Section 330 Proceeds of Crime Act 2002

ER 1 sigSection 330 Proceeds of Crime Act 2002 requires persons working in the ‘regulated sector’ to report their suspicions of money laundering by others, subject to certain exceptions.

The ‘regulated sector’ is defined by Schedule 9 PoCA 2002, as amended.  The most significant amendment to Schedule 9 was made by the Proceeds of Crime Act 2002 (Business in the Regulated Sector & Supervisory Authorities) Order 2007 which entirely replaced Parts 1 & 2 of the originally enacted schedule.  There have been a number of more minor amendments to the extent of the ‘regulated sector’ subsequently.

But s330 itself has been subject to important amendments on a number of occasions, not only has the original text been amended but six entirely new subsections have been added.  In consequence there is not, as far as I am aware, an up to date copy of s330 freely available on the internet.

I set out below my understanding of the current wording of s330 at the time of writing (November 2015).

 

Section 330 Proceeds of Crime Act 2002

Failure to disclose: regulated sector

(1)     A person commits an offence if the conditions in subsections (2) to (4) are satisfied.

(2)     The first condition is that he –

    • (a) knows or suspects, or
    • (b) has reasonable grounds for knowing or suspecting,

that another person is engaged in money laundering.

(3)     The second condition is that the information or other matter –

    • (a) on which his knowledge or suspicion is based, or
    • (b) which gives reasonable grounds for such knowledge or suspicion,

came to him in the course of a business in the regulated sector.

(3A)  The third condition is –

    • (a) that he can identify the other person mentioned in subsection (2) or the whereabouts of any of the laundered property, or
    • (b) that he believes, or it is reasonable to expect him to believe, that the information or other matter mentioned in subsection (3) will or may assist in identifying that other person or the whereabouts of any of the laundered property.

(4)     The fourth condition is that he does not make the required disclosure to –

    • (a) a nominated officer, or
    • (b) a person authorised for the purposes of the Part by the Director General of the National Crime Agency,

as soon as is practicable after the information or other matter mentioned in subsection (3) comes to him.

(5)     The required disclosure is a disclosure of –

    • (a) the identity of the other person mentioned in subsection (2), if he knows it,
    • (b) the whereabouts of the laundered property, so far as he knows it, and
    • (c) the information or other matter mentioned in subsection (3).

(5A)   The laundered property is the property forming the subject-matter of the money laundering that he knows or suspects, or has reasonable grounds for knowing or suspecting, that other person to be engaged in.

(6)     But he does not commit an offence under this section if –

    • (a) he has a reasonable excuse for not making the required disclosure,
    • (b) he is a professional legal adviser or relevant professional adviser and –
      • (i) if he knows either of the things mentioned in subsection (5)(a) and (b), he knows the thing because of information or other matter that came to him in privileged circumstances, or
      • (ii) the information or other matter mentioned in subsection (3) came to him in privileged circumstances, or
    • (c) subsection (7) or (7B) applies to him.

(7)     This subsection applies to a person if –

    • (a) he does not know or suspect that another person is engaged in money laundering, and
    • (b) he has not been provided by his employer with such training as is specified by the Secretary of State by order for the purposes of this section.

(7A)    Nor does a person commit an offence under this section if –

    • (a) he knows, or believes on reasonable grounds, that money laundering is occurring in a particular country or territory outside the United Kingdom, and
    • (b) the money laundering –
      • (i) is not unlawful under the criminal law applying in that country or territory, and
      • (ii) is not of a description prescribed in an order made by the Secretary of State.

(7B)   This subsection applies to a person if –

    • (a) he is employed by, or is in partnership with, a professional legal adviser or a relevant professional adviser to provide the adviser with assistance or support,
    • (b) the information or other matter mentioned in subsection (3) comes to the person in connection with the provision of such assistance or support, and
    • (c) the information or other matter came to the adviser in privileged circumstances.

(8)     In deciding whether a person committed an offence under this section the court must consider whether he followed any relevant guidance which was at the time concerned –

    • (a) issued by a supervisory authority or other appropriate body,
    • (b) approved by the Treasury, and
    • (c) published in a manner it approved as appropriate in its opinion to bring the guidance to the attention of persons likely to be affected by it.

(9)     A disclosure to a nominated officer is a disclosure which –

    • (a) is made to a person nominated by the alleged offender’s employer to receive disclosures under this section, and
    • (b) is made in the course of the alleged offender’s employment.

(9A)   But a disclosure which satisfies paragraphs (a) and (b) of subsection (9) is not to be taken as a disclosure to a nominated officer if the person making the disclosure –

    • (a) is a professional legal adviser or relevant professional adviser,
    • (b) makes it for the purpose of obtaining advice about making a disclosure under this section, and
    • (c) does not intend it to be a disclosure under this section.

(10)   Information or other matter comes to a professional legal adviser or relevant professional adviser in privileged circumstances if it is communicated or given to him –

    • (a) by (or by a representative of) a client of his in connection with the giving by the adviser of legal advice to the client,
    • (b) by (or by a representative of) a person seeking legal advice from the adviser, or
    • (c) by a person in connection with legal proceedings or contemplated legal proceedings.

(11)   But subsection (10) does not apply to information or other matter which is communicated or given with the intention of furthering a criminal purpose.

(12)   Schedule 9 has effect for the purpose of determining what is –

    • (a) a business in the regulated sector;
    • (b) a supervisory authority.

(13)   An appropriate body is any body which regulates or is representative of any trade, profession, business or employment carried on by the alleged offender.

(14)   A relevant professional adviser is an accountant, auditor or tax adviser who is a member of a professional body which is established for accountants, auditors or tax advisers (as the case may be) and which makes provision for –

    • (a) testing the competence of those seeking admission to membership of such a body as a condition for such admission; and
    • (b) imposing and maintaining professional and ethical standards for its members, as well as imposing sanctions for non-compliance with those standards.

 

Contacting us

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David

(Note: This article applies to the provisions of Section 330 of the Proceeds of Crime Act 2002 in England and Wales.  There are a number of issues which could be relevant to obligations or proceedings under these provisions in particular circumstances which it is not possible to deal with in an article such as this.  Appropriate professional or legal advice should be sought in each individual case.)

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