Suspicious activity reports: Seeking 'consent'
In the latest year for which information is available (2018/19), over 470,000 suspicious activity reports (SARs) were made to the National Crime Agency (NCA). Of these, 4,976 SARs in total came from the accounting and tax profession.
The term ‘consent’ is often misinterpreted as ‘permission’ and in a number of cases in the profession the process has been used as a mechanism to validate continuing to act for a client when there are ethical concerns.
Such requests are always refused as that is not the purpose of the consent regime. There are other points of reference in such matters including the ICAS Code of Ethics and the Professional Conduct in Relation to Taxation guidelines.
Where a reporter has submitted a SAR and obtained the appropriate consent (or prior consent under TACT), the reporter obtains a defence against the commission of offences under Ss.327, 328 and 329 of POCA i.e. being involved in, making arrangements to facilitate or having use of or being in possession of the proceeds of crime. The reporter would not, if granted consent under TACT, commit one of the terrorist financing offences under Ss.15-18 of TACT
A granted response and the defence it provides does not though:
- Imply NCA approval of the proposed act(s), persons, corporate entities or circumstances contained in the disclosure;
- Oblige or mandate a reporter to undertake the proposed act;
- Provide derogation from, or replace, a reporter’s professional duties of conduct or regulatory requirements such as those under the Money Laundering Regulations 2007 concerning due diligence, etc.;
- Provide a reporter with a criminal defence against any other criminal offences pertaining to the proposed act; or,
- Override the private law rights of any person who may be entitled to the property specified in the disclosure.
The NCA has now updated its guidance on requesting what is now termed a ‘defence’ under POCA and TACT. The term ‘consent’ will still though be used in the formal grant or refusal letters. The guidance also answers some common questions around consent process including case closure. It is available at the publications section of www.nationalcrimeagency.gov.uk.