Give me a break

I struggle to think of many good things to come out of the pandemic apart from a fabulous recipe for squishy chocolate chip cookies that I unearthed in desperation after the closure of my usual source.  However, it has afforded us the opportunity to reassess the structure of our working day – in terms of both location and schedule.  Many companies have come to the realisation that having people sitting in an office from nine-ish to five-ish is not necessarily linked to productivity – and in many cases, is linked only adversely.  And alongside this realisation comes a renewed interest in understanding when and how people work best – i.e. most productively and most accurately.

In May this year, researchers in Cambridge University’s Department of Psychology published the results of their study into “Quantifying the cost of decision fatigue: suboptimal risk decisions in finance”.  Decision fatigue is the tiredness caused by having to make difficult decisions over a long period, and previous studies have shown that people suffering from decision fatigue tend to fall back on the “default decision” – i.e. choosing whatever option is easier or seems safer.  In this study, the researchers looked at the decisions made on 26,501 credit loan applications by thirty credit officers of a major bank over a month.  The officers were making decisions on “restructuring requests”, where the customer already has a loan but is having difficulties paying it back, so asks the bank to adjust the repayments; such decisions are considered cognitively demanding because credit officers have to weigh up the financial strength of the customer against risk factors that reduce the likelihood of repayment, and errors can be costly to the bank (approving the request results in a loss relative to the original payment plan, but if the restructuring succeeds, the loss is significantly smaller than if the loan is not repaid at all).  By studying decisions made at a bank, the researchers could calculate the economic cost of decision fatigue – and they found that the bank could have collected around an extra US$500,000 in loan repayments if all decisions had been made in the early morning.

Yes, the timing matters.  As Professor Simone Schnall, senior author of the report, explains: “Credit officers were more willing to make the difficult decision of granting a customer more lenient loan repayment terms in the morning, but by midday they showed decision fatigue and were less likely to agree to a loan restructuring request.  After lunchtime they probably felt more refreshed and were able to make better decisions again.”  This second finding suggests that regular breaks during working hours are important for maintaining high levels of performance.

So why am I bothering my AML-ish readers with this – however passingly interesting it may be?  Well, it occurs to me that much of the work done by a compliance team, and even more so by the MLRO, is “cognitively demanding”.  It’s not just tick-box stuff: you are reviewing SARs submitted by staff, judging the quality and implications of CDD material, constantly assessing and reassessing risk against a changing background – all higher brain function stuff.  And if you’re doing it at 4pm, shattered because you’ve missed your lunch-break again, well, it makes sense that your decisions are going to be affected.  Definitely food for thought – mine’s a squishy chocolate chip cookie, thanks.

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If money laundering were legal…

Well, I’m back, having spent a week in the Suffolk countryside, which encourages a slowing of the pace and a contemplating of the navel.  Just before I went away, a fellow AML enthusiast called Dev Odedra posed this question in response to one of my posts: if money laundering were legal, how many financial institutions would allow their customers to do it?  And I’ve been mulling.

I suppose what we’re considering here is whether morality should come into finance.  Money laundering is, after all, the mechanism by which criminals conceal the fact that their money is the proceeds of crime – so decriminalising that mechanism does not mean that the proceeds-generating crimes have not been committed in the first place.  If someone came to your bank or law firm or casino and said, “Look, I’ve made this money by defrauding little old ladies”, would you be prepared – indeed, happy – to take that money and make your profit from it?  (Of course, you wouldn’t be the MLRO at that point; if money laundering is legal, there’s no need for reporting and therefore the MLRO is redundant.  Rather, you’re simply a fee-earner or equivalent in your firm.)  Would it depend on the crime they admitted to – you’re sanguine about drug trafficking, for instance, but you do draw the line at selling pornographic images of children.  Would it matter to you whether the crime was committed in your own community or somewhere more distant?  Would it come down to how profitable the business would be for you?  And what if they didn’t admit to anything at all, but you had your suspicions…

It wouldn’t be the first time that we’ve had to consider the moral dimension of money: we’re all familiar with the tax evasion / tax avoidance / tax efficiency scenario.  The first is illegal almost everywhere and so the situation is simple – you can’t take the proceeds – but I know of several MLROs who are slightly queasy when it comes to tax avoidance, and even some who feel that tax efficiency is just a juicy rationalisation for avoidance.

Personally, I am grateful that money laundering is a crime, and not just because it has provided me with a fascinating career in AML.  People who make a great deal of money from crime can be rather, well, unpleasant and threatening, and I am glad to have the law to back me up when I want to turn them and their money away.  In the same way as I don’t like to see litter in the countryside, because it spoils the view for everyone, I don’t like criminal money contaminating the financial system, because it makes everyone’s assets seem more grubby.  But that’s just my rather po-faced view.  What do you think: if money laundering were legal, how many financial institutions would allow their customers to do it?

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A new chapter for financial crime

When you live in a country with a Prime Minister who is alleged to have said in April 2021 that he would rather see “bodies pile high in their thousands” than order a third lockdown, and who now confirms that “we will move away from legal restrictions and allow people to make their own informed decisions about how to manage the virus”, you quickly learn that one man’s risk-based approach is another man’s free-for-all.  And whether you are looking at a virus or at money laundering, the same balance is being examined: profit versus safety.

That may sound over-dramatic and not a little prim and preachy, but it’s true: for most people, the only thing that puts a brake on the amount of AML we do is how much it costs.  Most front-office staff are not opposed to AML in principle; rather, they resent the time it takes away from fee-earning endeavour.  And what gives MLROs and compliance departments the muscle they need to counter-balance the profit motive is evidence that there is bad money out there and that, with no AML, it will flood into our institutions and contaminate our societies.

God forbid, then, that these MLROs turn with any hope at all to the latest thoughts on the matter from HM Treasury.  Given that one of HMT’s priorities (albeit the last on a list of eight) is “improving regulation of the financial sector to protect customers and the economy”, you might expect them to address this idea of protection in their high-level documents.  On 1 July 2021 they published “A new chapter for financial services” – a 21-page document setting out HMG’s plans for achieving the Chancellor’s “vision for an open, green, and technologically advanced financial services sector… that is globally competitive and acts in the interests of communities and citizens, creating jobs, supporting businesses, and powering growth across the UK”.  I’ve done a bit of searching:

  • The word “regulation” appears 17 times – twice we have “robust regulation”, twice we have “agile regulation” and once we have “appropriate regulation”
  • “Competitive” appears 16 times, and “leading”/”leader”/”leadership” 24 times
  • “Protect”/“protection” appears six times – twice talking about protecting access to cash
  • “Crime” does not appear at all – nor “laundering”, “fraud”, “corruption” or “abuse”

Of course I realise that this document is part Party Political Broadcast and part international advert, but its authors obviously feel that neither of those audiences is going to be impressed by any attempt to tackle financial crime or drive it from our borders.  And – sadly – I am quite sure they are right.

Please note that my indignation and I are on holiday next week – normal blogging service will resume on Wednesday 21 July.

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Physician, heal thyself

I ride a tandem and I sit on the back (that’s the stoker – the one on the front is the pilot).  And every – but every – time we go out, someone will yell at my pilot husband, “She’s not pedalling!”.  Having worked in AML for an awfully long time, I can report a similar pattern of familiar humour: regularly someone will suggest that with all my knowledge, I should retire from the AML game and become a money launderer to make some serious dosh.  “I bet you know all the tricks,” they say – and to a certain extent, they’re right.  After all, isn’t that the driving force behind the phenomenon of the professional enabler – the person who works within the regulated sector but serves the forces of evil by facilitating money laundering for clients?  If someone knows all the AML measures put in place, they also know how to sidestep them and avoid triggering any undue interest or – heaven forfend – actual suspicion.

And so it is with great sadness but a sense of inevitability that I read of the conviction of Dominic Thorncroft for money laundering.  Mr Thorncroft was for many years the Chair of the Association of UK Payment Institutions, which “represents Payment Institutions [e.g. money remitters, bureaux de change] regulated by the Financial Conduct Authority”.  One of his responsibilities in that role was AML on behalf of the members: to make sure that AML obligations were clearly explained to members by the authorities, with appropriate guidance offered, and then to make sure that members took advantage of all available services to do their AML stuff properly.  And in this he seemed to do well; when that huge laundering case involving bureaux de change and a black cab repair firm in Paddington hit the headlines, Mr Thorncroft held the feet of HMRC to the fire, saying that they had not served their regulated community well or been tough enough on them: “The money laundering regulations are not as precise as they should be.  We highlighted this case to HMRC a year ago but they have not changed or amended their guidance at all.  We think you should be able to document every penny, regardless of your status.  There should be some obligation to understand what the money relates to.”

It is all the more surprising, then, that Mr Thorncroft should now be caught in a web of his own devising.  On 23 June 2021 he was found guilty of laundering £850,000 of fraudulent proceeds through his own money service bureau, to recipients in Hong Kong and China.  He did not commit the fraud himself, but “despite his substantial knowledge and expertise of money laundering, [he] failed to alert the authorities to the suspicious activity and allowed it to continue”.  It’s that pesky objective test of suspicion again: if you “hold [your]self out as a money laundering expert”, you can expect the court to take the view that you would and should spot suspicious transfers.  When I am training MLROs, I always warn them that they will be held to the very highest standards when it comes to the objective test of suspicion, but I’m wrong – it’s me!  We AML smartypants will be judged most harshly. To go all Biblical again, if you live by the AML sword, you can die by it too.

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Grey clouds are gathering

I want to talk about the FATF.  First, I think it’s called the “eff-ay-tee-eff” – not “fat-fee” or (occasionally) “faft”.  And second, I’m interested in the significance of their grey list (officially, their list of jurisdictions under increased monitoring).  Not the contents of the list – plenty of others have written about who should be on the list and who shouldn’t – but the significance of it.  If you turn to the source of it all – the FATF itself – you can read this: “The FATF does not call for the application of enhanced due diligence measures to be applied to these jurisdictions [as it does for those on the really naughty list], but encourages its members to take into account the information presented below in their risk analysis.” (Note that this link will be updated very soon – they’re meeting as we speak.)

So what does this mean?  It does not mean that governments (and, by extension, regulated entities) must apply EDD to all business associated with those jurisdictions, but rather that a jurisdiction’s presence on this list must inform any risk analysis of that jurisdiction (and, by extension, clients associated with it).  However, as the FATF requirements can be viewed as a starting point – i.e. you can go beyond them, as long as you encompass them – I know of many MLROs who deem it simpler (and safer) to apply EDD to all jurisdictions on both FATF lists.  But if you wanted to do it the other way and, as required by the FATF, “take into account the information presented in [your] risk analysis”, what would this look like?  Well, grab a Twix and let’s work through an example: Nicaragua.

The FATF grey list currently says this about Nicaragua: “Nicaragua should continue to work on implementing its action plan to address its strategic deficiencies, including by: (1) finalising the updating of the NRA to develop a more comprehensive understanding of its ML/TF risk; (2) conducting effective risk-based supervision; (3) taking appropriate measures to prevent legal persons and arrangements from being misused for criminal purposes.”  From this I deduce that the issues the FATF has with Nicaragua’s AML/CFT regime are these:

  • its NRA is insufficiently robust and needs updating
  • its AML/CFT supervisory regime is not using a risk-based approach
  • Nicaraguan companies and trusts are being used for money laundering and/or terrorist financing.

And how relevant this is to you will depend on what business you do with Nicaraguan individuals and entities.  If you are entering into a business partnership with a regulated business in Nicaragua that has based its in-house business risk assessment on the NRA (which is not good enough) and is supervised in Nicaragua for AML/CFT purposes (by a poor supervisor), then you would be wise to do your own due diligence on the business and not rely on what it has said in its own BRA, or place any faith in its being approved by its supervisor.  If, on the other hands, you are concerned about Nicaraguan clients, then it’s the third point that is of most concern.  You would need to show that your AML/CFT procedures will require your staff to be extra careful about accepting money coming from or going to a Nicaraguan company or trust (or beneficial owner of one), as we have been told that they are routinely being used “misused for criminal purposes”.  So SOF/SOW checks will be extra important, as will checks into beneficial ownership.

You can see why some MLROs might take the “EDD for all” approach – but does this lay them open to charges of not applying a true risk-based approach, and perhaps even something akin to de-risking?  Whoever said that making lists was easy?

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Just do it

Sportswear and I rarely coincide, but I am a fan of the slogan “Just do it”.  Years ago a much-respected older friend gave me his top tip for efficiency: if you think of a job that needs doing and it will take you less than fifteen minutes, just do it – putting it on a list and then remembering it and then forgetting it again and repeatedly fretting about it will take much longer in the end.  But it seems that we are suffering from a dearth of people who will simply knuckle down and do their job properly.

Recently I spotted an article in an Australian newspaper about the situation at NAB, currently being looked at by AUSTRAC (the Australian FIU).  On 4 June 2021 AUSTRAC sent a letter to NAB warning them of “potential serious and ongoing non-compliance” with customer identification procedures, ongoing customer due diligence and compliance with AML/CFT requirements, and saying that these concerns have been referred to AUSTRAC’s enforcement team.  According to the article in The Age, former workers at NAB say that the bank is “using contractors in fraud, sanctions and anti-money laundering roles”.  Of course, there is nothing wrong with contractors per se – indeed, many businesses would not survive without them.  But it is crucial – particularly in roles such as these, at the forefront of AML/CFT – that even the most casual of workers is given appropriate training.  And according to the article, “many former casual NAB workers said they received little or no formal training when they joined the bank’s financial crime team”.

Unsurprisingly, I think that AML/CFT training is vital for all staff, at some level – after all, every single person can do something to protect their institution.  But those who work in financial crime prevention in any capacity should receive detailed, specific training – and certainly not the ad hoc “sitting beside someone and listening into their calls” variety mentioned in the NAB situation.  Here in the UK, the training obligation applies to “relevant employees”, and the definition of that (Regulation 24) makes no distinction between full-time or part-time, formal or casual, employee or consultant.  For the firm, it’s a legal obligation.  For the MLRO, it’s a case of having the right people capable of doing the right work.  And for the member of staff, it would be madness to take on such responsibility without the training.  So, once again, just do it.

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Wolves crying wolf

I’m a bit wary of wading into this topic, as I am something of a dunce when it comes to working out political affiliations and machinations – even after watching a gazillion series of “The West Wing”, I’m still not sure who were the goodies, the genuine goodies, the baddies, the ersatz baddies, and the office cleaners (and the office “cleaners”).  But I have noticed in recent months a tendency for accusations of money laundering to be used in the political environment, as a method of making life awkward for someone and getting them out of the way for a while.  As I say, I’m not always convinced that I know what’s really going on in the political arena (who does?), but I am fairly sure that money laundering is not it – or at least, not the heart of it.

Last week, for instance, prosecutors in Nicaragua charged journalist Cristiana Chamorro with money laundering.  Cristiana is the daughter of former president Violeta Barrios de Chamorro – and has indicated that she will run against current president Daniel Ortega in November.  In late May, police raided the offices of the Violeta Barrios de Chamorro Foundation for Reconciliation and Democracy and the offices of the independent news outlet run by Cristiana’s brother Carlos Fernando Chamorro.  And now the Nicaraguan government has said that Chamorro is under investigation for alleged financial irregularities and money laundering related to the foundation; she contends that the accusations are Ortega’s attempt to keep her out of the presidential race.

Journalists are of course frequent targets for regimes that do not value openness and transparency.  In December 2020 Ugandan journalist Nicholas Opio was arrested and charged with money laundering and has been held in prison since then.  It is suspected by many that the charges are politically motivated – to get Opio out of the way – because of his support for opposition leader and presidential candidate Robert Kyagulanyi, known as Bobi Wine.  Friends say that at the time of his arrest, Opio was working on collecting evidence surrounding fifty-six killings and multiple arrests that occurred after protests in November 2020 sparked by the arrest of Wine.

Now, as you can imagine, this annoys me.  Money laundering is a serious and destructive crime, and devaluing it like this – bandying around accusations with no foundation beyond “it’s a handy way to hobble this person who, like everyone, uses money” – is infuriating for those of us dedicated to preventing and punishing real money laundering.  Remember the frustration attending Operation Yewtree (a UK police investigation into sexual abuse of children by celebrities and others), when people worried that having high-profile accusations which did not lead to a conviction would result in future reports of abuse being taken less seriously?  Enormous damage can be done to real investigations into real crimes if politically-motivated pressure is brought to bear on the prosecutorial authorities.  It’s another – as if we needed another – dangerous outcome of corruption, and we must resist it with every ounce of our strength.  Here endeth the rant.

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Lifelong learning

At the start of my working life, I did a self-assessment questionnaire which indicated that my strengths lay in keeping myself to myself (a team worker I ain’t) and in learning more and more about less and less – in other words, I should be an expert.  The word has become devalued (a has-been under pressure, etc.) but the etymology holds true: it is from the Latin experitus, meaning tried, proved, known by experience.  And for nearly thirty years I have concentrated on developing my experience of one subject: AML.  When I first told people of my plans, several counselled against it.  Money laundering is a fashionable bugbear, they said: it will be solved, or people will stop worrying about it, and then you’ll be out of work.  Broaden your reach, they advised: offer training in all the financial crimes and not just money laundering.  I ignored them – not because I knew my market so well, but because all other financial crimes seem so ordinary and dull when compared to money laundering.

And it turns out that my advisers couldn’t have been more wrong – but then so was I.  They were wrong in thinking that money laundering would fade from view, and I was wrong in thinking that I could master AML.  Sure, I think about it all day, most days – and I know the requirements in worrying detail (who knew that one day I too would be quoting sections of legislation as though to the gavel born).  But wow, is money laundering growing complicated and specialist.  I feel I could spend another ten years getting to grips with trade-based money laundering, and then ten more for cyber-laundering.  You remember when your grandma looked at you with astonishment when you programmed the VCR for her?  I get the same look on my face when someone talks to me about crypto-tumblers and DeFi.

So what is an MLRO to do?  Three things:

  • Don’t panic – no-one can expect you to understand every aspect of every form of money laundering
  • Subscribe (often for free) to good, reliable, reputable sources of information – for instance, the executive summaries of FATF typologies reports are invaluable ‘idiot’s guides’ to current money laundering hot topics
  • Enlist the help of the right experts – no, not me, I’m talking about the 18-year old in your IT department who knows everything about crypto.

From a personal perspective, I’m delighted with my career choice – I can’t imagine anything worse than feeling stale, or anything better than working in a subject that keeps stretching the brain cells.

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A nose for trouble

My usual watchwords for this blog are (in ascending order of emotion) “disappointment”, “indignation” and “outrage”.  But this week it is “awwwww”, because it’s all about a litter of cuddly, snuggly puppies.  Last week the Metropolitan Police’s Dog Training Establishment took delivery (groan!) of a litter of seven German Shepherd puppies – the offspring of two working police dogs, so born into the family business.  They are being referred to as the “Ratana litter” in tribute to Sergeant Matt Ratana, who was shot and killed at Croydon Custody Centre in September 2020 as he prepared to search a handcuffed suspect.  All the puppies bear names that refer to Sergeant Ratana and his New Zealand heritage, and their initial training will include tracking human scent, helping to find suspects, and locating guns and knives.  However – and well done for bearing with the story this far – some of them will be trained as cash-sniffer dogs.  And – here’s the best bit – their training is being funded by confiscated proceeds of crime.

In the year to April 2021, cash-sniffer dogs helped the Met Police to recover a total of £47.2 million in notes and coins (up 150% from an already impressive £18.4 million in the previous year).  A spaniel named Millie sniffed out £80,000 during a house search and then led her handler around the property again and indicated a point of interest in the bathroom – when officers took the loo apart, they found a further £185,000 stashed behind the cistern.

Police believe that criminals are currently even more flush (double groan!) with cash at the moment: businesses that would traditionally handle large amounts of cash were closed during the pandemic, and there were fewer opportunities to travel to move money abroad.  Once any identifiable victims have been reimbursed, the residue of any seized cash is distributed to law enforcement agencies across the country.  And the Met is spending theirs on more doggy noses.

Detective Chief Inspector Tim Wright, from the Met’s Central Specialist Crime Command, said: “Our investment in training these new puppies as cash seizure dogs will help us to find cash that is hidden in secret compartments, known as hides, in vehicles and homes – making our work quicker and more effective.  Cutting off the cash flow that is generated by criminality and ill-gotten gains not only helps to tackle violent crime but it also helps to fund extra policing resources.”  Every dog does indeed have its day.

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The wagers of sin

What do Ben Affleck and Jennifer Tilly have in common?  If you said that they were once in a relationship, that’s the wrong Jennifer – Ben was married to Jennifer Garner and engaged to Jennifer Lopez (creating the social media monster known as “Bennifer”).  No, what they have in common is that they are both actors and professional poker players – and given the need for that famous poker face, perhaps acting is good prep for life as a professional gambler.  I mention all this partly to make sure you’re up to date with Tinseltown tittle-tattle [hot news: Ben and Jen Lopez are dating again – it’s Bennifer 2.0] but mainly as an excuse to talk about source of funds and source of wealth.

One of the most common answers to the question “where is your money from?”  (which, however you dress it up, is the essence of all source of funds and source of wealth enquiries) is: it’s from my job.  I earned it, I saved it and now I’m bringing it to you.  If your client has an ordinary sort of job, that’s easy: you ask for a recent payslip or two, and – if you’re unsure of the ball-park – do a job search in the same sector to make sure that the salary they claim is credible.  But what if they have a more unusual job?  (I was recently refused a bank account on the basis that my job – anti-money laundering consultant – sounded dodgy.  So I was turned down by the very thing I live to promote.  Oh the irony.)  And one of the more unusual jobs that is growing in popularity is that of professional gambler.

I don’t mean someone who is addicted to gambling and spends every waking minute and every last penny on it, in an uncontrolled manner.  I’m talking about people who do it as a serious job – and with the explosion in online gambling, their numbers are growing.  Thankfully, with professionalisation has come record-keeping – music to the ears of anyone engaged in CDD checks.  A quick perusal of the Cardplayer.com website, for instance, reveals a comprehensive listing of all major poker tournaments.  Once the tournament has finished, you can click through to see the results – the names of the winners, and the amount they won.  If the tournament has yet to happen, the details for each competition within the tournament include the buy-in – the dues each player pays to take part, which are then put into a prize pool to pay the tournament winners.  In short, you can find out how much it costs to enter, and who won how much at the end of it all.  And *rabbit-hole alert* you can then go to the Global Poker Index to find out about individual players: each profile shows nationality, residence, recent winnings and professional career total winnings, plus a photo.  In case you’re wondering, Ben Affleck has won a career total of US$360,400, which should just about pay for a new handbag for La Lopez.

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