GDPR- What, How When, Where, Who?

In an increasingly digital world, it is arguably harder to keep track of what we have bought, who we have spoken to, what we have signed up to and more importantly, where our data is held. When we receive the telephone calls about accidents that we never had or emails from a friend who is supposedly stuck in Thailand after being involved in a tuk tuk collision, it often worries us how our details ended up in the hands of these rather ominous places. 

Organisations have become wise to the trends in consumer behaviour; namely, we want things done quickly and efficiently with as little bureaucracy as possible. A trend that has been exploited by firms using pre-ticked boxes and electronic receipts as consent to marketing as a way of increasing their customer base and decreasing consumer knowledge.

Well, four letters have the potential to shift the power back to the consumer and those four letters are G.D.P.R. You may have only just started to hear the acronym being used or might not be aware of what it even means but organisations all over Europe are currently working on becoming compliant with what is being dubbed the biggest change to data protection law in the last 20 years. 

This article will give you a brief understanding on the EU General Data Protection Regulations (GDPR) and what MJP Conveyancing has been doing to ensure compliance for our clients.

What?

1998; the era of chunky Nokia flip phones and dial up computers. 1998 was also the year that the Data Protection Act was introduced setting out 8 principles governing the use of personal information. Since 1998 we have witnessed technological growth on a scale far greater than we can process resulting in inadvertent cultural trends and an increasing imbalance of power in favour of the producer rather than the consumer.

 Let’s take the Tesco Clubcard as an example. Introduced in 1995, the Club Card was arguably introduced to gain a competitive advantage against its rivals by offering perks to returning customers. Since 1995 however, the growth in technology and types of data collected through the Club Card has enabled Tesco to gain a better understanding of their customers’ shopping habits such as what meals people like to eat, whether people like to cook from scratch or how many people are in the household based on the number of toilet rolls a customer purchases. My point? It is clear to see how data collection and analytics are changing at a rapid pace and there has been a growing need to modernise data protection legislation in order to protect how our data is shared and utilised by organisations.

The General Data Protection Regulation (amongst many other functions) seeks to bring data protection legislation into the 21^st Century by protecting the fundamental rights and freedoms of natural persons and in particular their right to the protection of personal data.  

How?

How does GDPR seek to modernise data protection regulation? There are various ways in which GDPR seeks to modernise data protection laws such as appointing a Data Protection Officer, Free Subject Access Requests and the relationship between data processors and controllers.

One particular modernisation of the GDPR under Chapter 3 lays out 8 rights for individuals, namely:

1. The right to be informed
2. The right of access
3. The right to rectification
4. The right to erasure
5. The right to restrict processing
6. The right to data portability 
7. The right to object 
8. Rights in relation to automated decision making and profiling.

These 8 rights amongst other things aim to provide individuals with a higher degree of access to their data as well as more transparency around how it is processed. What’s more, the GDPR explains how companies must provide a ‘reasonable’ level of protection which in itself provides the Information Commissioner’s Office with a lot of scope to fine companies who are in breach of these rights under the regulations.  

Another modernisation to the data protection act through GDPR is the mandatory requirement to report Data Breaches within 72 hours to the ICO which was not under the Data Protection Act. Companies such as Carphone Warehouse, Facebook, Under Armour and My Fitness Pal have been in the press recently for Data Protection breaches, but it is not just the big guys that face liability. Small and large companies are under an obligation through Article 33 of the GDPR. With fines as large as €20 Million or 4% of total global turnover as versus maximum fines of £500,000 under the Data Protection Act, not only is GDPR enabling regulatory bodies to clamp down on bad practice, but are also providing clients with a satisfying remedy knowing that their data has not financially benefited business.

Overall, these regulations reflect a changing technological landscape which in turn has required our legislation to impose a greater degree of responsibility for those who control and process as part of their business.

When?

GDPR comes into force on the 25^th of May 2018. MJP Conveyancing have been working since December 2017 to ensure full compliance with the regulations. A dedicated team of inhouse staff have worked through a project list and we are now confident that we are compliant with the regulations.

Where?

You may be thinking why I have taken then time to write this article given that the GDPR regulations are a piece of EU legislation and doesn’t apply to us because of Brexit. This is in fact wrong and the UK will have to prepare for GDPR as with all the other organisations within the EU in line with Article 3 of the GDPR .  

To end…

MJP Conveyancing has been working tirelessly to comply with the GDPR regulations having successfully run a re-permissioning campaign, risk assessments and audits, staff training and various policy changes. We feel ready for the regulations and hope to provide our clients with a safe, transparent and reliable service which is really the ultimate aim of these regulations. 

See you on the other side of May 25^th!

Written by Emily Chawawa.

MJP Compliance Officer 

Financial Crime - Conveyancing File Access Requests

The focus on financial crime detection is unlikely to diminish. On the contrary, it I likely to intensify and with this there will no doubt be a marked increase in requests from law enforcement agencies for access to client files.  

There are several powers available to those conducting financial crime investigations, and there is a need for all conveyancers to understand the obligations these create, and how the discharge of these should be balanced with the requirement to keep client’s information confidential. 

The probability of receiving a request for access is high, and the need to be prepared, and to prepare your staff on what to do if a request is received, is one which you would be foolish to ignore. 

The conflicting professional obligations are contained in Chapter 4 and 5 of the SRA Code of Practice. The former places an obligation on you to keep the affairs of clients confidential, unless disclosure is required at law, or the client consents. The latter Chapter states you must comply with court orders which place obligations on you. 

Normally, the starting point for the enforcement agent is to serve a S29 Data Protection Act notice asking for information on a client for the purposes of the prevention, detection or investigation of a crime. The notice, if you comply with it, provides a defence to a claim of a data protection breach, yet it will not, and this is important to note, override your obligation of confidentiality.  

So what do you do? To begin with, you should make sure that the request is referred to the appropriate person within your organisation. It should go without saying, that you should have a plan in place to be relied on in the event of a request, for responding, dealing with clients and other relevant third parties and advisers. 

It is important to remember, that unless you are in receipt of instructions from the client under investigation relating to the enquiry, it is a breach of confidentiality to confirm or deny you act for the client. If however your engagement is already known, ( for example you are advised that your details were found during the investigation ), then there would be no harm in accepting your connection to the client. 

Either way, you should advise the enforcement agency that you will not be able to grant access without a court order. 

You should also advise your professional indemnity insurers of the request straight away. Some policies will enable you to seek specialist advice on how best to respond, and on the more complex issue of which parts of the file are privileged from disclosure, and those which are not. Also consider contacting the SRA Ethics Helpline to seek guidance. 

You should also ensure that all files are available, since once an order for the production of the file is made you will normally only have 7 days to respond. 

Ask the investigator whether it is possible to contact the client to seek consent for the disclosure. Normally you will be told not to ‘tip off’ the client, and if you are, then you must make sure there is no contact with the client. Instead wait for the Order to be produced. Make sure all staff who have involvement in the transaction ( if ongoing ) are alerted and open a separate file to record and retain documents relating to the request. 

Also consider whether there is a need to submit a suspicious activity report. This is mainly relevant when you are acting for a client in a property transaction at the time the access request is received. This should put you on immediate alert of a possible money laundering offence, and if doubts about the source of funds or wealth also exist, your Money Laundering Reporting Officer will need to consider whether a SAR should be submitted. 

So to recap, never disclose a file without your client’s consent ( assuming you are in a position to seek this) , always invite the enforcement agency to apply for a production order, ensure you seek professional specialist advice either though your PII insurers or by going direct to an adviser, and then make sure you start preparing for the arrival of the production order. 

The agency will normally give you notice of when the application for the production order is to made ( normally within a 28 day period ), and will ask if you wish to be in attendance at the hearing of the application. Unless advised otherwise, there is no real need to attend the hearing, though it is worth asking for the time to comply with the order to be extended from 7 ( the standard ) to 14 days. 

There are several different notices and orders that can be sought depending on the nature of the investigation. Normally when property is concerned, and money laundering is suspected, the enforcement agency will seek a production order under s345 of the Proceeds of Crime Act 2002. The other likely option is to seek a production order under schedule 1 Police and Criminal Evidence Act 1984. 

Neither of these two orders will require your to produce material that is subject to legal professional privilege. 

On receiving the production order immediately refer this to your advisor, and begin copying the material in readiness for production. You will need to consider whether the order has been obtained correctly, whether it is clear in its terms ( not, for example, drafted too widely ) and whether there are any parts of the file which should be redacted or excluded under legal professional privilege.  

What amounts to legal professional privilege is not an easy question to address, and even specialist advisors often struggle to provide definitive guidance on this issue. In the conveyancing arena the relevant head of privilege is advice privilege.  In a conveyancing transaction all communication between you and a client is covered by privilege even though it does not contain advice e.g communication with, instructions from, and advice given to the client in the performance of your legal duty as adviser. This includes all working papers, your bill of costs and completion statement, and information imparted by prospective clients in advance of a retainer. Advice privilege does not however attach to the clients ledger and the actual conveyancing documents. 

Legal professional privilege can be displaced by the crime/fraud exception where documents form part of a criminal or fraudulent act or communications which take place in order to obtain advice with the intention of carrying out of an offence. This applies even when you are not aware that you are being used for that purpose.  Arguably, in the context of a conveyancing transaction where there is prima facie evidence of money laundering or attempted money laundering, this could mean that the whole of your file would need to be produced. 

As you will see this is a very complex area of law and specialist advice should always be sought. 

MJP Conveyancing are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877067 or via email at davidp@mjpconveyancing.com

Your obligations under the Criminal Finances Act 2017

The pages of legal journals, and other publications, are currently filled with information and guidance on GDPR and Anti Money Laundering, yet there is very little commentary on the far-reaching obligations imposed by the Criminal Finances Act 2017 (‘Act’). It received royal assent the 27th April last year, and contains some of the most far-reaching changes to anti-money laundering since the passing of the Proceeds of Crime Act 2002, as well as new powers designed to address the seizure of suspected criminal property.

Equally as important the Act has also created new offences in relation to the facilitation of tax evasion which will affect all companies, LLPs and partnerships, such as lawyers.

A company or LLLP or partnership can now be held to account for the actions of its directors, employees and others businesses with which it might contractually engage (“Associated Persons”) in relation to a failure to prevent facilitation of tax evasion – not only in relation to UK tax but also in relation to foreign tax evasion offences.  

This includes any specific statutory tax evasion offence or the common law offence of cheating the public revenue. There must also be an element of fraud or deliberate dishonest conduct, so liability would not arise, for example, through failure or even a refusal to complete a tax return or breach of other similar notice requirement offences. There need not be a conviction for a tax evasion offence.

There is a defence. Liability will not arise if the Associated Persons “demonstrate that it has put in place a system of reasonable prevention procedures that identifies and mitigates its tax evasion facilitation risks” (ss.45(2) and 46(3) of the Act).

For liability to arise (according to the HMRC Practice Notes) there needs to be a deliberate and dishonest action to facilitate the evasion. This suggests that boa fide advice on, for example, a tax avoidance scheme, should not present a risk, though where the SRA has issued a warning notice about a particular arrangement, the line between potential liability under the Act and not, may prove, in my view, be less clear.  

Liability under the Act will not arise simply because a client is known to be committing tax evasion.  For the offence to be committed the adviser must be seen, as mentioned above, to be taking “deliberate and dishonest action” to facilitate the evasion. This would suggest that there is not a need to report a client for suspected tax evasion. Indeed, it is worth stressing that, since legal professional privilege applies to this offence no liability will arise for the firm under the Act if it fails to report tax evasion by the client where it knows that evasion is taking place.

Great care should however be exercised here, since if it is known the client is committing tax evasion and funds from that client are to be used say, to purchase a property, the tax evasion will mean the funds are criminally tainted, and to receive those funds into your client account would clearly amount to money laundering.  The tax evasion would clearly in these circumstances need to be reported to the NCA since failure to do so could constitute a criminal office under the anti-money laundering legislation.

The Act does not restrict the ability of a client to seek advice as to how legally to minimise tax liabilities.  It is to prevent the unlawful evasion of tax.  Thus, there is nothing to prevent a solicitor from defending criminal charges of tax evasion or providing advice to the client on how they may regularise their tax position through legal means. Similarly, a firm cannot be held to be liable if their advice to a client to cease tax evasion goes unheeded, though do keep in mind here your AML obligations.

So, what should we be doing to comply with the Act?

To begin with, there should be an immediate evaluation undertaken to assess the risk areas within the business.  In Conveyancing, the areas of risk center around tax advice on capital gains tax and stamp duty. The risk is heightened where the turnover of clients is high, and in offices where work is undertaken by individual case handlers rather than teams. If clients are referred on to outside advisors, for example to seek advice on Wills, this would also be viewed as a risk area. The HRMC Guidance notes are helpful in identifying both low and high-risk areas, and is a good starting point when putting together a risk assessment. Your AML risk assessment will also assist.

Once you have identified the areas of risk you can then look to form a policy on detection and prevention measures and controls.  How are staff vetted when they join?  Do you obtain references and carry out back ground checks? In my firm we undertake criminal background checks.   How do you carry ongoing monitoring and supervision of staff and third-party contractors?  Are files reviewed regularly?  Making sure there are good accounting protocols is a must.  How are transfers of money out of the office approved.  In this office no transfer is made without ensuring adequate source of funds and wealth checks are made and a director has paperwork to enable bank details can be checked before funds are sent out.  This helps to mitigate the risk of funds being transferred out to an account established by, for example, an employee.

One area of major risk of collusion is where the business acts for a family member or friend of an employee or the employee.  Stricter monitoring in these circumstances should be implemented, and a policy on who can work on those files should be formed and implemented.

As for third party contractors, make sure contracts are reviewed, that you formulate and issue a statement of your stance on tax evasion, and that you seek details of the business’s policy on the Act.  There is good argument to suggest that unless the contractor has a workable policy you should consider terminating the contract.

Putting together a policy is the first step.  Making sure you can demonstrate the implementation of the policy is the next step, and perhaps for establishing the defence to liability if required, is the most important one to take.  Organise staff training, create and maintain monitoring records, ask external file reviewers to include checks within the review.  Also review the risk assessment and policy regularly.

In short, do what you can to demonstrate that you are taking the obligations seriously, and that you are implementing adequate controls to detect signs of dishonesty within the work place.  Including a statement of your intent on your website and in your terms and conditions is also advisable.

MJP Conveyancing are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877067 or via email at davidp@mjpconveyancing.com

Is a source of funds check a complete waste of time?

A controversial question, but one I must raise given information received today from Lloyds Banking Group to the effect that it is not their policy to pass on bank details of the person transferring funds into a client account, without the consent of the transferor. It seems that depending on the type of transfer only the sort code of the transferor’s bank is captured and made available. This is not the case on all transfers however.

The consequence of this apparent data protection issue, is that without this information it is impossible to carry out a full and complete source of funds check, and to fully comply with obligations imposed by anti-money laundering and counter terrorism legislation.

Take the following example.

Client A provides Solicitor Firm B with bank statements and other documents to enable source of wealth and source of funds to be undertaken.  These checks are made and details of the account or accounts from which funds are to be transferred are recorded by Solicitor Firm B.  Client A then makes the transfer of funds into Solicitor Firm B’s client account. How is it possible for Solicitor Firm B to complete with its regulatory and statutory obligations and complete the source of funds check when Solicitor Firm B’s bankers refuse to provide details of the transferor’s account? A client with criminal intentions could have provided Solicitor Firm B the bank statements from a legitimate account only to later use an account holding criminal tainted funds for the transfer. 

This example demonstrates in my view a massive hole in anti-money laundering and counter terrorism measures and makes a complete mockery of the hard work that many of us are undertaking to assist the enforcement agencies with their fight against crime.

I know Lloyds is looking into this, and has referred the concern to the SRA and their legal department to seek urgent guidance. It will be interesting to see what comes of this referral when it is clear that there a legal obligation placed on a bank to obtain details of the account from which a transfer is to be made. The question whether this information should be passed onto a regulated body to discharge a legal obligation to adhere to anti-money and anti-money laundering and counter terrorism legislation is less clear.

In the meantime, the absence of joined up writing on this aspect of effective detection will leave the whole of the legal and other sectors covered by the legislation completely exposed.  I have asked Lloyds if this now means it is safe to assume that if the money is coming through the UK banking system the risk of money laundering and terrorism funding is low. I suggest this as the situation currently stands only the Bank knows from where the money has originated.  I have also asked whether a warranty to that effect can be given! I am not, needless to say, expecting a positive reply! 

David Pett - Solicitor

Know your client or face the prospect of imprisonment

The obligations placed on independent legal advisors as imposed by the Proceeds of Crime Act 2002, the Terrorism Act 200 and the Money Laundering Terrorist Financing and Transfer of Funds ( Information on Payer) Regulations 2017 ( ‘Regulations’) are far reaching, and come with some scary consequences for those who choose to ignore them.  There is no doubt that the focus of Government is now very much on making sure lawyers and other key movers in the business and financial world are not used unwittingly by criminals to further a criminal purpose.  

Money laundering and terrorist funding present a serious threat to society causing a loss of revenue and endangering life, and fuelling other criminal activity such as human trafficking.   This is very serious stuff and whether you are large or small provider of legal services covered by the Regulations, you would be extremely foolish to bury your head in the sand and do nothing. 

There is whole raft of sanctions both professional and criminal that can be imposed for failure to discharge obligations.  There is also the risk of civil action and damage to reputation and consequential  loss of business. The Regulations are complex and require more than a cursory glance.  There is no short cut.  There is need for the controllers of a business to obtain a clear and precise understanding of the requirements, and to make sure each and every member of staff shares a similar level of familiarity with the Regulations, in terms of the purpose they serve and how they are applied in practice.  This covers not only customer due diligence, which most professionals understand, but also carrying out a practice wide risk assessment, a policy for a risk based approach to assessing the risk level of each transaction retainer, the establishment of systems, polices and procedures to meet the obligations, training, reporting suspicions and the relationship between disclosure obligations and legal privilege. And that’s just for starters! 

As mentioned most lawyers have over the years got to grip with the need to carry out  customer due diligence before commencing work under a retainer.  Obtaining photographic evidence of identification and proof of address has become common place and is now often backed up by electronic  background checks to help identify politically exposed persons and the existence of financial sanctions and other restrictions.  However,  there is now much more to adopting a risk based approach to preventing money laundering.   If you are still in working in the age where a quick check on the source of funds to be used for say the purchase of a property would be sufficient, the time has now truly come to review your processes, as the emphasis has changed and changed quite dramatically.  The onus is now on ‘Knowing Your Client’.   Forget source of funds and enter the world of source of wealth investigation. 

So what does this involve?  In short, it means gathering information and documents which will help you to check that the client’s financial background fits the nature and purpose of the transaction you are handling.  This is very different from the erroneous belief that there is only a need to check the source of funds.

This difference is succinctly described in the Legal Sector Affinity Group’s draft Anti Money Laundering Guidance for the Legal Sector ( September 2017) as follows:

‘In addition, please note that source of funds is different from source of wealth. Source of funds relates to from where the client’s funds are received – a UK bank account for example. Source of wealth relates to how the client came to have the funds in question – via inheritance, house sale, or investment windfall for example. Source of wealth is fundamental to money laundering risk assessment. If you are clear about the legitimacy of a client’s source of wealth, the risk of money laundering is significantly reduced.’

In practice this places an obligation on a business to have a documented process in place to provide for the collection from each client of personal and financial information, as well as detail on the transaction.  This will include the age of the client, the client’s occupation and employer, the value of the transaction, the size of the contribution the client is making towards the purchase, the identity of the bank account(s) from which the funds are to be transferred, along with documents to substantiate the accumulation of the client’s wealth.  

Clearly without knowing more, a twenty five year old office cleaner purchasing a property for half of a million pounds without a mortgage should ring alarm bells and warrant further investigation.  There is nothing in the Proceed of Crime Act which prevents you from making normal enquiries about your clients instructions, and the proposed retainer, in order to remove concerns and to decide whether you wish to continue to act.  These enquiries will only constitute tipping off if a SAR has been made or that you are aware a money laundering investigation is underway or contemplated. 

So staying with this example, the high level of risk of proceeding with the transaction could be removed if on asking questions, it is discovered the client had recently inherited a substantial some of money.   There would be a need to obtain evidence of this, but if this was forthcoming the concern would  probably then  be  satisfactorily addressed. 

There would remain, however, a need to continue to monitor the transaction, and if keeping with the same example, you were to discover when it came to exchange of contracts that the client has transferred funds to you from a bank account which was different from the one disclosed, the level of risk could rise once again.  The concern may then turn to suspicion. Even though you do not have evidence that a money laundering offence has occurred, the suspicion may lead you to conclude that a SAR should be submitted. 

Applying a risk based approached means the level and degree of investigation will vary from one transaction to another.  There is therefore no set criteria for detecting and assessing the risk of money laundering.    If in this example, for instance, you have had no face too face contact with this client, and you find, after forwarding to you a deposit without prior request, the client decides to withdraw from the transaction without good reason, this could change the complexion of the transaction, and give rise to a concern, and probably a reportable suspicion.  

As can be seen, there is a need to be alert throughout the transaction, and to have a process in place to monitor the clients conduct, and to assess this against the background information gathered at the outset.  You need to know your client, since without this knowledge, an assessment of the risk of money laundering will simply not be possible,  with the consequence you will exposing yourself and your business to possible enforcement action. 

Remember customer due diligence per se does not constitute knowing your client. Nor is it safe to assume that as the funds to be transferred originate from a UK based account the risk of money laundering is low.  

Not only when scrutinising a clients bank account do you need to satisfy yourself on source of wealth, but you also need to be on the look out for any unusual  cash deposits which fall outside your client’s known financial standing, and which could suggest tax evasion.  You need to be wary with money or property where you suspect that either is being transferred to avoid the attention of HMRC or a law enforcement agency. 

The reality is that once you are exposed to bank statements and other financial information you do take on the responsibility for looking for any sign of criminality, and the consequential obligation to report your suspicions.  The more you dig the more responsibility is assumed.   

Here are some practical tips:

Review your initial client questionnaires and make sure these are re-designed to collect sufficient information on the client and the transaction to be able to put together a client  transaction profile.  This can then be used when checking source of wealth.  In our office this has been addressed through modifying our case management initial electronic questionnaire and producing a client profile tab. 

Make sure all of your staff, including reception and other support personnel, are made aware of the legislative requirements, and know what to look out for, and what to do if a concern arises.  All staff should be able to name your Money Laundering Reporting Officer. 

Ensure clients are made aware on your website, and in all new business communication, that they will be made the subject of these inquires, and to warn that without cooperation, there could be a delay in the completion of the transaction, and also the possibility of you having to terminate the retainer.  Don’t be afraid of telling your clients that you take your legislative responsibilities seriously.  This could also help to act as a deterrent to those who may be looking for a business to be used as a vehicle for the furtherance of criminality. 

Have a separate file to record and retain CDD results, red flags and all discussions that might take place over concerns.  Remember the importance of making sure SAR reports and associated communication are kept of the transaction file and retained separately.  This will help to avoid possible tipping off offences.  In our office all concern and discussion is recorded on a risk register within our case management systems and this is monitored centrally. 

Adopt a similar approach to where funds are to to paid by a third party.  For example, a gift.  The donor’s wealth should be scrutinised in exactly the same way. 

Don’t be put off from adopting a risk adverse policy towards financial crime.  We have decided not to accept instructions from corporate clients, those who are politically exposed, and to undertake anything other than straight forward residential transactions.  We also do not accept instructions where funds are to be transferred to us from a non UK bank account.  Nor do we transfer funds to oversee accounts. 

It may run against the grain, yet to say no to a client when you have concerns should be part and parcel of an effective AML policy.  In nearly all of the cases in which we have submitted SARs we have decided, following the granting of consent, to terminate the retainer.   Why run a risk when it is within your power to end your exposure.  

Finally, there is a good case for being over cautious, and to always report when the general consensus is that something is not quite right.  Its far better to be safe than sorry. 

As lawyers we are not trained to be criminal investigators, yet we have had imposed on us some of the most stringent regulations currently in force. The consequence is that we are now all running a very high risk of exposure to serious and career ending sanctions, and as mentioned the time to wake up and smell the coffee has without doubt arrived with some vengeance.  

MJP Conveyancing are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877067 or via email at davidp@mjpconveyancing.com

Conveyancers Duped by Million Pound Property Fraud - Was it Avoidable?

The news of a property fraud reported in the Daily Mail (http://www.dailymail.co.uk/news/article-3356929/The-thieves-stole-wife-s-house-sold-1-3million.html ) at the weekend should send a chill down the back of all conveyancers across the land. 

A young woman — who paid the full amount with no mortgage — had been duped into handing over £1.35 million to the a person purporting to be the legal owner of the property. 

The money was last seen on its way to a bank in Dubai.

The real owner was totally oblivious to the fraud until the Land Registry smelling a rat declined to register the property in the name of the young woman. 

There were two primary fraudsters.  One who took out a rental agreement on the property before the property was placed on the market, and the other who stole the identity of the real owner.  Between them they were able to fool the letting agent, the selling agent and both the selling and buying conveyancers. 

This was a fraud perpetrated at the highest level.  

So what could have been done to prevent it?  Probably not very much given the sophistication of the perpetrators. 

The question of whether negligence lies with either the seller or the buyer’s conveyancers must also be a vexed issue. 

So what lessons as conveyancers can we learn from these circumstances?

From a sale perspective there was nothing on the surface which would have alerted the seller’s conveyancer.  The ID supplied for the registered owner, that is the seller, was fake but unless it was obviously fake there was not much more one could expect the seller to do to identify the fraudulent  activity. 

Interestingly, had the seller made use of the Land Registry Alert procedure there is a possibility that the true owner would have been alerted about the proposed sale when the purchaser  undertook the OS1 search before exchange. Clearly conveyancers should all be advising buyer clients, especially the Buy To Let clients, to register for this type of alert. Failure to do so may in the future be viewed as a negligent omission. 

So what additional checks or alert factors should conveyancers as result of this incident consider?

Property of high value with no mortgage are at highest risk especially if they are rental properties. Conveyancers dealing with this type of property should perhaps check on the internet to see whether the property has been advertised for let recently.  In this case the fraudster tenant had only just taken out a rental agreement and had, which is unusual, paid the rent in cash. 

If instructed on this type property perhaps conveyancers should also look at the ID documents more closely and always arrange for the file to be referred to a senior member of staff for a second review. 

Suspicion should be heightened if the registered proprietor is abroad and there is a third party purporting to act for the owner. In this case the property had been put on the market purportedly on behalf of the owner by the person who had taken out the rental agreement.  Its unknown whether this was known to the seller’s conveyancer. 

Another alert factor is the instruction for the sale proceeds to be transferred to an account based outside of the Country.  If a conveyancer is instructed to transfer any funds abroad following a sale, there is now, I would suggest a strong, good argument  to pause and to take a more detailed look at the circumstances.  At the very least, the transfer should be referred to a Partner or other senior colleague for checking. 

So in short conveyancers acting in transactions of this type should keep a close eye on transactions involving:

• Property with high value with no mortgage of other charge 

• Property where the seller is shown as living at an address which is different from that of the property

• A seller looking to sell through an intermediary

• The transfer of funds to an account held abroad.

From a buyer's perspective perhaps there is now a case to consider raising some extra enquiries when it can be seen from the Land Registry Document that the property to be purchased is held by a registered  proprietor who is not in occupation and or which is occupied by a tenant.

Questions of this type which conveyancers may wish to  consider include:

1 Please produce from the letting agent references for the tenant and confirmation on how the rent has been paid i.e whether in cash or by cheque as well as confirmation that all standard money laundering and identity checks have been carried out on the tenant.

2 Please confirm the date on which the tenant took up occupation.

3 Please confirm that the funds to be transferred on completion are to be paid into a bank account held in the UK.  If the funds are to be paid into an account abroad please confirm that these will be held by you for 48 hours before the funds are remitted ( the reasoning here is that if the buyer turns up on completion to find the property occupied without vacant possession ) there may be some time available to prevent the funds from being remitted.  In the present case this would not have helped as the property was vacant at the time of completion.  If the buyer’s conveyancer  had known that the tenancy agreement was only granted prior to the marketing of the property and was now being sold with vacant possession then this may have rung some alarm bells. 

I am not sure whether these questions will find favour with the sellers solicitors but at the very least they may put the sellers solicitors on notice that the transaction is a high risk one and as a consequence raise the level of vigilance.

At the end of the day detection of fraud to a large extent is based on instinct and more often luck.   All practitioners can do is to ensure all the standard checks are carried out and that staff are trained on what to look out for and to remain vigilant throughout the transaction. 

MJP Conveyancing are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877067 or via email at david@mjpconveyancing.com