188ÌåÓý

There is no legal definition of ‘deliberateâ€�. Dictionary definition of deliberate is intentional or planned. Tribunals have found that deliberately means intentionally or knowingly.Ìý

Deliberate behaviour is when a person:Ìý

Deliberate acts are done consciously. The decision maker (DM) must establish the behaviour and have sufficiently strong evidence to demonstrate that the behaviour was deliberate.Ìý

The case most often referred to in tribunal decisions when determining the definition of deliberate behaviour isÌýÌý

“In our [the Tribunal’s] view, a deliberate inaccuracy occurs when a taxpayer knowingly provides HMRC with a document that contains an error with the intention that HMRC should rely upon it as an accurate document. This is a subjective test. The question is not whether a reasonable taxpayer might have made the same error or even whether this taxpayer failed to take all reasonable steps to ensure that the return was accurate. It is a question of the knowledge and intention of the particular taxpayer at the time.â€�Ìý

The burden of proof lies on HMRC to show that deliberate behaviour has occurred, and that evidence must meet the evidential standard required by the tribunal or courts.Ìý

Deliberate behaviour does not only involve ‘deliberately actingâ€�,Ìýit also covers ‘deliberately failing to actâ€�.Ìý

The case ofÌý, the lawyer should reasonably have known his clients were involved in money laundering but chose to turnÌýa blind eye.  Griffiths was sentenced to 15 months in prison for failing to report suspicions as required under section 330(1) Proceeds of Crime Act 2002 (POCA)Ìý(reduced to 6 months on appeal).Ìý

Another example is in the case ofÌý the relevant persons, in a money service business (MSB) were convicted under section 330ÌýPOCA for failing to fileÌýsuspicious activity reports (SARs).Ìý

â€�â€�knowing, suspecting or having reasonable grounds for suspecting that WILLIAM ANTHONY GURIE (their customer) was engaged in money launderingâ€�.Ìý

In both cases, given their training and capability to perform in a key role, the lawyer (a professional in supervised authority) and the relevant persons, should have suspected and therefore filed a SAR.Ìý

The case ofâ€� the court applied the meaning of ‘wilful neglectâ€� (as set out inâ€�R v Sheppard [1981] A.C. 394) to an offence contrary toâ€�. The court stated that the term ‘wilfullyâ€� meansâ€�deliberately refraining from acting or refraining from acting because of not caring whether action was required or not.â€�Ìý

In conclusion, ¾±³Ù’s not just about the business/person deliberately acting in a certain way, therefore theyâ€�didÌýknow better; failing to properly implement anti-money laundering controls when the businessâ€�shouldÌýhave known better can also be classed as deliberate. This is particularly the case for fit and proper sectors (MSBs and trust or company service providers (TCSPs), where we test their training and capability to perform in a key role.Ìý