Bankers Duty of Confidentiality in Banker - Coursework Example

Aspects of Banking – Banker’s Duty of Confidentiality in Banker – Relationships Copyright Banks owe their s and all those who are involved with them in a meaningful relationship a duty of confidentiality that incorporates elements of agency and that of a debtor and creditor. The duty of confidentiality is a legal as well as a moral duty and may be considered in professional or contractual terms, with elements of considerations related to privacy and fundamental human rights. However, concerns associated with the harm that is capable of being inflicted on a society by organised crime and money laundering have caused the legislature to move towards a modification of the traditional view of the banker’s duty of confidentiality and this has caused some to remark that the banker’s duty of confidentiality no longer represents the cornerstone of the banker – customer relationship. This essay presents a discussion of the banker’s duty of confidentiality and a critical examination of this duty as being the cornerstone of the banker – customer relationship. Declaration I hereby certify that, except where cited in the text, this work is the result of the research carried out by the author of this study. The main content of the study which has been presented contains work that has not previously been reported anywhere. _____________________________________________ (Name and Signature of Author) July 2008 This write-up is submitted in fulfilment for the requirements related to an essay on The Banker’s Duty of Confidentiality in Banker – Customer Relationships. Biographical Sketch Acknowledgements Contents Introduction 1 The Evolution of the Banker’s Duty of Confidentiality and Banker – Customer Relationship 4 Conclusion 14 Legislation Cited 17 Cases 18 Bibliography / References 20 (This page intentionally blank) Introduction Individuals now maintain bank accounts as a matter of necessity and credit card transactions as well as the use of cheques and debit cards for payments of goods and services are an accepted part of life. Financial transactions in which banks act as intermediaries have resulted in vast amounts of data and it is possible for this information to be used to compile detailed knowledge about an individual. 1 Identity fraud, criminal access to details that are private, government surveillance and use of financial information to the detriment of an individual are possibilities that open up if banking and financial privacy is compromised. However, it is also necessary that efforts are made to try to contain criminals who hurt the society, in addition to trying to protect the individual. Proceeds of crime move through the financial system and those who own such funds try to make these funds untraceable. It is possible for the drug trafficker, the fraudster, the gangster, the tyrant as well as the tax evader to use the shield of confidentiality to try to hide the movement of their ill - gotten gains. 2 Thus, law enforcement agencies must have access to financial information in order to act against crime and criminals if reasonable grounds for suspicion do exist. Although the meaning of bank confidentiality is widely understood, no single explicit definition of bank confidentiality has evolved internationally. Various societies have attempted to balance the competing requirements related to confidentiality and disclosure somewhat differently. 3 The Banking Act 1987 and the Data Protection Act 1998 do provide a certain regulation for the banker’s duty of confidentiality in the United Kingdom, but it is case law that has provided the greatest guidance for this duty. A duty of care is owed by a bank to those who have a special working relationship with it, even if a bank account does not exist and this is demonstrated by the court decisions in Great Western Railway v London and County Banking Co. (1901) AC 414 and Woods v Martins Bank Ltd, 9(1958) 1 QBD 55. 4 A banker is required to advice with reasonable care and skill. However, the duty of confidentiality is an added obligation that is enunciated by the Court of Appeal decision in Tournier v National Provincial and Union Bank of England [1924] 1 KB 461, but the duty of disclosure in response to legal orders has been dealt with in Barclays Bank Plc v. Taylor [1989] 1 W.L.R. 1066. 5 6 Thus, the prevailing legal thinking in English Law is that a banker owes a legal duty of confidentiality to customers because disclosure can result in loss. However, compulsion by law related to prevention of crime or government regulation, duty to the public, customer’s consent and the interests of the bank in legal proceedings may require disclosure. 7 Organised crime and money laundering has forced government to impinge upon a banker’s duty of confidentiality. This essay presents a discussion about the evolution in contemporary thinking related to the banker’s duty of confidentiality. The Evolution of the Banker’s Duty of Confidentiality and Banker – Customer Relationship The rules of banking are a mixture of customs, regulations and laws that are dynamic in form and which may be derived from other general laws, such as the law of contract. Statute law emanates from legislation and court decisions interpret these laws. Customs and practice that are prevalent in banking practice are usually accepted by courts as regulations and banking codes are a form of self – regulation that set out the governing principles for a bank. Thus, contemporary thinking about confidentiality in banker – customer relationship is the result of the combination of the previously mentioned sources that impinge on banking practice and although customs and prevalent bank practice were to provide an impetus for banking confidentiality, the earliest mention of a banker’s duty of confidentiality as a case law is presented in Tassel v. Cooper, 9 C. B. 509 (1850). 8 The judgement in the previously mentioned case clearly indicated that English Law courts require exclusive recognition of the depositor, despite any superior claims by a third party. 9 It is clear that banks owed a duty to the depositor, but the assignee for a depositor or an actual or proposed assignee of the bank could be disclosed information. Obviously, a depositor must have consented to accepting an assignee and it was important that an unreasonable time must not have elapsed since the depositor’s consent. It has to be appreciated that a bank owes a duty to a depositor to honour the depositor’s orders, but a bank is also obliged to inquire into the regularity of issues related to a depositor. The first banking secrecy statute was enacted by Switzerland in the early 1930s in response to a requirement for German Jews to use banks in Switzerland to transfer their assets and a desire by the then Nazi government in Germany to elicit banking information from Swiss banks. 10 Bank confidentiality may be considered in terms of a contractual obligation, such as in the Netherlands, or it may be regarded as being a professional obligation. It is also possible to consider a banker’s duty of confidentiality in terms of a right to personal privacy, as in the United States. Thus, in some countries, such as Switzerland, Luxembourg and the offshore bank heavens, unauthorised disclosure carries a criminal penalty, while in others unwarranted disclosure is considered in terms of civil damages. European Community Directives require that bank secrecy be lifted if a requirement exists to ‘get to know customers’ and to report large or suspicious transactions. Criminals use highly sophisticated techniques to launder money and thus, it is difficult to exactly define suspicion in connection with financial transactions. 11 Placement involves movement of proceeds of crime to a place in a form that is less suspicious to enforcement agencies and convenient for criminals. Multiple complex transactions, such as wire transfers and the use of financial instruments try to obscure the trail and this process is known as layering. The final process is integration in which criminals try to convert proceeds into what appears as legitimate business earnings. Thus, if account activities are noticed as being rather odd, then such suspicious activities are required to be reported by bankers to law enforcement agencies. In the relatively recent past, the duty of confidentiality that is owed by a bank to its customers was clarified in Tournier v National Provincial and Union Bank of England [1924] 1 KB 46. 12 13 The judgement in the previously mentioned case clearly points to the fact that a duty of confidentiality is binding on a bank unless one of the following exceptions can be clearly demonstrated: The law compels a bank to disclose information about a depositor. A public duty is owed by a bank to disclose information. The interests of a bank compel the bank to disclose. The consent of a customer removes any hindrance on a bank for disclosure. Although customs related to banking and customary banking practices may have been such as to permit routine exchange of information about depositors, it has been ruled by the Court of Appeal in Turner v Royal Bank of Scotland Plc [1999] 2 All E.R. (Comm) 664; [1999] that such customs amounting to a private arrangement between banks which may have been concealed from customers amounted to a breach of confidentiality unless express consent had been sought from customers. 14 Thus, it can be inferred that banking practices are required to be such that they do not inadvertently compromise a banker’s duty for confidentiality and that a customer is required to provide his consent for any disclosure. From the previous discussion it can be inferred that a certain emphasis has existed in legal thinking about the seriousness of a banker’s duty of confidentiality that is owed to its customers. However, in the Jack Committee’s report on banking law and practice a whole chapter is devoted to the banker’s duty of confidentiality and the report mentions that customers may be forgiven for wondering if the duty of confidentiality has not been replaced by a duty to disclose. 15 The previously mentioned report lists twenty statutes in the United Kingdom that permitted the government to access information related to accounts and which encouraged banks to disclose suspicious information. An example that had been cited in the Jack Committee’s report is the section 98 (1) of the Criminal Justice Act and another important example is the Financial Services Act 1986, s 177. 16 Thus, it can be inferred that although a banker’s duty of confidentiality is still required to be taken seriously in commercial dealings with the public and in dealings with other financial institutions, the requirement for reporting to government authorities has been strengthened and new legislation has continued to improve disclosure requirements in the interest of fighting crime. After all, if a banker’s duty of confidentiality is an implied contractual, obligation, then the legislature can override the obligation by statute law. In English Law, compulsion by law refers to the powers that are available to the law enforcement agencies to apply to a Royal Court to require that certain information about parties be disclosed. Also, suspicious activity related to crime is required to be reported and financial services or tax supervision may require disclosure. A duty to the public to disclose is owed when disclosure is in the wider public interest and as an example, during war it may be in the public interest to disclose transactions that may have been carried out by enemy agents. It may be in the interest of a bank to disclose information of a confidential nature to a Royal Court when, for example, a dispute with a client may require a resort to litigation and the banker may be required to produce evidence. However, it has to be appreciated that disclosure in the interest of a bank has to be exercised with care because such disclosure is subject to scrutiny. Written consent by a customer may require disclosure, when it is in the interest of the customer to do so and as an example, a customer may want a bank to provide a financial reference or a bank guarantee. 17 18 The Proceeds of Crime Act 2002 makes it an offence to conceal, disguise, convert, transfer and remove criminal prosperity from the United Kingdom and section 330 makes it an offence for a person who is associated with the regulated sector and has knowledge of money laundering not to report such activity. An exception applies to those who have reasonable grounds for not reporting such activity, who have not been trained to identify money laundering activities or who are professional legal advisors with privileged knowledge. Thus, a banker will be compelled to report suspicious activity in connection with a customer’s accounts related to money laundering to the authorities and this means that a banker cannot assist customers in criminal acts. Thus, although bankers are required to provide a duty of confidentiality to customers, they are required to disclose criminal activity to the law enforcement authorities. However, nothing in the law requires such disclosure to be made public and disclosure is only required to be made to law enforcement officers who are also required to consider the requirements of Article 8 of the European Convention on Human Rights which deals with personal privacy. A fair balance has to be maintained between the interests of the individual and those of the community and this is known as the principle of proportionality. 19 A Suspicious Activity Report, or SAR, is likely to be made when a bank or a banker discovers something suspicious in connection with the financial dealings of a depositor. In the United Kingdom, it is the Serious Organised Crime Agency, or SOCA, which is an intelligence - led agency that accepts and investigates information provided by SARs that are submitted to it. SOCA has law enforcement powers and this agency is an Executive Non – Departmental Public Body that is supported by the Home Office, but independent from this government department. The board of SOCA is appointed by the Home Secretary and its priority objectives are drug related crime, organised immigration crime, individual and private sector fraud and other organised crime. 20 There is nothing very unusual about having an agency that has the power to gather intelligence about organised crime or money laundering. However, it is possible for almost anyone, including private individuals, attorneys, bank employees or those associated with financial services industry etc to open an account on the SOCA website and to present a SAR for investigation. Thus, any bank employee with or without the consent of the bank’s management can submit a SAR, even anonymously from a fictitious email for consideration by the relevant authorities. However, it has to be appreciated that such possibilities had also existed prior to the coming into being of SOCA and although the Internet has increased the capacity of organised crime to generate funds from criminal activities, it has also vastly enhanced the powers of the intelligence agencies to receive intelligence about criminal activities. Consent SAR refers to those financial transactions that are suspicious, but which have been consented to by a bank or a financial services agency and a nominated officer. 21 Non – consent SAR are those activities which have not been carried out but which are suspicious. A considerable burden has now been imposed on banks, bankers and those involved with the financial services to report those activities and transactions that are suspicious and if they fail to do so, then their colleagues or others who may have knowledge can report easily to the SOCAS. 22 This means that an attempt has been made to try to create a regime in which any suspicious financial transactions of any individual or legal entity are likely to be immediately available to the law enforcement agencies of the government and thus, the government is privy to all of the suspicious financial affairs of an individual. Thus, it can be concluded that in the legislative and societal environment that has been created, the banker does not owe a duty of confidentiality to a customer when reporting to the government about suspicious financial transactions is concerned because individuals with information now have the means and the compulsion to report. Despite what has been said about the SOCAS and the SAR regime in the previous discussion, it has to be appreciated that although in the present day and age, a banker has a greater obligation to report to the government under a compulsion in law, bankers are not under a greater obligation to divulge confidential information regarding a depositor to any other party. Thus, it cannot be said that the confidentiality is no longer the cornerstone of banker – client relationship, because it is unlikely that any individual or legal entity will even want to come near a bank which divulges confidential information to anyone other but the government under compulsion. The legal protection that was available to depositors against disclosures by bankers has neither been removed and nor is it diminished in any way, except that the legislature has introduced new statutes that enhance the level of compulsion on the banker to report suspicious criminal activity. Thus, it is still illegal for a banker not to act in good faith and to either compromise the honour or reputation of a depositor or to cause them a commercial loss. However, a bank can be subjected to a legal sanction or punishment if it is obliged to report a suspicious transaction, but it does not do so and the SAR regime is a part of the prevention component of the anti – money laundering regime. 23 It has to be understood that under the present SAR regime, it is impossible for a banker to assist in criminal activity because if the internal controls of a bank do not detect the actions of a bank officer, then any investigation that is undertaken as a result of a SAR will result in a criminal implication of the concerned bankers who are likely to be prosecuted for their actions. However, it is up to the government agencies to properly deal with the SAR about individuals and legal entities that are transmitted to them and this means that law enforcement agency working procedures and regulation as well as the statues under which they operate have to be crafted in a manner that will provide adequate safeguards for the protection of fundamental rights that are enshrined in the European Convention of Human Rights. 24 25 It is clear that the nearly all of the Western world and the United Kingdom as well as Europe are strongly committed to the maintenance of the fundamental rights. Thus, it is unlikely that any SAR information that is transmitted to the government agencies will be unfairly treated because the legislature, the judiciary and the society at large is likely to be unwilling to let this happen. After all it is democracy and democratic traditions that have brought about a change and a greater will now exists for interdicting organised crime. Thus, it can only be expected that the same traditions will maintain a requirement for confidentiality by the banker in all maters except the interdiction of crime. Conclusion It is clear from the previous discussion that a much stronger compulsion now exists for the banker to report suspicious activity in relation to a depositor to the concerned law enforcement agencies and the means for doing this are much streamlined. However, confidentiality is still important in the banker – customer relationship. Apart from a stronger compulsion to disclose to the authorities in the interest of tackling organised crime, all the safeguards to protect any damage to a depositor from irresponsible disclosure are still intact and the societal and customary expectations still demand that the banker continue to have a high regard for the confidentiality of matters related to a depositor and the privacy of customers. Thus, although the banker’s duty of confidentiality is not the sole determinant of cordial and beneficial banker – customer relationships, it is nevertheless important and a depositor is correct in expecting the best from their banker in this regard. (This page intentionally blank) Legislation Cited 1. EU Council Directive 77/780 , Art.12 2. EU Council Directive 77/780, Art.12 3. Proceeds of Crime Act 2002 4. Treaty of Rome 1957 , Art.177 5. Treaty of Rome 1957, Art.177 6. UK Banking Act 1987 7. UK Criminal Justice Act 1993 8. UK Data Protection Act 1998 9. UK Money Laundering Regulations 1993 10. UK Police and Criminal Evidence Act 1984 11. UK Proceeds of Crime Act 2002 12. Financial Services Act 1986 13. Wet Toezicht Kredietwezen (Banking Act 1978 s.46(1) Cases United Kingdom 1. Christofi v Barclays Bank Plc. [2000] 1 W.L.R. 937; [1999] 4 All E.R. 437; [1999] 2 All E.R. (Comm) 417; [1999] Lloyds Rep. Bank. 469; [2000] 1 F.L.R. 163; [1999] B.P.I.R. 855; [2000] Fam. Law 161; (1999) 96(29) L.S.G. 29; Times, July 1, 1999. 2. El Jawhary v Bank of Credit and Commerce International SA (No.2) Adham v Bank of Credit and Commerce International SA (No.2). [1995] 2 B.C.L.C. 581 3. Elli Christofi v Barclays Bank Plc CHANI 98/1489/3 Court of Appeal (Civil Division) 28 June 1999, 1999 WL 477326. 4. Great Western Railway v London and County Banking Co. (1901) AC 414 5. Robertson v Canadian Imperial Bank of Commerce Privy Council (St Vincent and the Grenadines) 06 October 1994. [1994] 1 W.L.R. 1493; [1995] 1 All E.R. 824; [1995] E.C.C. 338; (1994) 91(41) L.S.G. 39; (1994) 138 S.J.L.B. 211; Times, November16, 1994 6. Tassel v. Cooper, 9 C. B. 509 (1850) 7. Tournier v National Provincial and Union Bank of England [1924] 1 KB 46 8. Turner v Royal Bank of Scotland Plc. [1999] 2 All E.R. (Comm) 664; [1999] Lloyds Rep. Bank. 231; (1999) 96(18) L.S.G. 33; (1999) 143 S.J.L.B. 123; Times, April 17,1999 9. Woods v Martins Bank Ltd, 9(1958) 1 QBD 55 European Union 1. 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