What is Suspicion? Kevin Whelan Resident Advisor, EAG Office of Technical Assistance US Department of Treasury

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

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)

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

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

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

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

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