(1)A person commits an offence if [F1142the conditions in subsections (2) to (4) are satisfiedF1142] .
(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.
[F1143 (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 this Part by [F1144 the Director General of the National Crime AgencyF1144] ,
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 [F1145 or F1146... relevant professional adviserF1145] 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) [F1147 or (7B)F1147] applies to him.F1143]
(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.
[F1148 (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.F1148]
[[F1149,F1150 (7C)F1150] Nor does a person commit an offence under this section if—
(a)he knows, or believes on reasonable grounds, that the 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.F1149]
[F1151 (7D)Nor does a person commit an offence under this section if—
(a)the information or other matter mentioned in subsection (3) consists of or includes information that was obtained only in consequence of the carrying out of a status check under section 40 of the Immigration Act 2014 or an immigration check under section 40A of that Act or both, and
(b)but for the information so obtained the person would not have reasonable grounds for knowing or suspecting that another person is engaged in money laundering.F1151]
[F1152 (7E)Nor does a person commit an offence under this section if—
(a)the information or other matter mentioned in subsection (3) consists of or includes information that was obtained only in consequence of complying with an eligibility verification notice given to the person under paragraph 1(1) of Schedule 3B to the Social Security Administration Act 1992, and
(b)but for the information so obtained the person would not know or suspect, or have reasonable grounds for knowing or suspecting, that another person is engaged in money laundering.F1152]
(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 any 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)F1153is made in the course of the alleged offender’s employment ....
[F1154 (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[F1155 or F1156... relevant professional adviserF1155] ,
(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.F1154]
(10)Information or other matter comes to a professional legal adviser [F1157or F1158... relevant professional adviserF1157] 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.
[F1159 (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.F1159]
478.Section 330 replaces section 52 of the Drug Trafficking Act 1994 and creates an obligation to report suspicions of money laundering to the authorities. The equivalent provision in Scotland is section 39 of the Criminal Law (Consolidation)(Scotland) Act 1995 and in Northern Ireland is Article 44 of the Proceeds of Crime (Northern Ireland) Order 1996. Section 330 widens the scope of the offences that it replaces beyond reporting drug money laundering to reporting the laundering of the proceeds of any criminal conduct. Subsection (2)(b) introduces a negligence test which means that the failure to disclose offence would also be committed where a person has reasonable grounds for knowing or suspecting that another person is engaged in money laundering, even if they did not actually know or suspect.
479.The duty to report under section 330 is, however, restricted to those persons who receive information in the course of a business in the regulated sector, as defined in Schedule 9 to the Act. This definition closely follows equivalent provisions in the Money Laundering Regulations 1993 (as amended by the Financial Services and Markets Act 2000 (Consequential Amendments and Repeals) Order 2001), which determines the applicability of those Regulations. The definition provides that a business is in the regulated sector to the extent that it carries out the activities listed in Part 1 ofSchedule 9. The section reflects the fact that persons who are carrying out activities in the regulated sector should be expected to exercise a higher level of diligence in handling transactions than those employed in other businesses. Where a business carries out some activities which are listed in Schedule 9 and some which are not, then only employees carrying out the listed activities will be caught by the offence.
480.The offence is committed if the "required disclosure" is not made. The "required disclosure" is defined at subsection (5) as being a disclosure to a nominated officer, or to a person authorised by the Director General of the National Criminal Intelligence Service, which has been made in the form and manner (if any) prescribed under the order making power at section 339. This reflects the policy that disclosures in the regulated sector should be made directly to the National Criminal Intelligence Service (NCIS), rather than through a constable or a customs officer. It gives those in the regulated sector the choice of either disclosing direct to NCIS, which might be appropriate for sole practitioners, or disclosing to the nominated officer who will operate as a filter for disclosures to NCIS.
481.The maximum penalty for committing the offence, as set out at section 334, is 5 years imprisonment.
482.Subsection (6) provides a defence for a person who has a reasonable excuse for not disclosing the information and also for a lawyer, where the information came to him in privileged circumstances. There is also a defence for staff who have not had adequate training concerning the identification of transactions which may be indicative of money laundering. In order to use this defence successfully, the defendant would have to show that he did not actually know or suspect that another person was engaged in money laundering and that, in his case, his employer had not complied with requirements to provide employees with such training as is specified by the Secretary of State by order.
483.Guidance Notes on Money Laundering have been produced and issued since 1990 to regulated institutions by the industry’s Joint Money Laundering Steering Group, which operates under the auspices of the British Bankers’ Association. Section 330(8) recognises the potential value of such guidance and provides that the court must take any guidance issued by a supervisory authority (as listed in Part 2 of Schedule 6) or any other appropriate body (as defined at section 330(13)) into account when determining whether an offence has been committed. The court would only be obliged to take into account guidance, the content and manner of publication of which has been approved by the Treasury (in its capacity as the Government department which has overall lead responsibility for money laundering policy in the regulated sector). As at present, the industry itself will draw up relevant guidance, and it will be for the industry bodies to decide whether they wish to seek Treasury approval, and make use of this additional safeguard.
484.The scope of section 330 extends to inchoate offences such as conspiracy by reason of the definition of money laundering in section 340(11).