What is Suspicion?

1. What is Suspicion? Kevin Whelan Resident Advisor, EAG Office of Technical Assistance US Department of Treasury KWhelan@otatreas.us

3. General Definitions • An unresolved and unsubstantiated feeling of doubt • A feeling that something isn’t as it appears to be, or is supposed to be, or as it has been explained to be • The apprehension of something without proof to verify the belief • Suspicion implies a belief or opinion based upon facts or circumstances that do not constitute proof

4. UK Case Law • The Appellate Court, in ruling on an AML reporting case, said suspicion would arise when: • “there was a possibility which was more than fanciful, that the relevant facts existed. This is subject in an appropriate case, to the further requirement that the suspicion so formed should be of a settled nature”. • So … • The facts of suspicion do not need to be specific • Yet, neither the suspicion nor the explanation of circumstances should be fanciful • The suspicion itself does not need to be clear, or firmly grounded • The suspicion should not be fleeting (should be settled)

5. Context Matters • Is a man with a knife and blood on his hands suspicious? • In a hospital? • In a butcher shop? • When holding the knife in a threatening posture? • With a crazed look in his eyes? • At the scene of a robbery? • So, context and circumstances matter as much as objective facts … the two can’t be separated • But … it is nearly impossible to describe all possible circumstances a priori • This is one reason why you won’t see a single exclusive/exhaustive list of indicators

6. Suspicion is not … • Proof! • Hard evidence! • Certainty! • When you report suspicion you are not reporting a crime … you are reporting a suspicion! • If you have knowledge of a crime, you should report it to law enforcement

7. When should you be Suspicious? • Reporting entities would prefer a scientific formula or algorithm • Want to absolve themselves of the responsibility for using judgment • Are afraid of the consequences of using their judgment • However, suspicion is too dependent upon unique combinations of facts, behaviors, and circumstances • Even if a formula could be published, criminals would immediately be aware of the formula and would change their behavior • The most you can hope for are indicators and typologies • Beyond these, you will need to use your own expert judgment • Anyway, you know it when you see it! • Note: it can be determined after-the-fact that something should have been considered as suspicious • For example, this can be determined while investing financial aspects of a crime • More on this when we talk about reporting and risks

8. A Good Story? • If something could be true, if a plausible explanation exists, can it still be suspicious? • Yes! • This isn’t just about telling a believable story • It is about deciding whether the whole of the circumstances are convincing and compelling, more compelling than not, more believable than fanciful

9. Is it a Crime to be Wrong? • There is no issue of ‘wrong’ or ‘right’ when reporting a suspicion • So long as the suspicion is reported in good faith then the law affords protections to the reporting entity • It may be a crime to not report suspicions • It may be a crime to “tip off’ third parties about the fact of a report • Ideally, if the system works as designed, the subject of a report will never know of the existence of the report, even after successful prosecution • More on this later