On 2 June 2021 the Crown Prosecution Service (CPS) issued revised guidance relating to its approach to the prosecution of the failure to disclose offence contained in section 330 of the Proceeds of Crime Act.
Critically, in a departure from its previous position with regard to the offence, the guidance now provides that going forwards it will not be necessary to prove that money laundering had been planned or undertaken.
"Therefore, it is possible to charge an individual under section 330 even though there is insufficient evidence to establish that money laundering was planned or has taken place. Section 330 therefore creates an obligation to report suspicions of money laundering to the authorities, regardless of whether money laundering actually takes place. This means that where individuals in the regulated sector receive information giving rise to a suspicion, or provides reasonable grounds for suspecting, that another is engaged in money laundering, an offence is committed by failing to make a report under section 330, regardless of whether it subsequently transpires that the money laundering cannot be proven, or that it did not occur."
Osborne Clarke comment
This change had not been flagged to, or anticipated by, either the financial services sector or the legal community. The offence has not previously been prosecuted on a regular basis and whether this change in guidance signals a more aggressive approach to enforcement remains to be seen. However, given the change, which is not retrospective in effect, the regulated sector should now have regard to the new guidance when considering the need to make any future disclosure and err on the side of caution if in any doubt, taking expert legal advice as and when necessary.