Part 4: Confidentiality and the duty of disclosure (Sub‐group 4: Impact of the initiatives on other areas of the law)

DOIhttps://doi.org/10.1108/13685200310809572
Publication Date01 Jul 2003
Pages248-254
SubjectAccounting & finance
Journal of Money Laundering Control Ð Vol. 6 No. 3
Part 4
Con®dentiality and the Duty of Disclosure
Sub-group 4: Impact of the initiatives on other areas of the law
Introduction
In this part the consequences of the disclosure of
con®dential information are examined, in the light
of the provisions of ss. 19 and 20 of the Terrorism
and 38B are not examined here, as it is believed
that the comments on ss. 19 and 20 apply with
equal force to these new sections, even though the
wording of the new sections diers somewhat from
the wording of s. 19. Nor does this part examine
the relevance of the Human Rights Act 1998, the
relevance of property rights, or the relevance of pro-
fessional conduct rules. Finally, while this contribu-
tion to the report does address the circumstances in
which ss. 19 and 20 apply from the point in time
when a person forms a belief or suspicion that another
person has or may have committed an oence under
ss. 15 to 18 of the 2000 Act, it is not concerned with
the situation in which a person has failed to form a
belief or suspicion.
Criminal law
The statutory obligation
Subsections (1) and (2) of s. 19 provide that a
`person' commits an oence under the section if
that person does not `disclose' to a `constable' a
`belief or suspicion' that `another person' has com-
mitted `an oence' under any of the ss. 15 to 18
inclusive.
Section 19(1)(b) requires that the belief or suspicion
of a person as to the commission of an oence is to be
based on `information' which `comes to his attention'
in the course of `a trade, profession, business or
employment'.
Subsections (5) and (6) appear to exclude from the
ambit of the statutory oence (i) information
obtained by a `professional legal advisor' in `privi-
leged circumstances', and (ii) a belief or suspicion
formed by the professional legal advisor based on
such information.
Defences
Subsection (3) of s. 19 provides that a person who
can prove that he has a `reasonable excuse' for not
complying with s. 19(2) has a defence to any charge
under the section.
Subsection (4) of s. 19 provides a defence to an
employee who complies with his employer's `proce-
dure for the making of disclosures' required by the
section.
Penalties
Subsection (8) of s. 19 provides that a person who is
found guilty on indictment under s. 19 can be impri-
soned for up to ®ve years and ®ned, or can suer up
to ®ve years of imprisonment or a ®ne. The same
applies on summary conviction save that the period
of imprisonment must not exceed six months and
the ®ne must not exceed the statutory minimum.
Intermediate law
Permission
Section 20(1) of the Act provides that a person `may
disclose' to a `constable' his `suspicion or belief' that
any `money or other property' is, or is derived
from `terrorist property' and also `any matter' on
which `the' suspicion or belief is based.
Section 20(2) also permits a person to make a dis-
closure in the circumstances of s. 19 of the Act.
Where a person is an employee and his employer
has `a procedure for the making of disclosures'
under s. 19, the employee may disclose under that
procedure anything falling under the provisions of
subsection (1) and (2) of s. 20.
Civil law
Common law and equitable duties of
con®dence
An obligation of con®dentiality can arise under the
express or implied terms of a contract. An obligation
of con®dentiality can also arise otherwise than by
Page 248
Journalof Money Laundering Control
Vol.6, No. 3, 2003, pp. 248± 254
#HenryStewart Publications
ISSN1368-5201

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