transactions of criminal property have to be over £250.
section 103 Serious Organised Crime and Police Act 2005
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Overseas conduct - no offence is committed if he knows that the criminal conduct occurred outside the UK, and, at the time, was not unlawful in that country.
section 102 Serious Organised Crime and Police Act 2005
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Failure to disclose - must know or suspect or have reasonable grounds knowing or suspecting, that another person is engaged in money laundering. Information must come to him in the course of the regulated sector. Offence if does not make a disclosure
section 330 POCA 2002
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Failure to disclose (nominated officer) - must know or suspect, or have reasonable grounds for knowing or suspecting, and knowledge must come to him in consequence of a disclosure under section 330.
section 331 POCA 2002
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(Failure to disclose) Must know the identity of the money launderer, or whereabouts of laundered money.
section 330(3A)(a) and section 331(3A)(a) POCA 2002
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'An objective test is necessary because we want the financial industry at large to be must more diligent in identifying and reporting instances of money laundering.
Hansard Report
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Cannot just 'close your eyes' to 'the clearest evidence' of money laundering.
R v Griffith and Paterson
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Liability for failure to report - on summary conviction to 6 months, or a fine, or to both. On conviction on indictment, to 5 years, or a fine, or both.
section 334(2) POCA 2002
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Exceptions to failure to disclose - reasonable excuse.
section 330(6)(a) and section 331(6) POCA 2002
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Exceptions to failure to disclose - professional legal advisor.
section 330(6)(b) POCA 2002
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Exceptions to failure to disclose - lack of training.
section 330(7) POCA 2002
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No evidence of criminal wrongdoing, no charge brought. Stopped business operating and couldn't afford adequate legal protection.
Squirrel v National Westminster Bank
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Tipping off - if the disclosure if likely to prejudice any investigation, and information came to him in the regulated sector, an offence if disclosed that investigation has been committed or is being carried out or contemplated.
section 333A POCA 2002
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Liability for tipping off - on summary conviction, imprisonment of 3 months, to a fine not exceeding level 5, or both. On conviction on indictment, to imprisonment for 2 years, to a fine, or both.
section 333A(4) POCA 2002
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Bank refused to give information with regard to the freezing of customer's account. Court said that the bank does not have to say anything at all.
R v Shah
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MLR: Customer due diligence - identify the customer and verify the customer's identity, identify, where the is a beneficial owner, who is not the customer, the beneficial owner and verify his identity.
Regulation 5
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MLR: Application of customer due diligence measures - apply when establishes a business relationship, carries out an occasional transaction, suspects money laundering or terrorist financing, doubts veracity or adequacy of documents, data or info.
Regulation 7
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MLR: Ongoing customer due diligence - scrutiny of transactions throughout the relationship to ensure transactions are consistent with knowledge of the customer, and keeping documents, data or information up to date.
Regulation 8
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MLR: Failure of customer due diligence - where unable to carry out customer due diligence, must not carry out a transaction, must not establish a business relationship or carry out occasional transaction, must terminate existing business relationship
Regulation 11
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MLR: Record keeping - copy of or reference to evidence of customer's identity, supporting records in respect of business relationship or occasional transaction. 5 years beginning on date transaction is completed or business relationship ends.
Regulation 19
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Other cards in this set

Card 2

Front

Defines 'criminal property' - (a) constitutes a person's benefit from criminal conduct, and (b) the alleged offender knows or suspects that it constitutes or represents such a benefit.

Back

section 340(3), POCA 2002

Card 3

Front

It is an offence to conceal, disguise, covert, transfer or remove criminal property from England and Wales, Scotland or Northern Ireland.

Back

Preview of the front of card 3

Card 4

Front

No offence if the value is less than £250. (Conceal, disguise, convert, transfer or remove...)

Back

Preview of the front of card 4

Card 5

Front

The offence includes concealing or disguising the nature, source, location, movement, ownership or disposition of the property.

Back

Preview of the front of card 5
View more cards

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