A look at the offence of ‘tipping off’ and whether the Court of Appeal has missed an opportunity to offer wider guidance on this subject
| Published date | 01 February 2000 |
| Date | 01 February 2000 |
| Pages | 373-376 |
| DOI | https://doi.org/10.1108/eb027255 |
| Author | David de Ferrars |
| Subject Matter | Accounting & finance |
Journal of Money Laundering Control — Vol. 3 No. 4
The Court of Appeal Decision in C v S
A look at the offence of 'tipping off and whether the
Court of Appeal has missed an opportunity to
offer wider guidance on this subject
David de Ferrars
In the recent case of C v S,1 the Court of Appeal
offered guidance to the financial community on
how to meet a specific problem arising from
statutory provisions to prevent money laundering.
Considered here are the circumstances in which the
Court of Appeal felt it necessary to offer that
guidance, whether the guidelines are likely to achieve
the objective sought and whether an opportunity has
been missed to issue guidance on other aspects of the
money-laundering legislation.
THE BACKGROUND TO C V S
In June 1998, a bank ('the Bank') was served with a
Mareva or asset-freezing order obtained by a com-
pany (C), the claimant in proceedings against 12
defendants. C alleged S and the other defendants
had stolen monies from it. In addition to the asset-
freezing injunction, the order required the Bank to
give discovery to C within 14 days of documents
relating to bank accounts opened with it by one of
the defendants and alleged fraudsters ('the Discovery
Order').
The complications in this case arose because the
Bank had previously made money-laundering
reports under s. 93A(3) of the Criminal Justice Act
1988 (as amended) ('the Act') to the National
Criminal Intelligence Services (NCIS) relating to
the accounts in question. Sections 93A(1) and (2) of
the Act create offences where a person (including a
bank) assists another person in the retention, control
or transfer of proceeds of criminal conduct or uses
such proceeds to place funds or investments at that
other person's disposal. Section 93A(3) provides a
defence where the assisting party discloses his suspi-
cions or beliefs to the police authorities or intended
to do so but has a good reason for not doing so.
Knowing or suspecting that the monies in the
accounts in questions represented the proceeds of
criminal conduct, the Bank submitted reports to the
NCIS under s. 93A(3). Once a money-laundering
report had been submitted, the Bank then had to
avoid a tipping-off offence under s. 93D of the Act,
which section provides:
(1) A person is guilty of an offence if —
(a) he knows or suspects that a constable is
acting, or is proposing to act, in con-
nection with an investigation which is
being, or is about to be, conducted into
money laundering; and
(b) he discloses to any other person infor-
mation or any other matter which is
likely to prejudice that investigation, or
proposed investigation.
(2) A person is guilty of an offence if —
(a) he knows or suspects that a disclosure ('the
disclosure') has been made to a constable
under section 93A or 93B above; and
(b) he discloses to any other person infor-
mation or any other matter which is
likely to prejudice any investigation
which might be conducted following the
disclosure.
(3) A person is guilty of an offence if —
(a) he knows or suspects that a disclosure of
a kind mentioned in section 93A(5) or
93B(8) above ('the disclosure') has been
made; and
(b) he discloses to any person information or
any other matter which is likely to pre-
judice any investigation which might be
conducted following the disclosure.
(4) Nothing in subsections (1) to (3) above
makes it an offence for a professional legal
adviser to disclose any information or other
matter —
(a) to, or to a representative of, a client of
his in connection with the giving by the
adviser of legal advice to the client; or
Journal of Money Laundering Control
Vol.
3,
No.
4,
2000,
pp.
373-376
Henry Stewart Publications
ISSN 1365-5201
Page 373
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