The Criminal Finances Bill is out, described in the Home Office press release as “legislation to tackle money laundering and corruption, recover the proceeds of crime and counter terrorist financing”. When it was at the consultation stage, I responded – of course! – and voiced my concern at the proposed changes to the UK’s consent regime. (Quick reminder: under UK legislation, you can submit a consent SAR to the NCA. This triggers a period of 7 working days, during which the NCA can say yes, no or nothing. If they say no or nothing, a further moratorium period of 31 calendar days is triggered, during which they can say yes, no or nothing – which is a tacit yes.) And I am sorry to say that – at this bill stage anyway – my worst fears have been realised.
Under the proposed new provisions in section nine of the bill, the NCA can apply for a court order to extend the moratorium period, and they can apply for further extensions, as long as the total extensions would not “extend the period by more than 186 days (in total) beginning with the day after the end of the 31 day period”. 186 days is 26.54 weeks, or about six months. Of course there are safeguards proposed: the court, before granting the order, must be satisfied that “an investigation is being carried out in relation to a relevant disclosure (but has not been completed), (b) the investigation is being conducted diligently and expeditiously, (c) further time is needed for conducting the investigation, and (d) it is reasonable in all the circumstances for the moratorium period to be extended”.
But still, pity the MLRO who might have to keep a customer sweet, dancing around very valid concerns about tipping off, for up to six months! And what about the customer, who may be trying to buy a house or close a deal or make a timely investment and finds his transaction put on hold for half a year. Surely we should be encouraging more speedy responses, not enabling such impractical delays – or perhaps it’s simply an admission that the NCA, as currently staffed and funded, cannot cope with the number of consent SARs it receives.