The Criminal Finances ACT 2017

317 Pages·2018·2.781 MB·English

by  Jonathan Fisher, Anita Clifford

THE CRIMINAL FINANCES ACT 2017

THE CRIMINAL FINANCES
ACT 2017
JONATHAN FISHER QC
ANITA CLIFFORD
First published 2019
by Informa Law from Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Informa Law from Routledge
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Informa Law from Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2019 Jonathan Fisher QC and Anita Clifford
The right of Jonathan Fisher QC and Anita Clifford to be identified as authors of this work has been
asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any
electronic, mechanical, or other means, now known or hereafter invented, including photocopying and
recording, or in any information storage or retrieval system, without permission in writing from the
publishers.
Whilst every effort has been made to ensure that the information contained in this book is correct, neither
the author nor Informa Law can accept any responsibility for any errors or omissions or any consequences
arising therefrom.
Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used
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British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Names: Fisher, Jonathan, 1958– author. | Clifford, Anita, author.
Title: The Criminal Finances Act 2017 / by Jonathan Fisher QC and Anita Clifford.
Description: Abingdon, Oxon; New York, NY: Informa Law from Routledge, 2019.
Identifiers: LCCN 2018033286 | ISBN 9781138483774 (hbk) | ISBN 9781351053969 (ebk)
Subjects: LCSH: Great Britain. Criminal Finances Act 2017. | Forfeiture—Great Britain. | Money
laundering—Law and legislation—Great Britain. | Crime—Finance—Law and legislation—Great Britain.
Classification: LCC KD8460. F57 2019 | DDC 345.41/0268—dc23
LC record available at https://lccn.loc.gov/2018033286
ISBN: 978-1-138-48377-4 (hbk)
ISBN: 978-1-351-05396-9 (ebk)
Typeset in Times New Roman
by Apex CoVantage, LLC
CONTENTS
Table of cases xv
Table of legislation xvii
INTRODUCTION 1
CHAPTER 1 EXTENDING THE SAR MORATORIUM PERIOD 5
CHAPTER 2 MONEY LAUNDERING AND FURTHER INFORMATION
ORDERS 15
CHAPTER 3 MONEY LAUNDERING AND INFORMATION SHARING 21
CHAPTER 4 UNEXPLAINED WEALTH ORDERS 27
CHAPTER 5 CHALLENGING AND RESPONDING TO AN
UNEXPLAINED WEALTH ORDER 41
CHAPTER 6 SEARCH, SEIZURE, FORFEITURE AND ‘GROSS HUMAN
RIGHTS ABUSE’ 49
CHAPTER 7 TERRORIST FINANCING AND TERRORIST PROPERTY 57
CHAPTER 8 CORPORATE FACILITATION OF TAX
EVASION OFFENCES 73
CHAPTER 9 PROSECUTION AND THE REASONABLE PREVENTION
PROCEDURES DEFENCE 87
CONCLUSION 97
APPENDIX CRIMINAL FINANCES ACT 2017 99
Index 281
vv

DETAILED TABLE OF CONTENTS
Table of cases xv
Table of legislation xvii
INTRODUCTION 1
CHAPTER 1 EXTENDING THE SAR MORATORIUM PERIOD 5
Introduction 5
Criteria for making the order 7
Which court? 8
Who can apply? 8
Timing of application 8
Subsequent applications 9
Procedure – section 336B 9
Notice 9
Interested person 10
Specified information 10
Procedure – rules of court 11
The hearing 11
Application notice 11
Respondents’ notice 12
The order 12
Application to withhold specified information 12
Costs 13
Tipping off 13
CHAPTER 2 MONEY LAUNDERING AND FURTHER INFORMATION ORDERS 15
Introduction 15
The order 16
The application 16
Rules of court: procedure 17
Evidential status 17
Incriminatory evidence 17
Legally privileged material 18
Appeals 18
Non-compliance 18
vii
detailed table of contents
CHAPTER 3 MONEY LAUNDERING AND INFORMATION SHARING 21
Introduction 21
Voluntary disclosure 22
The conditions 22
Joint reporting 24
Impact on the duty to report 25
Confidentiality and privacy 25
CHAPTER 4 UNEXPLAINED WEALTH ORDERS 27
Introduction 27
Requirements 28
The respondent 29
Politically exposed person 29
Criminal suspects and connected persons 30
Companies 31
Holding property 32
Property held by a company or trust 32
Timing 33
Insufficient means to obtain property 33
Known sources of lawful income 33
Trusts 34
Market value 35
Effect of a UWO 35
Trustee respondents 35
Providing the explanation 36
Interim freezing 36
Non-compliance 36
Timing 37
Extra-territoriality 38
CHAPTER 5 CHALLENGING AND RESPONDING TO AN UNEXPLAINED
WEALTH ORDER 41
Introduction 41
Contentious areas 41
Challenging and varying an IFO 43
Costs 44
Responding to a UWO 44
Use of the explanation 46
Use of the new power 47
CHAPTER 6 SEARCH, SEIZURE, FORFEITURE AND ‘GROSS HUMAN
RIGHTS ABUSE’ 49
New powers to enforcement authorities 49
Serious Fraud Office 49
HM Revenue & Customs 50
Financial Conduct Authority 50
Immigration officers 51
viii
detailed table of contents
Offences 51
Civil cash and property forfeiture 51
Cash 51
Summary forfeiture of listed assets 52
Account freezing and forfeiture 53
Banks and building societies 53
Account freezing 54
Forfeiture 54
Expansion of ‘unlawful conduct’ 54
Gross human rights abuse or violation 55
CHAPTER 7 TERRORIST FINANCING AND TERRORIST PROPERTY 57
Introduction 57
Disclosure orders 58
Making the application 58
Terrorism 59
Terrorist property 59
Requirements to be satisfied 59
Relevant information 60
Written notice 60
Effect 61
Responding to a written notice 62
Legal privilege 62
Copies 62
Variation and discharge 62
Information sharing within the regulated sector 63
The conditions 64
Joint reporting 65
Impact on the duty to report 65
Confidentiality 65
Further information orders 66
The application 66
Condition 1 66
Condition 2 67
Effect 67
Appeals 67
Civil recovery of terrorist cash and property 67
Terrorist cash 68
Objections to administrative forfeiture 69
Application to set aside administrative forfeiture 69
Terrorist assets 69
Terrorist money in bank and building society accounts 70
Banks and building societies 70
Account freezing 70
Administrative forfeiture 71
Powers extended to financial investigators 71
Cross-border enforceability 71
ix