The Sum of All the Parts

Compliance monkeyThe Guernsey Anti-Money Laundering and Countering Terrorist Financing (“AML/CTF”) framework has continually developed to take in to account good practice, external pressures, requests and recommendations of onshore governments, quangos and international organisations  to ensure that financial crime in all its guises is effectively tackled. The Commission have sought to and I would say that they have largely achieved a cohesive framework that effectively mitigates against the use by criminals of Guernsey as an international finance centre while not over burdening the Financial Service Business operating here.

This cohesive framework has been achieved over the course of the years by open dialogue with local industry bodies, licensees and working effectively and productively with those outside of Guernsey to achieve a proportionate approach for  the products and services that are provided to clients wishing to utilise the jurisdiction. Most notably in 2013 the AML/CTF framework in Guernsey changed extensively and this resulted in general insurance products being removed, but did it remove all the products and services that can classified as General Insurance?

With regard to the Insurance sector in Guernsey, a legal entity can be licensed for general business or for long-term business. Long term business is defined in the Insurance Business (Bailiwick of Guernsey) Law, 2002 as contracts on human life, human longevity, marriage and birth, linked long-term, permanent health, capital redemption, pension fund management and credit life assurance. Due to the nature and the requirements of some clients, an insurance licensee with a general business categorisation may want to offer some of these products to their clients to supplement the range of products and services they currently or can offer their clients, but without the need to be licensed for long-term business.  Section 2(4) of the Insurance Business (Bailiwick of Guernsey) Law, 2002 does allow for an Insurance licensee to elect that a contract for a term of not more than 18 months that may be regarded as a long-term business contract and can be deemed to be general business.

This would appear to allow a general insurer to fit such products into their licence requirements e.g. general insurance, without the requirements to adhere to the Guernsey AML/CTF framework as per the changes that were made to the Commission’s AML/CTF Handbook (” Commission’s Handbook”), in 2013.  It should be noted that the treatment of these products, though allowed to be done in certain circumstances by an Insurance licensee does not change the definition of those products in the Insurance Business (Bailiwick of Guernsey) Law, 2002.

In the Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Regulations, 2007 at schedule 1 it states that a Financial Services Businesses for the purposes of the Regulations are detailed in part 1 of the schedule, except where they are incidental or are other activities as listed at Part 2 of the Schedule. Part 1 of the schedule includes the carrying on of “Long Term Business as defined by the Insurance Business (Bailiwick of Guernsey) Law, 2002 as being a Financial Services Business for the purposes of the Regulation and the Commission’s Handbook, it does not include any change in the treatment of an Insurance product by an Insurance Licensee. The Commission’s Handbook at section 4.8 specifically deals with the treatment of life or other investment linked insurance policies and as such these appear to directly fall in to the Guernsey AML/CTF regime. Effectively this is saying that if a product falls under the long-term definition stated in the Insurance Business (Bailiwick of Guernsey) Law, 2002 though a Licensee it may regard it as being General business they remain subject to the AML/CTF Regulations. Thus a licensee must adhere to the requirements of the Commission’s Handbook and AML/CTF framework when dealing with such products.

The sum of all these parts would indicate that an Insurance licensee effecting or carrying out life or other long-term products regardless of how a Licensee may be able to classify these products as general business under the Insurance Business (Bailiwick of Guernsey) Law, 2002, they would still fall under the AML/CTF regulations and Commission’s Handbook by way of the requirements of the Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Regulations, 2007 held at schedule 1. An Insurance Licensee regardless of how it treats such products under its licence would be required to have in place an effective AML/CTF framework.  A licensee must be able to evidence the suitability of its AML/CTF framework and compliance with the AML/CTF requirements pertaining to its business to the Commission.

An Insurance licensee must ensure that at all times they meet the requirements for the minimum criteria for licensing, schedule 4 of the Insurance Business (Bailiwick of Guernsey) Law, 2002. This includes a requirement to meet and adhere to any rules, codes, guidance, principles and instructions issued from time to time under any other enactment as may be applicable to the business, and this would also be inclusive of the Guernsey AML/CTF framework.

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Is Client Due Diligence there to stop Criminals and Criminality?

ImageOver the last few years of training people in the weird and wonderful world of AML/CTF I have noticed that people have become despondent with the subject.  I will be the first to admit that it can be a pretty dry subject if not put across well.  One of the areas of despondency that Licensees and their employees have with AML/CTF comes from the task of collecting Client Due Diligence (“CDD”).  Will the collation of CDD actually stop criminals utilising the Bailiwick?  Does this process have any effect on stopping criminality? With some Licensees believing that this burdensome exercise acts as a detriment to business, is this really the case or a misunderstanding?

Stopping criminality and criminals using the Bailiwick by obtaining a passport and utility bill is improbable. It is very unlikely that on production of these documents that they will inform you that they are a criminal and will be using your services and products for their criminality (I have only ever had one unsuccessful drug importer inform me what he was up to when stopped, but that’s another story). These documents are provided to criminals by Government agencies and Utility firms, legitimately, as it is the criminal’s human right after all to be able to live and travel and many do have legitimate incomes.  Criminals will sometimes use fraudulent documents which I’m afraid are prevalent in today’s society.  Fraudulent documents are cheap and easy to obtain and in today’s world of computer technology easy to produce to a very good standard, just look at the print quality of documents that you produce in your office on a day-to-day basis!  Criminals have access to the same if not better technology. Criminals in my experience are only different from ourselves through their moral and ethical values. Ethical and moral values change throughout a person’s life due to the situations they find themselves in and therefore a legitimate customer at a start of a business relationship may change in to a criminal. Unfortunately a passport or utility bill will not tell you if your customer will become a criminal at a later stage.

We are an International Finance Centre respected worldwide for our professionalism and the quality of our products and services and this will naturally be attractive to our customers and potential customers as well as criminals.  Our regulatory framework requires us to identify and verify our customers by obtaining CDD and in my opinion this is not only for us to know our clients and undertake checks to identify any adverse information on them but it also assists Regulators and Law Enforcement Agencies in preventing and detecting criminality and identifying the perpetrators.  By obtaining the required level of CDD when international requests for assistance in investigations are received by either our Regulator or Law Enforcement Agency, it will allow a licensee to react effectively and efficiently, searching their client database to establish if there is any connection or potential connection.

Our Law Enforcement Agency and the Regulator receive requests for assistance from overseas agencies and from my experience the requests are not always the most detailed or extensive and sometimes not totally accurate, this is not the fault of the overseas agency as they are only as good as the intelligence they receive from their sources.  From my time in the Financial Intelligence Service it has never ceased to amaze me that with a little information provided to our Licensees they are able to quickly identify if there is a connection or a potential connection to an enquiry, this is a credit to the professionalism of their employees and commitment in not allowing criminals to prosper.

In one case I dealt with the request for assistance was received from an overseas Law Enforcement Agency who could only provide the suspected person’s name which was very common and a potential address. Not expecting a lot I was surprised to get a phone call from a local financial institution that had a possible match on the suspected person. Relaying this information back to the overseas Law Enforcement Agency their amazement was evident. With a bit more investigative work and liaising between the parties involved it transpired that the local financial institution did have the person the overseas Law Enforcement Agency believed to be involved in criminality, an exercise made easier due to the financial institution having obtained the required CDD which also led to further details being discovered.

I have also been told on occasions by overseas agencies that they always like dealing with the Bailiwick as they are able to establish quickly if there is a connection to their suspect.   This greatly assists them in directing and managing their case and also any potential prosecution. Something positive for all stakeholders in our financial industry to take away with them!

We can safely say that the CDD documents we obtain will not stop criminals utilising the Bailiwick but as you can see they do act as a deterrent.  These documents won’t stop criminality but they will assist in the fight to detect and identify effectively and efficiently suspected criminals when we receive requests from our Law Enforcement Agency or Regulators. The assistance we give to the international community allows the Bailiwick to hold its head up high while discrediting the view held by some out there that we are a safe haven for criminals and their ill-gotten gains, and we do have our supporters out there.

Explaining my view on the necessity to collate these documents, Licensee’s and their employees are able understand the vital importance that they and these documents play in deterring criminals and assisting the international community in the prevention and detection of crime. I hope I have removed the perception that the CDD collation exercise is worthless and burdensome to a business, while demonstrating that it is a worthwhile and a necessary part of doing business in a moral and ethical way. It is interesting to note the recent developments in the on-shore world to pass regulations in respect of identifying ultimate beneficial owners, something we have had in or regulatory framework and have been undertaking for a very long time!