Accountants and the Proceeds of Crime Act Presented by Bryan Sykes at ICAJ Seminar held November 22, 2014 at Knutsford Court Hotel How did we get here?

The International Environment Presented by Bryan Sykes at ICAJ Seminar held November 22, 2014 at Knutsford Court Hotel Caribbean Financial Action Task Force (CFATF) Affiliate if the Financial Action Task Force (FATF) Jamaica part of CFATF Committed to implementing FATF proposals

The International Environment Presented by Bryan Sykes at ICAJ Seminar held November 22, 2014 at Knutsford Court Hotel Anti money laundering measures – dirty money made to look legitimate Counter terrorism measures – need not be dirty money. Can be legitimate money used to finance terrorism

The International Environment Presented by Bryan Sykes at ICAJ Seminar held November 22, 2014 at Knutsford Court Hotel FATF recommendation 22 Turns certain professions into a ware house of information about clients for the later use of law enforcement who may come calling some months or years after the transaction The professions need to keep records if engaged in certain transactions

The International Environment Presented by Bryan Sykes at ICAJ Seminar held November 22, 2014 at Knutsford Court Hotel FATF recommendation 23 Turns some professions into state agents by requiring reporting of suspicious transactions. At risk of criminal conviction if fail to do so.

The International Environment Presented by Bryan Sykes at ICAJ Seminar held November 22, 2014 at Knutsford Court Hotel Jamaica found to be in breach by not implementing the recommendations to cover certain professions Threatened with dire consequences Placed on watch list for follow up If comply – Jamaica must apply to be removed from list

Jamaican Response Presented by Bryan Sykes at ICAJ Seminar held November 22, 2014 at Knutsford Court Hotel Proceeds of Crime Act – amended in 2013 to facilitate introduction of measures directed at public accountants Solution – the Proceeds of Crime (Designated Non-Financial Institutions) (Public Accountants) Order 2013

Public Accountants and POCA Presented by Bryan Sykes at ICAJ Seminar held November 22, 2014 at Knutsford Court Hotel Now required to establish identification and verification of identification procedures Must be able to carry out enhanced due diligence for certain categories of persons Implication – greater cost of doing business; possibly increased costs to clients or service provider absorbs the cost

Public Accountants and POCA Presented by Bryan Sykes at ICAJ Seminar held November 22, 2014 at Knutsford Court Hotel Supervisor body now called competent authority Authorised by section 91A to ensure compliance with POCA and its regulations Key provision – section 91 (2)

Public Accountants and POCA Presented by Bryan Sykes at ICAJ Seminar held November 22, 2014 at Knutsford Court Hotel Competent Authority has power to (a) establish measures or direct third parties to carry out inspections and verification procedures (b) issue directions to any accountant to take measures to prevent or detect money laundering/terrorist financing (c) come into practice examine and take copies of information or documents in possession or control of the accountant and relating to operations of that business

Public Accountants and POCA Presented by Bryan Sykes at ICAJ Seminar held November 22, 2014 at Knutsford Court Hotel Competent authority may (a) pass on information to another competent authority, supervisory authority in Jamaica or authority overseas (a) can require businesses to register and make reports required by the competent authority

Public Accountants and POCA Presented by Bryan Sykes at ICAJ Seminar held November 22, 2014 at Knutsford Court Hotel Criminalises failure to comply with any requirement or direction issued by the competent authority. No term of imprisonment prescribed – only fines

Matters of Concern Presented by Bryan Sykes at ICAJ Seminar held November 22, 2014 at Knutsford Court Hotel No independent oversight of competent authorities – judicial review No judicial intervention between taking of information and disclosure No mechanism for determining disputes outside of court No stated mens rea requirement for offence under section 91A (5). No guarantee that court will interpret section to require mens rea