In the US, enforcement authorities will often learn of potential money laundering through the submission of Suspicious Activity Reports (SARs) to FinCEN. SARs are then made available to appropriate law enforcement agencies to assist with the investigation and prosecution of criminal activity. The PATRIOT Act also established a mechanism for law enforcement agencies to share the names of persons engaged in or suspected to be engaged in money laundering or terrorism with financial institutions in order to locate accounts and transactions involving those suspects.1
If FinCEN or another AML enforcement authority determines that a referral to the Department of Justice for potential criminal investigation is appropriate, the investigative tools typically used by US law enforcement are available. For more on this topic, see here (documents) and here (testimony).
In the UK, the NCA, SFO, HMRC and FCA work closely together and have access to the database of SARs. Accordingly, any one of these authorities may learn of suspicious transactions and commence its own investigations.
The SFO, HMRC and NCA can apply for a Production Order requiring the subject of a money laundering investigation to produce specified material. A Production Order is granted only upon reasonable grounds for suspecting that the respondent has committed a money laundering offense. The court can also issue an order requiring a person to grant entry to the premises to enable law enforcement to access to the material.2
The SFO also has the power to issue notices (commonly known as Section 2 Notices) requiring companies or individuals to produce documents and information or answer questions in connection with investigations for “serious or complex fraud.” Statements made to the SFO in a Section 2 interview can be used as evidence in criminal proceedings against that person only under limited circumstances. For this reason, when conducting interviews of suspects, the SFO generally uses its power under the Police and Criminal Evidence Act 1984. For more on this, see here.
A recent addition to the armory of investigatory tools in the money laundering context is the Unexplained Wealth Order (UWO). The NCA, SFO, FCA, and HMRC may apply for a court order requiring the subject of the order to provide a statement setting out, among other things, how they obtained the property and the nature of their interest in it.3 UWOs can be issued if the respondent holds property greater than £50,000; there are reasonable grounds for suspecting that the known sources of the respondent’s lawfully- obtained income would be insufficient to enable the respondent to obtain the property; and the respondent is either a Politically Exposed Person, or there are reasonable grounds to suspect that the respondent (or a person connected with him) has been involved in a serious crime. However, it should be noted that, similar to a Section 2 interview, there are severe restrictions on the extent to which statements made in compliance with an UWO may be used against the respondent in criminal proceedings.
In France, the Public Prosecutor and Investigating Judge, working together with police agencies, have a full range of investigative powers, which depend on the type of criminal investigation. These powers are extremely broad and include powers to interview, search, compel disclosure, obtain evidence and powers of arrest. The offense will be prosecuted in accordance with the rules of the French Code of Criminal Procedure, as with any other criminal offense.
The French Supervisory Authorities responsible for monitoring compliance with anti-money laundering obligations (AMF, ACPR, National Enforcement Commission, etc.) also have a large range of investigative powers and can take administrative enforcement measures and impose penalties. These include powers to summon individuals to attend interviews, powers of search (dawn raids), powers to compel disclosure and powers to obtain evidence, including through international cooperation.
1 PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272, Title III, § 314(a) (2001).
2 Proceeds of Crime Act 2002, c. 29, §§ 345-347 (UK).
3 Criminal Finances Act 2017, c. 22, § 362F (UK).