SAR’s

The Court of Appeal in London ruled on 13 October that HSBC Private Bank did not have to disclose the identity of employees who had made internal reports which had led to suspicious activity reports (“SARs”) being filed with the authorities unless there was a firm suggestion on bad faith on their part.

The judgment is the result of satellite litigation arising from the more famous 2010 case of Shah v HSBC, in which the Court of Appeal ruled that parties which had suffered loss as a result of SARs being filed were entitled to demand proof from the regulated institution responsible that the suspicion on which the SAR was founded existed.

I have just attended the 8th annual conference of IMLPO where two of the key speakers, Edward Garnier QC MP, Solicitor General and Hugh Burns, Head of Financial Crime Team HM Treasury, gave interesting updates to both the international and UK regimes and a time table for new changes.

It is Business Tax Centre’s understanding that SAR’s are an individual’s obligations covered under the Proceeds of Crime Act and not covered under the Money Laundering Regulations which covers a ‘Firms’ obligations to put into place appropriate policies and procedures for the prevention, detection and reporting of suspicious activity, and not the actual SAR itself which has a subjective test and offences which are covered in PoCA.

A SAR should be made as soon as the knowledge or suspicion that criminal proceeds exist has arisen, especially if consent may be required, or at the earliest opportunity thereafter.

The Serious Crime Act 2007 extends the Civil Recovery and Taxation powers of the Assets Recovery Agency to SOCA and, also, the Civil Recovery powers to the major prosecuting bodies. This is a significant step towards mainstreaming the powers across law enforcement agencies. The Act also provided for the merger of ARA and SOCA, with the effect that from 1st April 2008, SOCA will undertake civil recovery and tax investigations in England and Wales and Northern Ireland.