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What do the provisions of the Serious Crime Act 2015 (SCA 2015) tell us about the development of the regulatory environment in the UK? Daniel Hudson, partner at Herbert Smith Freehills, explores the key provisions of SCA 2015.
Serious Crime Act 2015, LNB News 04/03/2015 101
What are the key changes that will arise as a result of the coming into force of SCA 2015?
There are two principle changes of interest from a corporate crime perspective.
SCA 2015, s 3 makes an addition to the Proceeds of Crime Act 2002 (POCA 2002) to the effect that any party that makes a disclosure of money laundering and request for consent in good faith pursuant to POCA 2002, s 338 will be protected from civil liability. This protection doesn’t explicitly apply to disclosures that banks and other POCA 2002 regulated firms (which can include law firms) conducting transactional business are separately required to make when they have suspicions of money laundering. It’s going to be difficult, however, for any claimant to assert or prove conclusively that they had suffered any loss as a result of a mandatory money laundering disclosure.
SCA 2015 also creates a new offence of participating in the activities of an organised crime group. ‘Organised crime group’ is defined quite broadly, where three or more persons have as their purpose the carrying out of criminal activities. So, in principle, this offence could be triggered in relation to any activity that assists, enables or is participatory in, for example, a conspiracy to steal or commit a fraud involving three or more people. The reason why this is significant is because this offence has a slightly lower threshold in terms of mens rea. Ordinarily in criminal law, you have to prove that one knows that what one is doing is going to assist some offence whereas the test in this offence is effectively one of negligence. While the obligation on those in the POCA 2002 regulated sector to report money laundering under POCA 2002 is triggered at the point where the reporter has reasonable grounds for suspicion that someone has been involved in money laundering, under this new offence, we are dealing with the committing
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