Now, I don’t like to blow my own trumpet, but have you noticed the spookily prescient nature of this blog in recent days? A mere week ago, I wrote about Vicky Pryce, and a scant fortnight before that I tackled the issue of reasonableness. And now the two subjects have been united by the dismissal of the jury in her trial for – among other things – not understanding the concept of “reasonable grounds”. Legal commentators are, as we speak, picking over the bones of the “weird questions” asked by the jury. The one about whether they could convict on the grounds of reasons not presented in court or supported by evidence was a hoot, and rightly deserving of derision. What on earth were they going to suggest? That she must be guilty because she looks a bit mean, or that anyone going out with Denis MacShane must be up to something? Or perhaps they were thinking of Ogden Nash and his view that “Women would rather be right than reasonable”.
But the whole saga does raise again this question of vocabulary. In the same way as common sense is actually not all that common, perhaps the idea of “reasonable” is not reliably consistent. Behaviour that I might consider reasonable – cycling all the way back into town because I have forgotten the Jaffa Cakes and are you mad of course a plain Rich Tea won’t do – could be seen by others as, frankly, a little unhinged. I don’t want to repeat what I said in that earlier post about reasonableness and the associated objective test of suspicion, but as you know the AML legislation, regulation and guidance (whatever your jurisdiction) is riddled with words open to varying interpretations: adequate, proportionate, appropriate, and even suspicion itself. And as ever, things are always much clearer with hindsight: what appears perfectly adequate, proportionate and appropriate at the time might not appear so under the critical eye of the prosecution barrister years later – just ask Michael Wigley.
I hate money laundering 
Hi Susan
I like your apt choice of phrase ……… “riddled with words open to varying interpretation” as, trying to justify concepts such as reasonable, proportionate etc is indeed a riddle.
As ever, I think it comes back to common sense and, if we are making important decisions where there is a legal and / or regulatory need to be reasonable / proportionate, the very trusty “file note” comes in handy.
Can we document a basic outline of the key facts and our resulting decision, together with a brief rationale of why we think a given approach is reasonable? Plus, are we happy that the document would stand up to some subsequent scrutiny? It is sometimes easy to justify something to ourselves, because we want something to go a certain way, but are we confident that others could understand that justification.
There won’t always be agreement on what the right decision should have been but keeping a clear note of the underlying thinking should hopefully help with any subsequent challenge.
Best Wishes
Graham
Hi Graham
You are absolutely on the money, as ever. I don’t think people (staff in general, rather than MLROs) quite realise the significance of the file note. I see it as the lines connecting the dots and filling in the story; it tells you who did what, when and – perhaps most crucially – why. With the best will in the world, you are not going to remember the nuances of a decision you made years ago, and without the contemporaneous file note, you are the mercy of any (usually detrimental) interpretation that comes along.
Best wishes from Susan