AML news

The Failure to Prevent Fraud offence was introduced in section 199 of the Economic Crime and Corporate Transparency Act 2023 (ECCTA). The Act provides that the Secretary of State must issue guidance about procedures before the provisions come into force. This guidance to organisations on the offence of failure to prevent fraud has now been issued (as  of 6 ,November 2024). The guidance states that the offence will come into effect nine months after the publication of this guidance, to allow organisations to develop and implement their fraud prevention procedures. A reminder of what the Failure to Prevent Fraud offence is. The legislation will apply to large organisations where an associate of the organisation commits any of the offences listed in schedule 13 of the ECCTA (for example, cheating the public revenue or false accounting) with the intention of benefitting the organisation and the organisation did not have in place reasonable fraud prevention procedures. The large organisations to which the legislation will apply align with the thresholds in the Companies Act 2006. In short, a large organisation is one satisfying two or more of the following conditions: turnover of more than £36 million; balance sheet total of more than £18 million; or more than 250 employees. Readers should be mindful that there are proposals to uplift the monetary thresholds under company law. This information is provided as resources and information only and nothing in these pages purports to provide professional advice or definitive legal interpretation(s) or opinion(s) on the applicable legislation or legal or other matters referred to in the pages. If the reader is in doubt on any matter in this complex area further legal or other advice must be obtained. While every reasonable care has been taken by the Institute in the preparation of these pages, we do not guarantee the accuracy or veracity of any resource, guidance, information or opinion, or the appropriateness, suitability or applicability of any practice or procedure contained therein. The Institute is not responsible for any errors or omissions or for the results obtained from the use of the resources or information contained in these pages.  

Introduction Readers will know that sanctions are adopted at EU level but may or may not be aware that enforcement relies on member states amongst which definitions of sanctions violation and associated penalties vary. These inconsistencies led to a concern in the EU about undermining of the EU sanctions regime and that potential offenders would deliberately act in jurisdictions where penalties were lighter. Click here for a briefing document by the EU Parliament which wrote ”…The significant differences between national systems, particularly in terms of offences and penalties for breaches of EU sanctions, are thought to weaken their efficacy and the EU's credibility….”  On 24 April 2024 the European Union adopted a directive to harmonise criminal offences for violation of EU sanctions. (the “Directive”). Click here for a link to a European Parliament press release on the Directive. The Directive was introduced to limit sanctions circumvention and to tighten enforcement. The Directive provides a common definition of what constitutes a violation of EU sanctions and provides for penalties for the violation of European Union restrictive measures. The Directive provides for criminalisation for an intentional violation of sanctions but also where there is serious negligence in the circumstances set out in the Directive. It also criminalises attempted violations. What constitutes a criminal offence and exemptions? Article 3 sets out conduct constituting a criminal offence. These include failing to freeze funds, not respecting travel bans or goods embargoes, transferring funds to persons subject to sanctions, or doing business with state-owned entities of countries under sanction. Providing financial services in violation of sanctions will also become a punishable offence. Inciting, aiding, or abetting the commission of offences is also a criminal offence. Member states can exempt conduct from criminal sanction for violations involving funds, economic resources, goods, services, transactions, or activities of a value of less than €10,000.  An exemption is also given for legal professionals regarding information obtained while ascertaining the legal position of a client or defending or representing judicial proceedings. There is also an exemption for providing humanitarian assistance. Penalties The Directive provides for prison sentences and fines. It also includes measures such as withdrawal of permits and authorisations, disqualifications, and temporary bans on running for public office. For natural persons penalties can be between one and five years’ imprisonment depending on the seriousness of the offence. The Directive also provides for liability and penalties for legal persons. Maximum fines can be from 1% to 5% of worldwide turnover of a legal person, depending on the offence. Directive on combatting money laundering by criminal law (2018/1673) amended The definition of criminal activity is amended in this directive to add the violation of Union restrictive measures as a new criminal activity. Entry into force The Directive enters into force on 19 May 2024 and member states have until 20 May 2025 to implement it into national law. This information is provided as resources and information only and nothing in these pages purports to provide professional advice or definitive legal interpretation(s) or opinion(s) on the applicable legislation or legal or other matters referred to in the pages. If the reader is in doubt on any matter in this complex area further legal or other advice must be obtained. While every reasonable care has been taken by the Institute in the preparation of these pages, we do not guarantee the accuracy or veracity of any resource, guidance, information or opinion, or the appropriateness, suitability or applicability of any practice or procedure contained therein. The Institute is not responsible for any errors or omissions or for the results obtained from the use of the resources or information contained in these pages.  

The European Parliament has recently adopted a package of laws strengthening the EU’s toolkit to fight money-laundering and terrorist financing. The Anti-Money Laundering and Countering the Financing of Terrorism package consists of a directive and two regulations. These are the sixth Anti-Money Laundering directive, the EU “single rulebook” regulation and the Anti-Money Laundering Authority (AMLA) regulation. Click here for a press release from the European Parliament on the package and here to access the Institute’s dedicated pages on anti-money laundering which have recently been updated to include a page dedicated to European Union developments. We understand from the press release that the laws still need to be formally adopted by the European Council before publication in the EU’s Official Journal. There will also be a process of translation of text and the expectation is that publication of the text will occur in the Official Journal between July and September of 2024. This information is provided as resources and information only and nothing in these pages purports to provide professional advice or definitive legal interpretation(s) or opinion(s) on the applicable legislation or legal or other matters referred to in the pages. If the reader is in doubt on any matter in this complex area further legal or other advice must be obtained. While every reasonable care has been taken by the Institute in the preparation of these pages, we do not guarantee the accuracy or veracity of any resource, guidance, information or opinion, or the appropriateness, suitability or applicability of any practice or procedure contained therein. The Institute is not responsible for any errors or omissions or for the results obtained from the use of the resources or information contained in these pages.  

The Economic Crime and Corporate Transparency Act (ECCTA) received Royal Assent on 26 October 2023, and the provisions of the Act are starting to be applied. We have prepared an information booklet entitled The Economic Crime and Corporate Transparency Act 2023 – Changes in Companies House outlining the first set of changes introduced by Companies House on 4 March 2024.  These include: 1. new rules for registered office addresses; 2. a requirement for all companies to supply a registered email address; and 3. new lawful purpose statements The Act gives Companies House, along with the Registrar of Companies for Scotland and the Registrar of Companies for Northern Ireland, the power to play a more significant role in tackling economic crime and supporting economic growth. Over time, its measures will lead to improved transparency and more accurate and trusted information on its registers.  These changes will apply to incorporated entities, limited partnerships and limited liability partnerships. They will also apply to their members and directors. 

  In September 2023 the UK Financial Conduct Authority (FCA ) announced a review of the treatment of domestic Politically Exposed Persons (PEPs) by financial services firms. The review will look at firms’ arrangements for dealing with PEPs based in the UK and will report by the end of June 2024. In the previous month of August 2023 it invited UK PEPs to share their experiences, including any problems they or their family members have encountered with the PEPs regime. The FCA has previously (in 2017 ) published guidance for how financial services firms should treat customers who are politically exposed persons when meeting their anti-money laundering obligations.

The National Crime Agency in the UK has recently issued its April 2023 edition (Issue 19) of SARs IN ACTION. It contains items such as a summary of the 2022 SARs Annual Report (which can be accessed in full here), which features statistics covering the years 2020-21 and 2021-22, an article on modern slavery and human trafficking, and looks at SARs related to cryptocurrency and  trust or company service providers. It also has some information on the new SARs portal and on two new podcast episodes on Evolving Payments and Banking Firms and the UK Fraud Communications Toolkit.