Guernsey Consent Regime Guidance – Financial Intelligence Unit, January 2022.

The Bailiwick of Guernsey’s Financial Intelligence Unit (“FIU”) released the Consent Regime Guidance on 20 January 2022 to assist the financial sector in discharging their legal duties in respect of consent matters. Below are some key takeaways:

What is the Consent Regime?

1. Businesses are expected to use a risk-based approach when considering business relationships to prevent their products and services from being used for money laundering (“ML”) or financing of terrorism (“FT”).
2. Where a suspicion has been formed in relation to any property, transaction or proceeds which may directly or indirectly relate to criminal conduct, consent provides a statutory defence to ML & FT offences; however, it is not a substitute for reporting entities to discharge their obligations as required under the relevant laws.

When to Seek Consent

3. The purpose of seeking consent is to seek a defence to an ‘act’ that could constitute an offence under the law.
4. Where a reporting entity
   • Is being asked to carry out an act that may comprise of any concealment, conversion or transfer of such property or its removal from the Bailiwick.
   • In that case, they must seek defence from the FIU before they undertake that act.
5. Failure to provide sufficient details will delay the FIU’s decision-making process. There is no statutory time limit in which the FIU must respond to a consent request, and however, the FIU will aim to respond to the request within 14 working days of the submission.

No Consent

6. The FIU is entitled to withhold consent as long as it suspects that an act involves funds that represent the proceeds of crime or comprise the terrorist property.
7. If a business proceeds with the requested activity following consent being refused, they will have no statutory defence to a charge of ML or TF.
8. The FIU can re-consider the original ‘No Consent’ if the business provides new information or previously unaware information to the FIU, which they believe may negate the original suspicion.

‘Consent Granted’ Letter

9. Where consent has been granted, the business will have a defence to an ML or TF offence only in relation to the actions specified in the request if the business chooses to undertake the proposed act.
10. Any changes in circumstances thereafter may impact the validity of the defence.
11. Granted consent does not imply that the FIU approve of the circumstances within the disclosure or that the associated property or funds are not the proceeds of crime.

Ongoing Obligations & Tipping Off

12. Once a SAR has been submitted to the FIU, it does not release you from your ongoing obligations in respect of all future transactions.
13. Further considerations may include how to negate the suspicion or how to terminate the business relationship appropriately.
14. Under no circumstances must you inform your client or customer that you have submitted a SAR to the FIU or intend to submit a SAR.
15. If you do inform your client as such, you could be committing an offence under the relevant legislation.

The FIU guidance IS here. https://guernseyfiu.gov.gg/CHttpHandler.ashx?id=149353&p=0