A place of greater safety - Bowman v Fels guidance

Timon Molloy

The Court of Appeal judgment in Bowman v Fels ( www.bailii.org/ew/cases/EWCA/Civ/2005/226.html) on 8 March this year [1] prompted a collective sigh of relief from UK lawyers in the immediate belief that the sanctity of legal professional privilege had been upheld and there was no further need for suspicious activity reports on clients in order to avoid committing the 'arrangements offence' under section 328 of the Proceeds of Crime Act 2002 (POCA) [2]: "(1) A person commits an offence if he enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person." Several months on, the dust has settled, and measured consideration of the judgment by the Law Society reveals that, while it might represent stronger protection, the ruling is certainly no licence to ignore the primary money laundering offences ( sections 327-329 POCA) under the cloak of privilege. "We are still gatekeepers," noted Monty Raphael of Peters and Peters at the recent Lexis Nexis 'Proceeds of Crime' conference, "All Bowman v Fels does is remove one of the gates; it's not 'Open Sesame'." Corporate lawyers especially need to be aware, he said, that the judgment does not treat directly of transactional work.