Criminal Justice (Money Laundering and Terrorist Financing) Act 2010

PART 1 Preliminary

1. Short title and commencement.

1.— (1) This Act may be cited as the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010.

(2) This Act shall come into operation on such day or days as may be appointed by order or orders made by the Minister, either generally or with reference to a particular purpose or provision, and different days may be so appointed for different purposes and different provisions.

(3) An order under subsection (2) may, in respect of the repeal of the provisions of the Criminal Justice Act 1994 specified in section 4, and the revocation of the statutory instruments specified in Schedule 1 effected by section 4(2), appoint different days for the repeal of different provisions of the Criminal Justice Act 1994 and the revocation of different statutory instruments or different provisions of them.

2. Interpretation.

2.— (1) In this Act—

F1["Data Protection Regulation" means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016^38on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation);]

F2["Fourth Money Laundering Directive" means Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015^2on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC;]

F3[…]

F4["Fifth Money Laundering Directive" means Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018^1amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, and amending Directives 2009/138/EC and 2013/36/EU;]

“Minister” means the Minister for Justice, Equality and Law Reform;

“money laundering” means an offence under Part 2;

F1["personal data" means personal data within the meaning of—

(i) theData Protection Act 1988,

(ii) the Data Protection Regulation, or

(iii) Part 5 of the Data Protection Act 2018;]

“prescribed” means prescribed by the Minister by regulations made under this Act;

“property” means all real or personal property, whether or not heritable or moveable, and includes money and choses in action and any other intangible or incorporeal property;

“terrorist financing” means an offence under section 13 of the Criminal Justice (Terrorist Offences) Act 2005;

“Third Money Laundering Directive” means Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing^2, as amended by the following:

(a) Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC^3;

(b) Directive 2009/110/EC of the European Parliament and of the Council of 16 September 2009 on the taking up, pursuit and prudential supervision of the business of electronic money institutions amending Directives 2005/60/EC and 2006/48/EC and repealing Directive 2000/46/EC^4.

F5[(2) A word or expression used in this Act and also used in the Fourth Money Laundering Directive has, unless the contrary intention appears, the same meaning in this Act as in that Directive.]

F4[(3) In this Act a reference to an Appeal Tribunal shall be construed as a reference to the Appeal Tribunal established undersection 101A(inserted bysection 24of the Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021).]

3. Regulations.

3.— (1) The Minister may, after consulting with the Minister for Finance, by regulations provide for any matter referred to in this Act F6[(other thansection 106ZC(inserted by the Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021))] as prescribed or to be prescribed.

(2) Regulations under this Act may contain such incidental, supplementary and consequential provisions as appear to the Minister F6[(or, in the case of regulations undersection 106ZC, the Minister for Finance)] to be necessary or expedient for the purposes of the regulations.

(3) Every regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done under the regulation.

4. Repeals and revocations.

4.— (1) Sections 31, 32, 32A, 57(1) to (6) and (7)(a), 57A and 58(2) of the Criminal Justice Act 1994 are repealed.

(2) The statutory instruments specified in column (1) of Schedule 1 are revoked to the extent specified in column (3) of that Schedule.

5. Expenses.

5.— The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas and the expenses incurred by the Minister for Finance in the administration of this Act shall be paid out of moneys provided by the Oireachtas.

PART 2 Money Laundering Offences

6. Interpretation (Part 2).

6.— In this Part—

F7["criminal conduct" means—

(a) conduct that constitutes an offence,

(b) conduct occurring in a place outside the State that constitutes an offence under the law of the place and would constitute an offence if it were to occur in the State, or

(c) conduct occurring in a place outside the State that would constitute an offence undersection 5(1) or6(1) of the Criminal Justice (Corruption Offences) Act 2018 if it were to occur in the State and the person or official, as the case may be, concerned doing the act, or making the omission, concerned in relation to his or her office, employment, position or business is a foreign official within the meaning of that Act;]

“proceeds of criminal conduct” means any property that is derived from or obtained through criminal conduct, whether directly or indirectly, or in whole or in part, and whether that criminal conduct occurs before, on or after the commencement of this Part.

7. Money laundering occurring in State.

7.— (1) A person commits an offence if—

(a) the person engages in any of the following acts in relation to property that is the proceeds of criminal conduct:

(i) concealing or disguising the true nature, source, location, disposition, movement or ownership of the property, or any rights relating to the property;

(ii) converting, transferring, handling, acquiring, possessing or using the property;

(iii) removing the property from, or bringing the property into, the State,

and

(b) the person knows or believes (or is reckless as to whether or not) the property is the proceeds of criminal conduct.

(2) A person who attempts to commit an offence under subsection (1) commits an offence.

(3) A person who commits an offence under this section is liable—

(a) on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months (or both), or

(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 14 years (or both).

(4) A reference in this section to knowing or believing that property is the proceeds of criminal conduct includes a reference to knowing or believing that the property probably comprises the proceeds of criminal conduct.

(5) For the purposes of subsections (1) and (2), a person is reckless as to whether or not property is the proceeds of criminal conduct if the person disregards, in relation to property, a risk of such a nature and degree that, considering the circumstances in which the person carries out any act referred to in subsection (1) or (2), the disregard of that risk involves culpability of a high degree.

(6) For the purposes of subsections (1) and (2), a person handles property if the person—

(a) receives, or arranges to receive, the property, or

(b) retains, removes, disposes of or realises the property, or arranges to do any of those things, for the benefit of another person.

(7) A person does not commit an offence under this section in relation to the doing of any thing in relation to property that is the proceeds of criminal conduct so long as—

(a) the person does the thing in accordance with a direction, order or authorisation given under Part 3, or

(b) without prejudice to the generality of paragraph (a), the person is a designated person, within the meaning of Part 4, who makes a report in relation to the property, and does the thing, in accordance with section 42.

8. Money laundering outside State in certain circumstances.

8.— (1) A person who, in a place outside the State, engages in conduct that would, if the conduct occurred in the State, constitute an offence under section 7 commits an offence if any of the following circumstances apply:

(a) the conduct takes place on board an Irish ship, within the meaning of section 9 of the Mercantile Marine Act 1955,

(b) the conduct takes place on an aircraft registered in the State,

(c) the conduct constitutes an offence under the law of that place and the person is—

(i) an individual who is a citizen of Ireland or ordinarily resident in the State, or

(ii) a body corporate established under the law of the State or a company registered under the Companies Acts,

(d) a request for the person’s surrender, for the purpose of trying him or her for an offence in respect of the conduct, has been made under Part II of the Extradition Act 1965 by any country and the request has been finally refused (whether or not as a result of a decision of a court), or

(e) a F8[relevant arrest warrant] has been received from an issuing state for the purpose of bringing proceedings against the person for an offence in respect of the conduct, and a final determination has been made that—

(i) the F8[relevant arrest warrant] should not be endorsed for execution in the State under the European Arrest Warrant Act 2003, or

(ii) the person should not be surrendered to the issuing state.

(2) A person who commits an offence under this section is liable—

(a) on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months (or both), or

(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 14 years (or both).

(3) A person who has his or her principal residence in the State for the 12 months immediately preceding the commission of an offence under this section is, in a case where subsection (1)(c)applies, taken to be ordinarily resident in the State on the date of the commission of the offence.

(4) In this section, “F8[relevant arrest warrant]” and “issuing state” have the same meanings as they have in the European Arrest Warrant Act 2003.

9. Attempts, outside State, to commit offence in State.

9.— (1) A person who attempts, in a place outside the State, to commit an offence under section 7(1) is guilty of an offence.

(2) A person who commits an offence under this section is liable—

(a) on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months (or both), or

(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 14 years (or both).

10. Aiding, abetting, counselling or procuring outside State commission of offence in State.

10.— (1) A person who, in a place outside the State, aids, abets, counsels or procures the commission of an offence under section 7 is guilty of an offence.

(2) A person who commits an offence under this section is liable—

(a) on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months (or both), or

(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 14 years (or both).

(3) This section is without prejudice to section 7(1) of the Criminal Law Act 1997.

11. Presumptions and other matters.

11.— (1) In this section “specified conduct” means any of the following acts referred to in section 7(1) (including section 7(1) as applied by section 8or 9):

(a) concealing or disguising the true nature, source, location, disposition, movement or ownership of property, or any rights relating to property;

(b) converting, transferring, handling, acquiring, possessing or using property;

(c) removing property from, or bringing property into, the State or a place outside the State.

(2) In proceedings for an offence under section 7, 8 or 9, where an accused has engaged, or attempted to engage, in specified conduct in relation to property that is the proceeds of criminal conduct, in circumstances in which it is reasonable to conclude that the accused—

(a) knew or believed the property was the proceeds of criminal conduct, or

(b) was reckless as to whether or not the property was the proceeds of criminal conduct,

the accused is presumed to have so known or believed, or been so reckless, unless the court or jury, as the case may be, is satisfied, having regard to the whole of the evidence, that there is a reasonable doubt that the accused so knew or believed or was so reckless.

(3) In proceedings for an offence under section 7, 8 or 9, where an accused has engaged in, or attempted to engage in, specified conduct in relation to property in circumstances in which it is reasonable to conclude that the property is the proceeds of criminal conduct, those circumstances are evidence that the property is the proceeds of criminal conduct.

(4) For the purposes of subsection (3), circumstances in which it is reasonable to conclude that property is the proceeds of criminal conduct include any of the following:

(a) the value of the property concerned is, it is reasonable to conclude, out of proportion to the income and expenditure of the accused or another person in a case where the accused engaged in the specified conduct concerned on behalf of, or at the request of, the other person;

(b) the specified conduct concerned involves the actual or purported purchase or sale of goods or services for an amount that is, it is reasonable to conclude, out of proportion to the market value of the goods or services (whether the amount represents an overvaluation or an undervaluation);

(c) the specified conduct concerned involves one or more transactions using false names;

(d) the accused has stated that he or she engaged in the specified conduct concerned on behalf of, or at the request of, another person and has not provided information to the Garda Síochána enabling the other person to be identified and located;

(e) where an accused has concealed or disguised the true nature, source, location, disposition, movement or ownership of the property, or any rights relating to the property, the accused has no reasonable explanation for that concealment or disguise.

(5) Nothing in subsection (4) limits the circumstances in which it is reasonable to conclude, for the purposes of subsection (3), that property is the proceeds of criminal conduct.

(6) Nothing in this section prevents subsections (2) and (3) being applied in the same proceedings.

(7) Subsections (2) to (6) extend to proceedings for an offence under—

(a) section 10, or

(b) section 7(1) of the Criminal Law Act 1997 of aiding, abetting, counselling or procuring the commission of an offence under section 7, 8 or 9,

and for that purpose any reference to an accused in subsections (2) to (6) is to be construed as a reference to a person who committed, or is alleged to have committed, the offence concerned.

(8) In proceedings for an offence under this Part, or an offence under section 7(1) of the Criminal Law Act 1997 referred to in subsection (7)(b), it is not necessary, in order to prove that property is the proceeds of criminal conduct, to establish that—

(a) a particular offence or a particular class of offence comprising criminal conduct was committed in relation to the property, or

(b) a particular person committed an offence comprising criminal conduct in relation to the property.

(9) In proceedings for an offence under this Part, or an offence under section 7(1) of the Criminal Law Act 1997 referred to in subsection (7)(b), it is not a defence for the accused to show that the accused believed the property concerned to be the proceeds of a particular offence comprising criminal conduct when in fact the property was the proceeds of another offence.

12. Location of proceedings relating to offences committed outside State.

12.— Proceedings for an offence under section 8, 9 or 10 may be taken in any place in the State and the offence may for all incidental purposes be treated as having been committed in that place.

13. Consent of DPP required for proceedings for offences committed outside State.

13.— If a person is charged with an offence under section 8, 9 or 10, no further proceedings in the matter (other than any remand in custody or on bail) may be taken except by, or with the consent of, the Director of Public Prosecutions.

14. Certificate may be evidence in proceedings under this Part.

14.— (1) In any proceedings for an offence under this Part in which it is alleged that property the subject of the offence is the proceeds of criminal conduct occurring in a place outside the State, a certificate—

(a) purporting to be signed by a lawyer practising in the place, and

(b) stating that such conduct is an offence in that place,

is evidence of the matters referred to in that certificate, unless the contrary is shown.