Money laundering

Money laundering is the process by which criminals attempt to conceal the true origin and ownership of the proceeds of their criminal activity, allowing them to maintain control over the proceeds and, ultimately, providing a legitimate cover for their sources of income. The term is widely defined to include: possessing, in any way dealing with, or concealing, the proceeds of any crime ('criminal property'). It also includes:

• an attempt or conspiracy or incitement to commit such an offence

• aiding, abetting, counselling or procuring the commission of such an offence

• an act which would constitute any of these offences if done in the UK.

'Criminal property'
This includes:

• proceeds of tax evasion

• a benefit obtained through bribery and corruption

• benefits obtained, or income received, through the operation of a criminal cartel

• benefits (ie saved costs) arising from a failure to comply with a regulatory requirement that is a criminal offence.

Tipping-off
The offence of tipping-off occurs when the MLRO (or an individual) makes a disclosure which is likely to prejudice an investigation. This does not prevent businesses and individuals discussing with clients, and advising on, issues regarding prevention of money laundering or other related matters, on a non-specific basis.

Fiscal offences
Tax-related offences are not in a special category. Tax evasion is a crime, the proceeds of which can be laundered in the same way as those from drug trafficking, terrorist activity, theft, etc. Offences may relate to direct or indirect tax. Tax evasion offences, which fall within the definition of money laundering include underdeclaring income and overclaiming expenses.

Professional duty of confidence
Accounting professionals will not be in breach of any professional duty of confidence if they report, in good faith, any money laundering knowledge or suspicions to the appropriate authority.

Statutory provisions give protection against criminal action for members in respect of their confidentiality requirements. This protection applies even if the suspicions later prove to be groundless, provided that the reports were originally made in good faith.

Client confidentiality override provisions are available when:

• there is knowledge or suspicion that a person has committed a money laundering offence

• a prohibited act will be or has been committed.

Disclosure without reasonable grounds will increase the risk of a business or an individual being sued for breach of confidentiality.

Record keeping
All client identification records, together with a full audit trail of all transactions, must be maintained. Records of transactions must be kept in a readily retrievable form for a period of at least five years, with controls to ensure that they are not inadvertently destroyed. Client verification records must be retained throughout the period of the relationship and for five years after termination of the relationship. ACCA's Rules of Professional Conduct 'Retention of books, files, working papers and other documents' also apply.

Client identification
The requirement to verify the identities of all clients is mandatory. Verification must be documented before any work is undertaken. Sufficient knowledge of a client must be maintained to be able to identify that which is unusual and/or suspicious. Members are required to obtain evidence of identity for all clients where:

• an ongoing business relationship is to be established

• the total value of any transactions is not known at the outset

• a one-off transaction or a series of transactions in excess of (the equivalent of) Euro 15,000 is to be undertaken.

Anti-money laundering programme
Basic elements:
The basic elements to be considered when designing an anti-money laundering programme include:

• dedicated resources

• written policies and procedures

• comprehensive coverage

• timely escalation and resolution of matters

• explicit management support

• sufficient training and education

• regular review/audit of the programme.

Dedicated resources
A person should be identified and charged with the responsibility for overseeing the entire anti-money laundering programme. The MLRO must be:

• competent and knowledgeable about money laundering

• empowered with full responsibility and authority to make and enforce policies and procedures.

Regular review/audit of the programme
A regular review of the programme should be undertaken to ensure that it is functioning as designed. Such a review could be performed by external or internal resources, and should be accompanied by a formal assessment or written report.

Whistleblowing

The objectives of an internal whistleblowing program are

• To encourage employees to bring ethical and legal violations they are aware of to an internal authority so that action can be taken immediately to resolve the problem

• To minimize the organization's exposure to the damage that can occur when employees circumvent internal mechanisms

• To let employees know the organization is serious about adherence to codes of conduct

The barriers to a successful internal whistleblowing program are:

* A lack of trust in the internal system

* Unwillingness of employees to be "snitches"

* Misguided union solidarity

* Belief that management is not held to the same standard

* Fear of retaliation

* Fear of alienation from peers

Steps for Creating a Whistleblowing Culture

• Create a Policy

A policy about reporting illegal or unethical practices should include

* Formal mechanisms for reporting violations, such as hotlines and mailboxes

* Clear communications about the process of voicing concerns, such as a specific chain of command, or the identification of a specific person in the organization, such as an ombudsman or a human resources professional

* Clear communications about bans on retaliation

In addition, a clear connection should exist between an organization's code of ethics and performance measures. For example, in the performance review process, employees can be held accountable not only for meeting their goals and objectives but also for doing so in accordance with the stated values or business standards of the company.

• Get Endorsement From Top Management

Top management, starting with the CEO, should demonstrate a strong commitment to encouraging whistleblowing. This message must be communicated by line managers at all levels, who are trained continuously in creating an open-door policy regarding employee complaints.
Publicize the Organization's Commitment

To create a culture of openness and honesty, it is important that employees hear about the policy regularly. Top management should make every effort to talk about the commitment to ethical behavior in memos, newsletters, and speeches to company personnel. Publicly acknowledging and rewarding employees who pinpoint ethical issues is one way to send the message that management is serious about addressing issues before they become endemic.

• Investigate and Follow Up

Managers should be required to investigate all allegations promptly and thoroughly, and report the origins and the results of the investigation to a higher authority. For example, at IBM, a long-standing open-door policy requires that any complaint received must be investigated within a certain number of hours. Inaction is the best way to create cynicism about the seriousness of an organization's ethics policy.

• Assess the Organization's Internal Whistleblowing System

A lil bit on case;

Attitudes toward whistleblowing have evolved considerably during the past 50 years in corporate America, from the early days of the "organization man" ethos where loyalty to the company was the ruling norm, to the present time when public outrage about corporate misconduct has created a more auspicious climate for whistleblowing.

Prior to the 1960s, corporations had broad autonomy in employee policies and could fire an employee at will, even for no reason. Employees were expected to be loyal to their organizations at all costs. Among the few exceptions to this rule were unionized employees, who could only be fired for "just cause," and government employees because the courts upheld their constitutional right to criticize agency policies. In private industry, few real mechanisms for airing grievances existed although, for example, IBM claimed from its earliest days, to have an effective open-door policy that allowed employees to raise any issue.

In part because of this lack of protection for whistleblowers, problems were often concealed rather than solved. Probably the most egregious example was in asbestos manufacturing, where the link to lung disease was clearly established as early as 1924 but actively suppressed by company officials. The first product liability lawsuit against an asbestos manufacturer was not successfully promulgated until 1971.

The 1970s were notable for cases in which employees who had known of product defects or hazards decided to "swallow the whistle," as Alan Westin, Henry Kurtz, and Albert Robbins put it in their book, Whistleblowing. The result was that consumers and other employees were seriously harmed; and when the information went public, so were the organizations that were damaged by awards in the millions.

Even in cases where whistleblowing occurred, it was not always heeded. In 1972, Firestone Tire Director of Development Thomas A. Robertson sent top management a memo warning that the 500 tire was inferior and subject to belt-edge separation at high speeds. His warning was ignored despite reports about poor performance from major customers such as General Motors, and the 500 tire was kept on the market. By the time Time magazine reported that accidents caused by blowouts had resulted in more than 41 deaths and hundreds of serious injuries, the company had already replaced 3 million tires and spent millions of dollars in personal injury lawsuits. If Robertson had received an internal hearing or blown the whistle externally, such disasters for the public and the company could have been avoided.

Unfortunately, it appears Firestone did not make the necessary organizational changes to prevent such debacles, since the story repeated itself in 2000. After an investigation by the National Highway Traffic Safety Administration, Ford announced a recall and replacement of 3.5 million Firestone tires in October 2000. This recall occurred after 200 deaths and 700 serious injuries had already been reported because of the unsafe tires.

When news of the problem broke in late 2000 and early 2001, it became clear many groups at Ford and Firestone had known about the faulty tires as early as 1996. The ultimate result of inaction by these groups was that Firestone and Ford were called to testify before Congress, millions of dollars were spent settling lawsuits, and a century-long relationship between Ford and Firestone was severed in 2001.

There have, of course, been successful cases of whistleblowing although even in these cases, the personal and professional toll on the individuals has been heavy. In 1968, A. Ernest Fitzgerald, who was in charge of cost evaluations of the C-5A air transport program, found a cost overrun of $2 billion. Although the Air Force dismissed him, he was reinstated through legal action. He was, however, demoted. He later won another appeal for reinstatement in his former position. The reasoning for the actions against him was explained in a memorandum to John Haldeman of the Nixon White House: " Fitzgerald is no doubt a top-notch expert, but he must be given very low marks on loyalty; and loyalty is the name of the game."

In 1996, Jeffery Wigand, a tobacco researcher, revealed that Brown & Williamson Tobacco Corp. knew tobacco was addictive. His revelations had a dramatic impact on public policy and public perceptions of the tobacco industry. However, although he was vindicated by the attention he received in the media and by the fact that after his revelations, victims of tobacco-related illnesses began to be successful in their litigation against the tobacco companies, he still experienced severe personal consequences including threats against his family, loss of income, divorce, and the threat of litigation for breach of confidentiality.

Internal audit & Corporate governance

MANAGEMENT IS counting on internal auditors more than ever to improve governance processes, according to a new report from Crowe Chizek, an assurance, consulting, and risk management provider. Infernal Audit Plays Pivotal Role in Strengthening Corporate Governance focuses on the profession's opportunities to become a strategic player in corporate governance in response to increased government regulation and management directives to strengthen controls and improve risk management.

The report notes that The IIA's International Standards for the Professional Practice of Internal Auditing calls on internal auditors to evaluate and offer recommendations to improve governance processes and affirms their importance in risk management activities. Providing an overview of the governance trends and challenges internal auditors face, the report reminds auditors and management that the board of directors bears the primary responsibility for ensuring effective governance. The report provides examples of steps internal auditors can take to help management and the board with their responsibilities, such as:

1. Assisting the board of directors in its governance self-assessment.
   

1. bringing best practice ideas about internal controls and risk management processes to the audit committee.

1. Looking for opportunities to leverage compliance activities to reduce long-term costs.

1. Reviewing the organization's code of conduct and ethics policies to ensure they are current and are communicated to employees.

1. Conducting annual audits of whistleblower hotline and follow-up processes and reporting the results to the audit committee.

1. Addressing disclosure and transparency objectives in the annual audit plan.