0 Vanessa Shenton considers the downside of the loss of the professional legal adviser exception to tipping off


On 26 December last year the Home Office gave the profession a belated Christmas present by introducing amendments to (among other areas) the tipping off offence. Although the legislation introduces a variety of 'permitted disclosures', in reality the possibility of a solicitor disclosing to anyone outside the firm has been restricted even further.



Of particular concern is the loss of the professional legal adviser exception to tipping off. The downside of this loss can be seen from two quite different perspectives. First, the implications for a lay client wishing to obtain legal advice should he face a money laundering investigation. Second, the position of a regulated individual who, having made a suspicious activity report himself, needs legal advice because he is being sued by the client he reported.



Previously, under section 333(3) (a) and (b) of The Proceeds of Crime Act (2002) (POCA), a person would not commit a tipping off offence if he or she is a professional legal adviser and the disclosure is:



(a) to (or to a representative of) a client of the professional legal adviser in connection with the giving by the adviser of legal advice to the client; or



(b) to any person in connection with legal proceedings or contemplated legal proceedings.



In the previous Law Society practice note and the Law Society's response to the proposed changes, the importance of retaining the professional legal adviser exception from the lay client's point of view was explained by way of an example. A client who, on becoming aware that his bank has been in contact with the police, is entitled to seek advice. The solicitor should be able to advise the client that he may be subject to an investigation without committing an offence, even if this may prejudice any investigation.



Under the new section 333A this exception has been removed for the regulated sector, both in relation to tipping off offences under POCA and the new, similar offences under The Terrorism Act 2000.



A regulated person can now only disclose the fact that a suspicious activity report has been made or an investigation is being contemplated if the disclosure to the client 'is made for the purpose of dissuading the client from engaging in conduct amounting to an offence' (section 333D (2) (b) Amendment Regulations).



However, the overarching defence continues, so that a tipping off offence will not be committed if the person did not know or suspect that the disclosure is likely to prejudice an investigation. This may help in the majority of access-to-justice-type situations, as presumably the client who is being advised would have some inkling that an investigation had been or might be commenced.



Turning to the regulated person who himself needs legal advice because he is being sued by the client, the ramifications of the loss of the professional legal adviser exception are far more significant.



In the Court of Appeal case of K Ltd v National Westminster Bank Plc [2006] EWCA Civ 1039, the bank's suspicious activity report related to the customer's desire to enter into a cross-border transaction in relation to mobile telephones. Having formed a suspicion (subsequently transpiring to have been genuine, but incorrect), the bank told the customer that it was not able to honour the transaction and could not enter into further discussion. To do so would have been tipping off.



The customer applied for an injunction to force the bank to release the funds. The bank then instructed its own solicitors to write to the customer. The solicitors informed the customer that, following a suspicious activity report, consent had been refused. Did this offend the tipping off provisions?



The Serious Organised Crime Agency intervened in the hearing, during which the professional legal adviser exception to tipping off within 333(3) (a) and (b) was discussed. It was accepted that the bank had correctly followed the procedure. The bank had instructed professional legal advisers who had written to the customer 'in connection with legal proceedings or contemplated legal proceedings'.



From this perspective, the downside of the loss of the professional legal adviser exception must surely be of significant concern to all regulated persons, whether solicitors or not. What should a firm of solicitors do if their client were to take or threaten legal proceedings? It would appear that they would not be able to tell the client themselves about the suspicious activity report and the refusal of consent. Nor would they be able to instruct another firm of solicitors to write to the client to explain the position. Allowing the legal proceedings to continue and seeking directions from the court may be the only alternative. Surely this is not helpful from the point of view of either party.



The main reason why this is likely to be a problem is because of the current consent regime under which the regulated sector is required to freeze transactions pending consent. The Serious Organised Crime Agency can refuse consent within an initial seven-working-day period, whereupon a 31-day moratorium commences within which the agency can decide whether to commence an investigation. This is likely to be a period of some anxiety to clients and reporters alike.



In December last year, as well as introducing the above changes to the tipping off provisions, the Home Office also commenced a consultation on the consent regime generally. In the consultation document the Home Office refers to concerns from the regulated sector that 'they open themselves up to the possibility of legal action' and that it is not in practice possible to freeze a transaction without alerting the customer, 'which in turn could lead the body vulnerable to charges under POCA's tipping off provisions'.



Within its consultation paper the Home Office response to these concerns seems to be that they 'have been largely addressed by some helpful recent court rulings, notably the Squirrel case [a similar case involving mobile telephones, where suspicions were ultimately without basis] and K v NatWest'.



The consultation paper cites an extract from K v NatWest: 'The truth is that Parliament has struck a precise and workable balance of conflicting interests in the 2000 act'. Bearing this in mind, readers may find it odd that the Home Office, at the same time, introduced further restrictions to the tipping off provisions and a change which led to the abolition within the regulated sector of the professional legal adviser exception considered with the K v NatWest case.



Among other things, the Home Office consultation introduces the possibility of a 'pre-event notification' process running alongside the consent regime, but where there would be no obligation to freeze the transaction while awaiting consent. The Law Society has responded to the consultation urging a review of the consent regime.



Let us hope that the Law Society is successful in its negotiations.



Consultant Vanessa Shenton advises on money laundering issues as part of her business, The Compliance Partner