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POCA 2008 - Refresher

Jennifer Carter-Manning
7 Bedford Row
www.7br.co.uk

Jennifer Carter-Manning is a barrister based in
London, specialising in complex investigations and
litigation. She has extensive experience of fraud
and money laundering cases, both in the UK and on
the Isle of Man.
7 Bedford Row is a large set of UK barristers, with
specialisms including crime, civil, commercial,
international and regulatory law.
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Why?
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Why POCA 2008?
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Why a Refresher?
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It contains crimes you might commit

Most people have forgotten what it does

Why Jennifer Carter-Manning?
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UK Barrister – fraud & money laundering
Extensive on-Island experience

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POCA Regulated Sector: Codes dominate
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Suspicious transaction trigger
event

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Risk assessments

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Identification procedures

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Due diligence

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Record keeping

The bigger picture .

The even bigger picture .

(CJA 1990 and DTA 1996) ¡ Wider & stronger investigative powers ¡ Create offences for regulated businesses ¡ Enhance cooperation with other jurisdictions .Point of POCA? ¡ Bring laundering of drug money and other criminal money into one piece of legislation.

Point of POCA? ¡ The response to international pressure ¡ Followed broadly the UK Act of 2002 ‘.. 2008) 7 ..a major piece of legislation which is likely to have a substantial impact on working practices for financial institutions. law enforcements agencies and lawyers’ (Very Wise Barristers. regulators.

Parts of POCA 1: Civil Recovery 2: Confiscation & Restraint 3: Money laundering 4: Investigations 8 .

Parts of POCA 5: Bankruptcy & Winding up 6 & 7: Information & Cooperation 8. 9. 10: Amendments & Misc Schedules 9 .

The Codes ¡ Section 157 Codes: l Money Laundering & Terrorist Financing (amended) Code 2013 l Proceeds of Crime (Money Laundering – Online Gambling) Code 2010 .

¡ Defence? Reasonable measures ¡ Guidance will be considered .Section 157(2)(d) ¡ ¡ Provides that the Codes made under POCA can create criminal offences for noncompliance – max of 2 years custody The Codes do provide for criminal offences for non-compliance: Paragraph 28(1).

Regulated sector offences ¡ 142 – failure to disclose l l l Regulated sector Knowledge / suspicion / reasonable grounds to suspect Offence not committed if disclosure made to a nominated person .

Regulated sector offences ¡ 143 – failure to disclose (regulated nominated officers) l l ¡ Regulated sector Knowledge / suspicion / reasonable grounds to suspect 144 – failure to disclose (other nominated officers) l Knowledge / suspicion 13 .

Regulated sector offences ¡ 145 – tipping off l l l ¡ Regulated sector Disclosure of a disclosure Likely to prejudice an investigation 146 – 148 l l l l Disclosures within a group Exceptions for group activities Exceptions for institutions Exceptions for supervisory authorities & advisers 14 .

converting. transferring or removing criminal property l 140: Arrangements l 141: Acquisition.overview ¡ Section 139.Money laundering offences . use and possession . disguising. 141 l 139: Concealing. 140.

Money Laundering Offences 139: Concealing. disguising. converting. transferring or removing criminal property l l l Includes disguising / concealing ownership / rights over it Breadth of ‘converting’ (R v Fazal [2010]) Not an offence if a person makes an authorised disclosure .

Section 158: Definition of criminal property ¡ Property is criminal property if: l l ¡ It constitutes a person’s benefit from criminal conduct or represents such a benefit (in whole or in part. directly or indirectly). or when they offended . AND The alleged offender knows or suspects that it constitutes or represents such a benefit. Immaterial who the offender is.

Defences No offence if: l Authorised disclosure made l Involved in enforcement of the Act or similar l Know / believe that the criminal conduct was abroad and legal l Deposit-taking body does the act in operating an account and it is less than £250 .

Money Laundering Offences 141: Acquires. uses or has possession of criminal property l l l Not an offence if: as for 139 & 140 Not an offence if an authorised disclosure is made NB that adequate consideration has gone (although note that the definition of adequate consideration remains..) ...

retention. use or control of criminal property by or on behalf of another Not an offence if: as for 139 Not an offence if an authorised disclosure is made .Money Laundering Offences 140: Arrangements l l l l l Enters into or becomes concerned in an arrangement Which the person knows or suspects facilitates (by whatever means) The acquisition.

Arrangements ¡ ¡ ¡ ¡ R v Geary 2011 Dare v CPS 2012 AG v Holt Calls for the adequate consideration defence to be reinstated and broadened .

do not look lightly on professionals . 141: l l ¡ Section 142. 143 or 144: l l ¡ Summary conviction – 6 months / £5000 On conviction on information – 14 years or fine Summary conviction – 6 months / £5000 On conviction on information – 5 years or fine Principles of sentencing.Penalties ¡ Section 139. 140.

What is an authorised disclosure? ¡ ¡ ¡ ¡ A creature of primary legislation Defence to a money laundering offence Disclosure to a constable or a nominated officer. Particular requirements. but it is the essence which is important 23 .

How does POCA work? Disclosures made to a nominated person MLRO duties outlined 24 .

Hidden at the bottom: l l l ‘Para (c) repealed by Organised and International Crime Act 2010 s18’ Removal of defence of adequate consideration As a result of pressure from the IMF .Changes to POCA 2008 ¡ ¡ Table of Endnote References at p195 of POCA – candidate for ‘least helpful page of legislation’ award.

Forthcoming ¡ ¡ Moves to control digital currencies Recent proposal to amend section 140 – arrangement replaced with facilitation (Terrorist & other crime (Financial Restrictions) Bill 2013) ¡ Further discussion over adequate consideration defence 26 .

The even bigger picture .

deeper. not time limited ¡ Areas of likely impact: l l l l l Bribery as a predicate offence in a money laundering investigation Cash forfeiture Civil recovery orders Freezing orders Failing to disclose 28 .Wider.

Available guidance re bribery ¡ Manx government ¡ MoJ & SFO under UK provisions ¡ ¡ Transparency International website (Diagnosing Bribery Risk) FCA (UK) guidance 29 .

When do I need advice? ¡ If the police want to interview me ¡ If I am unsure about a disclosure ¡ If I am threatened with litigation ¡ If I suspect current criminal activity ¡ If I suspect past criminal conduct such as bribery 30 .