Part 5: Knowledge and suspicion under the Terrorism Act (Sub‐group 4: Impact of the initiatives on other areas of the law)

Date01 July 2003
Publication Date01 July 2003
SubjectAccounting & finance
Part 5
Knowledge and Suspicion under the Terrorism Act
Sub-group 4: Impact of the initiatives on other areas of the law
Schedule 2, Part 3 amends the Terrorism Act 2000
and inserts a new s. 21A into the 2000 Act, as follows:
(1) A person commits an oence if each of the
following three conditions is satis®ed.
(2) The ®rst condition is that he Ð
(a) knows or suspects, or
(b) has reasonable grounds for knowing or sus-
pecting, that another person has committed
an oence under any of sections 15 to 18
[ie of the 2000 Act].
(3) The second condition is that the information or
other matter Ð
(a) on which his knowledge or suspicion is
based, or
(b) which gives reasonable grounds for such
knowledge or suspicion, came to him in
the course of a business in the regulated
(4) The third condition is that he does not disclose
the information or other matter to a constable
or a nominated ocer as soon as is practicable
after it comes to him.
The intention of the new section is clearly to impose
an obligation of disclosure upon a person who, in the
course of his business in the regulated sector, knows or sus-
pects or has reasonable grounds for knowing or suspecting
that another person has committed an oence under
any of ss. 15± 19 of the 2000 Act. The obligation
represents a further statutory inroad into the (quali-
®ed) duty of con®dentiality owed by a bank to its
customer and is an illustration of the con¯ict that
can arise between the competing public interest in
the suppression of crime and private rights (a tension
that is touched upon by Lord Woolf in his judgment
in CvS[1999] 1 WLR 1551, 1555). Disclosure under
compulsion of law is one of the exceptions to the
duty of con®dence identi®ed in Tournier v National
Provincial and Union Bank of England [1924] 1KB
461, as has been discussed in Part 4.
The regulated sector is identi®ed in Schedule 3A,
Part 1 of the 2001 Act. The new section, by introdu-
cing an objective test without the requirement for
mens rea, represents (at least on the face of it) a signi®-
cant increase in the obligations of disclosure already
requires disclosure by a person who, on information
received by him in the course of his trade, profession,
business or employment, believes or suspects that
another person has committed an oence under
ss. 15± 18.
Once it is established that objective grounds existed
for knowing or suspecting an oence under ss. 15± 18
has been committed, criminal liability is imposed
subject only to:
disclosure to the police (eectively NCIS) as soon
as practicable; or
disclosure to a nominated ocer as soon as
practicable (in accordance with subsection 7); or
having a reasonable excuse for not disclosing the
information or other matter; or
being a legal adviser, and having received the
information in circumstances protected by privi-
lege (as further clari®ed by subsection 8) (privilege
is nonetheless not absolute).
vides that in deciding whether or not a person has
committed an oence the court must consider
whether a person followed any relevant guidance
which was at the relevant time:
(a) issued by a supervisory authority or any other
appropriate body,
(b) approved by the Treasury, and
(c) published in a manner it approved as appro priate
in its opinion to bring the guidance to the
attention of persons likely to be aected by it.
While disregard of guidance will aggravate an
oence under s. 21A, it seems reasonably clear that
compliance with relevant guidance is not sucient,
in itself, to establish a defence.
Page 255
Journal of Money Laundering Control Ð Vol. 6 No. 3
Journalof Money Laundering Control
Vol.6, No. 3, 2003, pp. 255± 260
#HenryStewart Publications

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