Obtaining consent from the NCA under Part 7 of the Proceeds of Crime Act (POCA) 2002 or under Part 3 of the Terrorism Act (TACT) 2000 This is a United Kingdom Financial Intelligence Unit (UKFIU) Guidance Note. It is produced in line with the National Crime Agency (NCA) commitment to share perspectives on the Suspicious Activity Reports (SARs) regime. October 2013 NOT PROTECTIVELY MARKED
Reading and using this document This document does not constitute legal advice. If you wish to obtain consent from the National Crime Agency (NCA), please ensure you are familiar with: Part 7 of the Proceeds of Crime Act (POCA) 2002 Part 3 of the Terrorism Act (TACT) 2000. If you are a business in the regulated sector 1, also consult any guidance issued by your supervisory body, professional body, or trade association If you are unsure, always seek your own legal advice. Section 1: In what circumstances do I need consent? Under the Proceeds of Crime Act (POCA) 2002 1. The decision as to whether or not to obtain consent will arise in the following scenarios: A. Concealing, disguising, converting, transferring or removing criminal property as defined in section 327 of POCA B. Facilitation of the acquisition, retention, use or control of criminal property by, or on behalf of another as defined in section 328 of POCA, or C. Acquisition, use, or possession of criminal property - as defined in section 329 of POCA. 2. The law refers to these acts as prohibited acts. 3. In any of these scenarios, you have two choices. You may choose not to go ahead with the activity in question. Or you may choose to proceed. A decision to proceed will mean that you may be committing a money laundering offence. However, if you have made an authorised disclosure and have obtained appropriate consent, you will not be committing an offence. 1 If you are unsure if your firm is in the regulated sector, consult your regulator, professional body or trade association which will advise. 2
Under Part 3 of the Terrorism Act (TACT) 2000 4. The decision as to whether or not to obtain consent will arise in any of these scenarios A. Fund-raising for the purposes of terrorism as defined in section 15 B. Use or possession of money or other property for the purposes of terrorism as defined in section 16 C. Making available money or other property for the purposes of terrorism as defined in section 17, or D. Facilitating the retention or control of terrorist property by, or on behalf of, another person as defined in section 18. Section 2: The process 5. Provided a matter has been appropriately reported, the decision as to whether to proceed with an act or not is yours. Even if you obtain consent, you are not obliged to continue with the act. Consent only applies in relation to individual acts, therefore any subsequent activity requires separate consideration and, if necessary, separate consent. 6. If you wish to apply to the NCA for a consent decision, you should submit a Suspicious Activity Report ( SAR ) which sets out: I. The information or other matter which provides the grounds for your knowledge, suspicion or belief; II. A description of the property that you know, suspect, or believe is: a) criminal property, or b) terrorist property, or c) is derived from terrorist property; and III. A description of the prohibited act for which you seek consent to carry out. 7. If knowledge or suspicion has arisen in the course of a business in the regulated sector, your SAR should also provide: 3 I. the identity of the person/s you know or suspect is involved in money laundering, or has committed, or attempted to commit an offence under sections 15 to 18 of TACT; II. the whereabouts of the property you know or suspect is: a) criminal property, or b) terrorist property, or c) is derived from terrorist property; and III. if you don t know (i) and/or (ii), information you believe, or could reasonably believe, may assist in identifying (i) or (ii) or both.
8. You are strongly advised to make it explicit in your SAR that you are seeking consent from the NCA. This will speed up processing times. This is important if you want the NCA to make a decision sooner than the statutory maximum period permitted (see Section 3 below). 9. You can submit a report by post, fax, or electronically via the SAR Online system. However, the NCA strongly recommends that you not submit by post when requesting consent. Contact details and the link to SAR Online are available on the NCA website (www.nationalcrimeagency.gov.uk). You may find it helpful to refer to separate NCA guidance on submitting a SAR. This is available on the website, or from your professional association, trade body, or regulator. 10. Use of SAR Online is recommended because it: Provides automated acknowledgement of receipt Assists in structuring your SAR in the most effective way, thereby improving processing time; and Provides the opportunity to flag the SAR as a consent issue. 11. Once your SAR is submitted, remember your obligation not to make a disclosure to anyone that may prejudice an investigation that might follow. Do not disclose that an investigation into allegations that an offence under Part 7 of POCA, or Part III of TACT, is being contemplated, or is underway. That may constitute tipping off as defined by section 333A of the Proceeds of Crime Act 2002, or section 21D of the Terrorism Act 2000. 12. The NCA does not provide or approve standard wording for you to use in such circumstances. It is therefore recommended that you give careful consideration as to how you manage your relationship with the subject once you have submitted the SAR. This is particularly pertinent if the subject is a client or customer of your business. If in doubt, please consult the NCA enquiry desk. Section 3: What to expect 13. The law allows the NCA seven working days to make a decision on whether to grant or refuse consent. A working day is any day which is not a weekend or a bank holiday. The seven day period starts on the first working day after the SAR is received by the NCA. 14. If you have not received any communication from the NCA within these seven days, the law allows you to assume you have appropriate consent. This provides a defence in law if you carry out the otherwise prohibited act. 15. In practice, the NCA seeks to make a decision on consent matters as soon as possible and will communicate this to you. The average time taken to make a 4
decision is just over 3 working days. However, there will be some instances where the full seven working days are required, particularly if the issue is novel or complex. You should consider the implications if required to wait seven working days for a decision, and how you will manage these. 16. In making consent decisions under POCA 2002, the NCA is guided by Home Office Circular 029/2008 2, details of which are on the NCA website. 17. It is probable that the NCA Consent Team will contact you about your SAR. Consent Team staff may need to clarify various issues. If you have not provided all the information required (see section 2 above), the Consent Team will request this. Normally, further information can be provided over the phone or by fax. However, this can be minimised by supplying at the outset the information set out above. 18. Once the NCA has reached a decision, it will communicate this by phone and send you a confirmation letter for your records. Your SAR will be held on the NCA SARs database for six years and then deleted. You may wish to consider the implications of this for your own record keeping. 19. If the NCA refuses consent, you will potentially be committing a criminal offence if you proceed with the act for which you sought consent. The Consent Team will advise you if there are other issues of which you need to be aware. The NCA frequently refers consent matters to other law enforcement agencies. Therefore, another law enforcement agency may contact you about your SAR. If you have any concerns regarding this, contact the NCA Consent Team who can discuss the process with you. Contacting the NCA UK Financial Intelligence Unit (UKFIU) For information or assistance with submitting SARs, SAR Online enquiries and consent, please visit www.nationalcrimeagency.gov.uk or contact the UKFIU as follows: Tel: 020 7238 8282 Press '2' - General SAR enquiries Press '3' - SAR Online helpdesk Press '4' - Consent SAR enquiries When contacting the UKFIU, please have available your SAR reference number if applicable. If you wish to make a SAR by post, please address it to UKFIU, PO Box 8000, London, SE11 5EN. Alternately, fax it to 0207 283 8286. Post and fax are slower than SAR Online, therefore it will take longer to process your SAR. You will not receive an acknowledgement if you use post or fax. 2 Proceeds of Crime Act 2002: Obligations to Report Money Laundering The Consent Regime 5
Disclaimer Whilst every effort is made to ensure the accuracy of any information or other material contained in this document, it is provided on the basis that the NCA and its staff, either individually or collectively, accept no responsibility for any loss, damage, cost or expense of whatever kind arising directly or indirectly from or in connection with the use by any person whomsoever, of any information or other material contained therein. Any use of the information or other material contained in this document by you signifies agreement by you to these conditions. 6
Protecting this document This is a government document that has been graded as NOT PROTECTIVELY MARKED. There are no specific requirements for storage or disposal and it can be considered safe for wide distribution within your organisation and for use in staff training or awareness programmes. Dialogue Team The aim of the Dialogue Team is to drive the UK Financial Intelligence Unit (UKFIU) agenda on interfacing with stakeholders on Suspicious Activity Reports (SARs) activity. The team strives to improve communication and understanding between the SARs regime participants, to increase the value extracted from the SARs regime, to provide, facilitate and contribute to various forums to share perspectives on the operation of the regime as a whole. In essence the Dialogue Team seeks to improve the quality of SARs intelligence, and promote the value and greater use of this intelligence in mainstream law enforcement activity. For further information, please contact NCA Dialogue Team by email at finrelteam@nca.x.gsi.gov.uk For more information about the National Crime Agency go to www.nationalcrimeagency.gov.uk Protecting the Public Providing information back to the NCA Section 7(1) of the Crime and Courts Act 2013 allows you to disclose information to the NCA, provided the disclosure is made for the purposes of discharging the NCA s functions of combating serious, organised and other kinds of crime. The disclosure of such information to the NCA will not breach any obligation of confidence you may owe to a third party or any other restrictions (however imposed) on the disclosure of this information. The disclosure of personal information about a living individual by you to the NCA must still comply with the provisions of the Data Protection Act 1998 (DPA). However, you may be satisfied that the disclosure by you of such personal information to the NCA in order to assist the NCA in carrying out its functions may be permitted by s29 of the DPA. Any Section 7(1) information should be submitted to ukfiusars@nca.x.gsi.gov.uk Handling Advice Legal Information This information is supplied by the UK s NCA under Section 7(4) of the Crime and Courts Act 2013. It is exempt from disclosure under the Freedom of Information Act 2000. It may be subject to exemptions under other UK legislation. Except where permitted by any accompanying handling instructions, this information must not be further disclosed without the NCA s prior consent, pursuant to section 6, schedule 7 of the Crime and Courts Act 2013. This report may contain Sensitive Material as defined in the Attorney General s guidelines for the disclosure of Unused Material to the defence. Any sensitive material contained in this report may be subject to the concept of Public Interest Immunity. No part of this report should be disclosed to the defence without prior consultation with the originator. Requests for further disclosure which are not permitted by any handling instructions or handling code must be referred to the NCA originator from whom you received this information, save that requests for disclosure to third parties under the provisions of the Data Protection Act 1998 or the Freedom of Information Act 2000 and equivalent legislation must be referred to the NCA s Public Information Compliance Unit by e-mail on picuenquiries@nca.x.gsi.gov.uk. 7