Edward Young Limited
Anti-Money Laundering and Terrorist Financing Policies, Controls and Procedures
Client Due Diligence
Criminal Conduct for the purposes of POCA
Conduct that constitutes an offence in any part of the UK or conduct outside of the UK that would constitute a criminal offence in the UK attracting a maximum sentence of more than 12 months' imprisonment.
Criminal Property for the purposes of POCA
Property that constitutes or represents a person’s benefit in whole or in part from criminal conduct whether directly or indirectly. All crimes are covered and there is no de minimis.
Enhanced Due Diligence
International Suspicious activity report to the Nominated Officer
Legal Sector Guidance
Legal Sector Affinity Group Anti-Money Laundering Guidance for the Legal Sector, dated 2022, including in particular Part 2 (c) which applies specifically to notaries.
The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (as amended)
National Crime Agency
Individual responsible for compliance with the MLR, also known as MLRO.
A politically exposed person, an individual who is entrusted with a prominent public function. Includes family members, known close associates of a PEP and PEPs in the UK.
The Proceeds of Crime Act 2002 (as amended)
Regular Due Diligence
Suspicious Activity Report to the NCA
Simplified Due Diligence
The Terrorism Act 2000
1.1 This policy contains the policies, controls and procedures we have adopted to comply with our obligations under the MLR.
2. Definition of money laundering and terrorist financing
2.1 Money laundering is the process through which the origin of the proceeds of crime is changed so that the proceeds appear to be legitimate.
2.2 Terrorist financing is providing or collecting funds to be used to carry out an act of terrorism.
3. The role of a Notary in the AML and CTF regime
3.1 A Notary Public is an independent legal professional for the purposes of the AML and CTF regimes.
3.2 As a firm of Notaries Public, we have obligations under the AML and CTF regimes to spot and report money laundering and terrorist financing. Failure to meet these obligations can lead to criminal penalties, substantial fines and damage to our reputation.
4. The stages of Money Laundering
Placement - placing criminal property into the financial system.
Layering - moving money that has been places in the financial system to obscure its origin.
Integration - the money ultimately reappears in the financial system as legitimate funds.
Our notarial practice is at greatest risk of becoming involved in the layering stage but could be involved in any stage.
5. Red Flags
5.1 We are alert to the warning signs of money laundering and terrorist financing and we are obliged to make the sort of enquiries that a reasonable person with the same qualifications, knowledge and experience as we would make.
5.2 Typical signs (Red Flags) of money laundering and terrorist financing can be:
5.2.1 obstructive or secretive clients.
5.2.2 clients who do not appear to be running the transaction.
5.2.3 corporate clients that we can’t find online or that use free email addresses.
5.2.4 clients who have unusual knowledge of the AML and CTF regime.
5.2.5 clients based a long way from us with no apparent reason for instructing us.
5.2.6 clients who provided false or stolen identification documentation.
5.2.7 clients or instructions involving high-risk third countries—which means a country that has been identified by the UK government as high risk. See https://www.gov.uk/government/publications/money-laundering-advisory-notice-high-risk-third-countries--2/hm-treasury-advisory-notice-high-risk-third-countriesUK
5.2.8 corporate clients with unusual or excessively complex structures.
5.2.9 long-term clients that start making requests that are out of character.
5.2.10 clients who request arrangements that do not make commercial sense.
5.2.11 client who have criminal associations.
5.2.12 instructions that change for no logical reason.
5.2.13 clients who want to pay us higher fees than usual.
5.2.14 clients who put us under pressure to meet them and witness their signature via video conference.
5.2.15 clients who put us under pressure to relax our usual identity verification procedures or to accept unusual documents in support of our verification when we do not feel comfortable to do so or it does not make sense.
5.2.16 Clients or parties to a transaction who appear on the UK Sanctions List or other UK Sanctions Regime. See https://docs.fcdo.gov.uk/docs/UK-Sanctions-List.html
6. Money laundering offences under POCA
6.1 The principal offences - Carry a maximum penalty of 14 years’ imprisonment, a fine or both.
6.1.1 POCA section 327
An offence is committed if someone conceals, disguises, converts, transfers, or removes from the UK criminal property. This includes concealing or disguising its nature, source, location, disposition, movement, or ownership or any rights with respect to it.
6.1.2 POCA section 328
An offence is committed if someone enters into or becomes concerned in an arrangement which they know or suspect facilitates the acquisition, retention, use or control of criminal property by or on behalf of another.
6.1.3 POCA section 329
An offence will be committed if someone acquires, uses, or has possession of criminal property.
6.2 The Regulated Sector Offence of Failure to Disclose
Failure by a staff member to make an ISAR to the Nominated Officer where they know or suspect money laundering is an offence which is punishable by up to five years’ imprisonment, a fine or both.
6.3 Tipping-off and prejudicing an investigation
6.3.1 An offence will be committed if someone discloses that they, or anyone else has made an ISAR to the Nominated Officer or a SAR to the NCA of information which came to them in the course of business, and that disclosure is likely to prejudice any i investigation that might be conducted.
6.3.2 The offence of prejudicing an investigation will be committed if someone discloses that an investigation is being contemplated or carried out and that disclosure is likely to prejudice that investigation.
7. Terrorist financing offences
7.1 The TA introduces offences similar to those contained in POCA, for example, the offences of use or possession or laundering money for terrorist purposes, becoming involved in an arrangement which you suspect can be used for terrorist purposes, and tipping-off. It also has a specific offence for fundraising for terrorist activities.
8.1 The MLR requires us to introduce policies, procedures and controls to combat money laundering and terrorist financing. They apply to notaries in relation to certain types of work only. Failure to comply with the MLR can carry a maximum penalty of two years' imprisonment, a fine or both.
9. Reporting suspicions - a SAR
9.1 POCA and TA impose obligations to report knowledge or suspicion of money laundering or terrorist financing by way of a SAR.
9.2 Knowledge and Suspicion
‘Knowledge’ under POCA means actual knowledge.
‘Suspicion’ is a possibility which is more than fanciful. A vague feeling of unease will not suffice. There is no requirement for the suspicion to be clear or firmly grounded on specific facts, but there must be a belief which is beyond mere speculation. The test for whether you hold a suspicion is generally subjective, but there is an objective element to the test, ie would a reasonable person, with the same knowledge, experience and information, have formed a suspicion.
9.3 After a SAR has been lodged with the NCA they have seven working days following receipt to decide whether to give consent. If they give consent, or do not refuse consent, we have a defence to a principal money laundering or terrorist financing offence so we can continue to act within the limits of the consent requested. If the NCA refuse consent they have a further 31 days to take action. If we hear nothing within this period, we are deemed to have consent. In exceptional circumstances the NCA may apply to court under the provisions of the Criminal Finance Act 2017 to extend the period for further 31-day periods, up to a maximum of 186 days over the original 31 days.
CDD and Procedures
10.1 CDD is required when we are instructed to act on the types of transaction listed in Regulation 12 of the MLR (which I have set out below in subclauses numbered 10.1.1 – 10.1.5) and the exemptions set out in the Legal Sector Guidance, in particular those set out in Part 2(c) do not apply:
10.1.1 The buying and selling of real property or business entities;
10.1.2 The managing of client money, securities or other assets;
10.1.3 The opening or management of bank, savings or securities accounts;
10.1.4 The organisation of contributions necessary for the creation, operation or management of companies;
10.1.5 The creation, operation or management of trusts, companies or similar structures.
10.2 The Legal Sector Guidance, which is approved by HM Treasury, states in Part 2(c) that the MLR do not apply to work undertaken by a notary acting solely as a public certifying officer where they have no substantive role in the underlying transaction. As such, the MLR do not apply to many aspects of our practice, including the taking of affidavits and declarations, protests, translating, certifying the execution of documents and authentication work in general. Although the MLR will not apply to work of that nature, as we offer notarial services, we are still subject to obligations under the Notaries Practice Rules and Code of Practice positively to identify intervening parties and to keep records of the means of identification employed. We will determine with each new instruction whether the MLR will apply and will undertake CDD as required.
10.3 There are four components of CDD:
10.3.1 identifying and verifying the client’s identity
10.3.2 identifying the beneficial owner where this is not the client
10.3.3 obtaining details of the purpose and intended nature of the business relationship
10.3.4 conducting ongoing monitoring of business relationships with our clients.
10.4 There are three levels of CDD:
10.4.1 simplified due diligence (SDD)
10.4.2 enhanced due diligence (EDD)
10.4.3 regular due diligence (RDD)
10.5 Beneficial owners
Where the client is beneficially owned by another person, we take reasonable measures to verify the identity of the beneficial owner so that we are satisfied that we know who they are, and if the beneficial owner is a trust, company, foundation or similar entity, we take reasonable measures to understand the ownership and control structure of that entity.
10.6 Person acting on the client’s behalf
Where a person is purporting to act on behalf of the client, we verify that they are authorised to act on the client’s behalf, identify them, and verify their identity on the basis of documents or information obtained from a reliable independent source.
10.7 We conduct CDD, if required:
10.7.1 when we establish a business relationship with a client
10.7.2 when we carry out an occasional transaction for a client
10.7.3 when we suspect money laundering or terrorist financing
10.7.4 when we doubt the authenticity or adequacy of documents or information previously obtained for the purposes of identification or verification
10.7.5 where the client has not been in regular contact for three years or more
10.7.6 in relation to existing clients, when their circumstances change.
10.8 We determine the extent of our CDD measures on a risk-sensitive basis, depending on the type of client, business relationship and the matter. We must also be able to demonstrate to the Faculty Office, our supervisory body, that the extent of our CDD measures are appropriate in view of the risks of money laundering and terrorist financing identified in our firm-wide risk assessment and as identified by the Faculty Office.
10.9 If we are not acting as a public certifying officer, ie we have a more substantive role in the underlying transaction, and the instructions fall within the list of transaction types set out in Regulation 12 of the MLR, we start by assessing the risk of money laundering or terrorist financing posed by the specific client and we decide the necessary level of CDD for the client itself.
10.10 We then go on to consider the risks associated with the business relationship, including the service, transaction, delivery channel risks, geographical risks and we take into account risks attached to certain sectors identified as being subject to an increased risk of corruption, for example, construction, mining and arms’ manufacturing.
10.11 We do not usually conduct the full CDD process for each new matter we open for an existing client. On those occasions, we consider the instructions we typically receive from the existing client and the type of work we’re being asked to do for the client in this instance. If the instructions have changed from the usual instructions we receive from that client, we start again from the beginning and re-assess the risk presented by the business relationship with that client.
10.12 Once we have completed our risk assessment, we decide what level of CDD to apply and what information and documentation we need from the client or from independent sources.
10.13 Sometimes clients are unable to provide standard verification documents, but if that is consistent with the client's profile and circumstances and we are not suspicious we consider accepting other forms of documentation from that client.
11. CDD records
If we are required to conduct CDD on a client, we keep a copy of our risk analysis form and the supporting records. The documents are retained in line with our document retention policy.
12. CDD - different levels of CDD
12.1 Simplified due diligence (SDD)
SDD is a downwards adjustment of the level of measures we take to comply with CDD requirements where the business relationship or transaction presents a low risk of money laundering or terrorist financing. We have to take into account our firm-wide risk assessment, information provided by the Faculty Office and the risk factors set out in the MLR.
12.2 Enhanced due diligence (EDD)
EDD is high-level measures required to mitigate the increased risk presented by certain clients and certain transactions. We apply EDD measures and enhanced ongoing monitoring in any case identified as presenting a high risk of money laundering or terrorist financing in our firm-wide risk assessment or by the Faculty Office, in any transaction with a person based in a high-risk third country, where the client is a PEP, where a client has provided false or stolen identification documentation and where we do not meet our client.
We use internet search engines to determine whether a client or its beneficial owner is a PEP.
For transactions involving PEPs we:
12.2.1 consider whether there are any warning signs of corruption,
12.2.2 consider whether there is any evidence that government or state funds are being used inappropriately
12.2.3 take adequate measures to establish the source of wealth and the source of funds which are involved in the proposed business relationship or transaction
12.2.4 conduct enhanced ongoing monitoring of that client
For all other (non-PEP) high-risk clients we:
12.2.5 as far as we can, examine the background and purpose of the transaction
12.2.6 increase ongoing monitoring
12.2.7 seek additional independent, reliable sources to verify information provided by the client
12.2.8 take additional measures to understand the background, ownership and financial situation of the client and other parties to the transaction
12.2.9 increase the monitoring of the business relationship.
12.2.10 Perform a search of the UK Sanction List to ensure the client or other parties mentioned in the transaction do not appear on a UK Sanctions Regime.
12.3 Regular due diligence (RDD)
We apply RDD when SDD and EDD are not appropriate.
13. CDD - beneficial owners
13.1 Where the client is beneficially owned by another person, we:
13.1.1 identify the beneficial owner (being anyone who directly or indirectly holds more than 25% of the share capital or voting rights of the entity) and take reasonable measures to verify their identity and if the beneficial owner is a trust, company, foundation or similar entity arrangement, take reasonable measures to understand the ownership and control structure of that entity.
13.1.2 We obtain at least their name and record any other identifying details which are readily available or ask our client for the information. We assess the verification we need, taking into account the client’s risk profile, any business structures involved and the proposed transaction.
14. CDD - source of funds
14.1 Scrutinising the source of funds is more than asking for the money to come from a bank account in the clients’ name. We focus on understanding how the client can legitimately fund the transaction.
14.1 If we have any concerns about the source of funds, we consider whether we need to submit a SAR.
15. Where we cannot conclude the CDD exercise
15.1.1 do not carry out a transaction through a bank account with the client or on their behalf
15.1.2 do not establish a business relationship or carry out an occasional transaction with the client
15.1.3 terminate any existing business relationship with the client
15.1.4 do not accept or return funds from the client or on the client’s behalf
15.1.5 consider whether we should submit a SAR to the NCA
16. CDD - Reliance
16.1 The MLR allow us to rely on a third party for the required CDD measures, however:
16.1.1 they are very specific about exactly who we can and cannot rely on
16.1.2 we remain liable for any failure in the third parties’ application of those measures
16.1.3 we are required to obtain from the third party all the information needed to satisfy CDD requirements and enter into written arrangements with that third party which enable us to obtain copies of any relevant documents and require the third party to retain those documents.
16.2 The provisions work both ways and we can be relied on by other companies to perform CDD measures on a mutual client. However, agreeing to reliance is a serious matter. Any such requests from other companies are considered carefully. In many instances, our client is not the same client as theirs in the transaction, and our position as a public certifying officer may mean that the MLR do not apply to our role in the transaction and we have not been obliged to collect the information required to satisfy CDD.
17. CDD - ongoing monitoring
17.1 Ongoing monitoring must be performed on all matters in order to detect unusual or suspicious transactions. We conduct ongoing monitoring by keeping in regular contact with our clients and we revisit the CDD we hold for them every three years.
18. Payment of fees and receipt of transaction funds from a third party
18.1 Where we cannot verify the source of the funds for a transaction or where there does not appear to be a legitimate reason for a third party to be paying, this may be a warning sign of money laundering or terrorist financing.
18.2 If the funds for a transaction or for our fees are coming from a third party, we check that the funds are coming from a legitimate source for legitimate reasons.
19. Cash payments
We have a policy of occasionally receiving cash payments from clients for our fees, subject to a maximum of £2,000. We note that payments of our legal fees are exempt from the provisions of the MLR as confirmed by HM Treasury in the Legal Sector Guidance.
20. Training and awareness
All relevant employees will be trained on the law relating to money laundering and terrorist financing at least every 2 years. All notaries in the practice will complete accredited training annually.
21. Monitoring and reviewing this policy
We will review these policies controls and procedures annually and more frequently if there are any major changes in the law or if there are changes in the nature of our practice which impact on this policy.