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The Matheson AML Toolkit

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The Matheson AML Toolkit Anti-Money Laundering & Terrorist Financing Framework October 2019 The Matheson AML Toolkit www.matheson.com Contents 1 Introduction 1 2 Consolidated version of the Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2010 (“2010 Act”) incorporating the changes brought about by the Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2018 ( “2018 Act”) 2 3 Mark-up of the Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2010 (“2010 Act”) incorporating the changes brought about by the Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2018 ( “2018 Act”) 122 4 Highlights of the key changes to the 2010 Act brought about by the Act 2018 236 5 Section 108A of the 2010 Act - Schedule 2 Firms 238 6 Overview of the Joint Committee Guidelines on Money Laundering and Risk Factors- “The Risk Factor Guidelines” 249 7 Analysis and commentary on the Central Bank of Ireland’s new Anti-Money Laundering and Countering the Financing of Terrorism Guidelines for the Financial Sector 250 8 Commentary on the General Scheme of the Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Bill 2019 323 9 Overview of the European Commission’s communication package of four reports intended to support European and National Authorities in addressing money laundering and terrorist financing risks 324 10 The Continuing Evolution of AML- A Timeline 326 Introduction 26 November 2018 saw the long awaited commencement of the Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2018 (“2018 Act”). The 2018 Act transposes the Fourth EU Money Laundering Directive into Irish Law by amending the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (and the Criminal Justice Act 2013) ( “2010 Act”) and represents the most up to date position in respect of Anti-Money Laundering (“AML”) and Terrorist Financing in Ireland. The Central Bank of Ireland (“CBI”) released its finalised Anti-Money Laundering and Countering the Financing of Terrorism Guidelines for the Financial Sector on 6 September 2019. These Guidelines have replaced the 2012 Financial Service Industry Guidelines and take account of the changes to Irish law made by the 2018 Act. Matheson recognises the significance of these changes for both our existing and newly impacted clients and have produced The Matheson AML Toolkit to assist you in navigating through these changes and what they mean for your firm. We have taken the following approach to The Matheson AML Toolkit: 1. we have prepared a consolidated version of the 2010 Act reflecting the changes to same brought about by the 2018 Act. This can be viewed as a clean document or as a marked up version which enables you to see, at a glance, the changes to the impacted sections; 2. we have included a “Highlights” document which details some of the key changes brought about by the 2018 Act which Matheson believes our clients should be aware of; 3. we take a more in depth look into Section 108A and Schedule 2 Firms and what it means for our heretofore unregulated clients – the registration process, the obligations which must be met along with an analysis on same; we have also included the CBI Schedule 2 Registration Guidance for Anti-Money Laundering; 4. we provide an overview of the Joint Committee Guidelines on Money Laundering and Risk Factors- “The Risk Factor Guidelines”; 5. we provide an analysis of the finalised Anti-Money Laundering and Countering the Financing of Terrorism Guidelines for the Financial Sector as released on 6 September 2019; 6. w e briefly consider the General Scheme of the Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Bill 2019 (“2019 Bill”) published by the Department of Justice. The 2019 Bill is intended to transpose the Fifth EU Money Laundering Directive; 7. we provide an overview of the European Commission’s Communication package of four reports intended to support European and National Authorities in addressing Money Laundering and Terrorist Financing risks as released on 24 July 2019; and 8. finally, we include Matheson’s AML Timeline which highlights the key developments in the recent past as well as anticipated developments on the horizon in the AML space. We hope you find The Matheson AML Toolkit useful and that it becomes your go to resource for AML going forward. Should you have any queries in respect of the materials included in The Matheson AML Toolkit, please do not hesitate to contact any of your AML team. Contacts Joe Beashel Louise Dobbyn Lorna Smith Ian O’Mara PARTNER SENIOR ASSOCIATE SENIOR ASSOCIATE ASSOCIATE T: +353 1 232 2101 T: +353 1 232 2094 T : +353 1 232 3012 D: +353 1 232 2874 M: +353 86 824 4444 M: +353 83 178 3143 M: +353 83 054 9915 T: +353 1 232 2000 E: [email protected] E: [email protected] E: [email protected] E: ian.o’[email protected] This material is provided for general information purposes only and does not purport to cover every aspect of the themes and subject matter discussed, nor is it intended to provide, and does not constitute or comprise, legal or any other advice on any particular matter. © Matheson. The information in these documents is subject to the Legal Terms of Use and Liability Disclaimer contained on the Matheson website. 1 Number 6 of 2010 CRIMINAL JUSTICE (MONEY LAUNDERING AND TERRORIST FINANCING) ACT 2010 ARRANGEMENT OF SECTIONS PART 1 PRELIMINARY Section 1. Short title and commencement. 2. Interpretation. 3. Regulations. 4. Repeals and revocations. 5. Expenses. PART 2 MONEY LAUNDERING OFFENCES 6. Interpretation (Part 2). 7. Money laundering occurring in State. 8. Money laundering outside State in certain circumstances. 9. Attempts, outside State, to commit offence in State. 10. Aiding, abetting, counselling or procuring outside State commission of offence in State. 11. Presumptions and other matters. 12. Location of proceedings relating to offences committed outside State. 13. Consent of DPP required for proceedings for offences committed outside State. 2 14. Certificate may be evidence in proceedings under this Part. 15. Double jeopardy. 16. Revenue offence committed outside State. PART 3 DIRECTIONS, ORDERS AND AUTHORISATIONS RELATING TO INVESTIGATIONS 17. Direction or order not to carry out service or transaction. 18. Notice of direction or order. 19. Revocation of direction or order on application. 20. Order in relation to property subject of direction or order. 21. Cessation of direction or order on cessation of investigation. 22. Suspicious transaction report not to be disclosed. 23. Authorisation to proceed with act that would otherwise comprise money laundering. PART 4 PROVISIONS RELATING TO FINANCE SERVICES INDUSTRY, PROFESSIONAL SERVICE PROVIDERS AND OTHERS CHAPTER 1 Interpretation (Part 4) 24. Definitions. 25. Meaning of "designated person". 26. Beneficial owner in relation to bodies corporate. 27. Beneficial owner in relation to partnerships. 28. Beneficial owner in relation to trusts. 29. Beneficial owner in relation to estates of deceased persons. 30. Other persons who are beneficial owners. CHAPTER 1A Risk assessment by designated persons 30A. Business risk assessment by designated persons. 2 3 30B. Application of risk assessment in applying customer due diligence. CHAPTER 2 Designation of places other than Member States — procedures for detecting money laundering or terrorist financing 31. (Repealed) Designation of places imposing requirements equivalent to Third Money Laundering Directive. 32. (Repealed) Designation of places having inadequate procedures for detection of money laundering or terrorist financing. CHAPTER 3 Customer Due Diligence 33. Identification and verification of customers and beneficial owners. 33A. Electronic money derogation 34. (Repealed) Exemptions from section 33. 34A. Simplified customer due diligence. 35. Special measures applying to business relationships. 36. (Repealed) Exemption from section 35(1). 36A. Examination of background and purpose of certain transactions. 37. Enhanced customer due diligence — politically exposed persons. 38. Enhanced customer due diligence — correspondent banking relationships. 38A. Enhanced customer due diligence – high – risk third countries. 39. Designated person's discretion to apply additional enhanced customer due diligence measures. 40. Reliance on other persons to carry out customer due diligence. CHAPTER 3A 40A. State Financial Intelligence Unit. 40B. Powers of FIU Ireland to receive and analyse information. 40C. Power of certain members of FIU Ireland to obtain information. 40D. Power of FIU Ireland to respond to requests for information from competent authorities. 40E. Power of FIU Ireland to share information. 3 4 CHAPTER 4 Reporting of suspicious transactions and of transactions involving certain places 41. Interpretation (Chapter 4). 42. Requirement for designated persons and related persons to report suspicious transactions. 43. (Repealed) Requirement for designated persons to report transactions connected with places designated under section 32. 44. Defence — internal reporting procedures. 45. Use of reported and other information in investigations. 46. Disclosure not required in certain circumstances. 47. Disclosure not to be treated as breach. CHAPTER 5 Tipping off by designated persons 48. Interpretation (Chapter 5). 49. Tipping off. 50. Defence — disclosure to customer in case of direction or order to suspend service or transaction. 51. Defences — disclosures within undertaking or
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