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  3. Duties and responsibilities under the Proceeds of Crime Act 2002

Guidance

Duties and responsibilities under the Proceeds of Crime Act 2002

This advice explains how operators can make sure they and their employees comply with their obligations under The Proceeds of Crime Act 2002 (POCA).

Published
13 November 2020

Last updated
13 November 2020 - Changes

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  1. Contents
  2. Part 2 - The advice
  3. 9 - Prejudicing an investigation

9 - Prejudicing an investigation

Under section 342 (opens in a new tab) of POCA, a person commits an offence if they:

  • know or suspect that an appropriate officer or, in Scotland, a proper person is acting (or proposing to act) in connection with a confiscation investigation, a civil recovery investigation, a detained cash investigation or a money laundering investigation which is being or is about to be conducted, and
  • make a disclosure which is likely to prejudice the investigation, or
  • falsify, conceal, destroy or otherwise dispose of, or cause or permit the falsification, concealment, destruction or disposal of, documents which are relevant to the investigation (Section 342(1) (opens in a new tab) and (2) (opens in a new tab) of POCA).

It is, however, a defence if the person does not know or suspect that disclosure of the information is likely to prejudice the investigation, if the disclosure is made in compliance with other provisions of POCA or similar laws, or if the person does not know or suspect that the documents are relevant to the investigation or the person does not intend to conceal any facts disclosed by the documents (Section 342(3) (opens in a new tab) and (6) (opens in a new tab) POCA). The offence can be committed before or after a disclosure has been made.

Those working in the gambling sector should be aware of the provisions in relation to this offence. Reasonable enquiries of a customer, conducted in a tactful manner, regarding the background to a transaction or activity that is inconsistent with the normal pattern of activity should not result in the offence of prejudicing an investigation, unless you know or suspect that an investigation is current or impending and make the enquiries in a way that discloses those facts.

It is important to note that the offence of prejudicing an investigation is not the same as the ‘tipping off’ offence. The tipping off provisions are directed at the individual employed in the regulated sector (non-remote and remote casinos) who knows or suspects that a disclosure has been made, whereas the offence of prejudicing an investigation relates to any individual regarding the disclosure of the knowledge of the existence of an investigation which could prejudice the investigation.

Interaction with customers

Normal customer enquiries will not, in the Commission's view, amount to prejudicing an investigation under POCA, unless it is known or suspected that a SAR has already been submitted and that an investigation is current or impending and make the enquiries of the customer in a way that it discloses those facts. Indeed, such customer enquiries are likely to be necessary not only in relation to money laundering but also in connection with social responsibility duties (for example, problem gambling). In regard to this offence, counter or frontline staff may not be aware that the nominated officer has submitted a SAR to the NCA. Reasonable and tactful enquiries regarding the background to a transaction or activity that is inconsistent with the customer’s normal pattern of activity is good practice, forms an integral part of KYC measures (and may be driven by social responsibility concerns) and should not give rise to the prejudicing of an investigation.

If patterns of gambling lead to an increasing level of suspicion of money laundering, or even to actual knowledge of money laundering, operators should seriously consider whether they wish to allow the customer to continue using their gambling facilities. If an operator wishes to terminate a customer relationship, and provided this is handled sensitively, there will be low risk of prejudicing an investigation. However, if the decision has been made to terminate the relationship and there is a remaining suspicion of money laundering with funds to repatriate, consideration should be given to asking for a defence (appropriate consent).

In circumstances where a law enforcement agency requests an operator to continue trading with a customer as they conduct further investigations, the operator is advised to record the factors considered when agreeing or declining to do so (for example, the risks of participating in such activity, assurances provided by law enforcement, possible money laundering offences, relevant timescales provided, the gravity of the offences being investigated and the purpose of the request), and how this may change the management of risks to the licensing objectives. Given the operator’s heightened exposure to risk, it is advisable for the operator to ask for confirmation in writing of such requests from law enforcement. The operator should also continue to submit SARs and/or seek a defence (consent) from the NCA if they decide to continue with a business relationship with such customers.

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