The Home Office has issued a circular setting out its position on the use of SARs in private civil litigation. Its aim is to protect reporters and subjects of SARs and the integrity of the regime.
A previous circular explained that SARs are not in the public domain and generally, subject to balancing public interest factors, should not be disclosed. Added to which, disclosure that a SAR has been made or a money laundering investigation is underway can constitute tipping off.
The guidance says reporters should, so far as possible, avoid referring to SARs in the documentation of their internal decision making process. So, for instance, documents justifying the termination of a customer relationship should focus on the basis for the decision – commercial factors, risk appetite reasons, non-compliance with terms, or inability of the reporter to apply adequate CDD. All this could help justify a decision without reference to or reliance on a SAR, and may also remove the need for reliance on the SAR in litigation. The guidance says that the making of a SAR should not be an act that obliges the reporter to terminate a customer relationship, hence the reporter can justify the termination decision without relying on the SAR.
The guidance then goes on to recognise circumstances in which the relevance of the SAR is paramount and must be disclosed, such as where a transaction is delayed while the reporter seeks a defence after making a DAML SAR. In such cases, the reporter should contact NCA with all relevant details as soon as possible, so NCA can consider the risks and give its view – although it cannot give any assurances on tipping off or prejudicing an investigation.
The guidance also touches on data subject access requests, and reminds reporters of DPA exemptions to responding to requests.