Criminal Justice (Money Laundering and Terrorist Financing) Act 2010

• (2) It is a defence for a person charged with an offence under section 42 F116[…] to prove that the person was, at the time of the purported offence, an employee who made a report under that section, in accordance with such an internal reporting procedure, to another person.

45. Use of reported and other information in investigations.

45.— (1) Information included in a report under this Chapter may be used in an investigation into money laundering or terrorist financing or any other offence.

• (2) Nothing in this section limits the information that may be used in an investigation into any offence.

46. Disclosure not required in certain circumstances.

46.— (1) Nothing in this Chapter requires the disclosure of information that is subject to legal privilege.

• (2) Nothing in this Chapter requires a relevant professional adviser to disclose information that he or she has received from or obtained in relation to a client in the course of ascertaining the legal position of the client.

• (3) Subsection (2) does not apply to information received from or obtained in relation to a client with the intention of furthering a criminal purpose.

47. Disclosure not to be treated as breach.

47.— The disclosure of information by a person in accordance with this Chapter shall not be treated, for any purpose, as a breach of any restriction imposed by any other enactment or rule of law on disclosure by the person or any other person on whose behalf the disclosure is made.

Chapter 5 Tipping off by designated persons

48. Interpretation (Chapter 5).

48.— In this Chapter, “legal adviser” means a barrister or solicitor.

49. Tipping off.

49.— (1) A designated person who knows or suspects, on the basis of information obtained in the course of carrying on business as a designated person, that a report has been, or is required to be, made under Chapter 4 shall not make any disclosure that is likely to prejudice an investigation that may be conducted following the making of the report under that Chapter.

• (2) A designated person who knows or suspects, on the basis of information obtained by the person in the course of carrying on business as a designated person, that an investigation is being contemplated or is being carried out into whether an offence of money laundering or terrorist financing has been committed, shall not make any disclosure that is likely to prejudice the investigation.

• (3) A person who fails to comply with this section commits an offence and 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 5 years (or both).

• (4) In this section, a reference to a designated person includes a reference to any person acting, or purporting to act, on behalf of the designated person, including any agent, employee, partner, director or other officer of, or any person engaged under a contract for services with, the designated person.

50. Defence — disclosure to customer in case of direction or order to suspend service or transaction.

50.— It is a defence in any proceedings against a person (“the defendant”) for an offence under section 49, in relation to a disclosure, for the defendant to prove that—

• (a) the disclosure was to a person who, at the time of the disclosure, was a customer of the defendant or of a designated person on whose behalf the defendant made the disclosure,

• (b) the defendant, or the designated person on whose behalf the defendant made the disclosure, was directed or ordered under section 17 not to carry out any specified service or transaction in respect of the customer, and

• (c) the disclosure was solely to the effect that the defendant, or a designated person on whose behalf the defendant made the disclosure, had been directed by a member of the Garda Síochána, or ordered by a judge of the District Court, under section 17 not to carry out the service or transaction for the period specified in the direction or order.

51. Defences — disclosures within undertaking or group.

51.— (1) It is a defence in any proceedings against an individual for an offence under section 49, in relation to a disclosure, for the individual to prove that, at the time of the disclosure—

• (a) he or she was an agent, employee, partner, director or other officer of, or was engaged under a contract for services by, an undertaking, and

• (b) he or she made the disclosure to an agent, employee, partner, director or other officer of, or a person engaged under a contract for services by, the same undertaking.

• F117[(2) It is a defence in any proceedings against a person for an offence under section 49, in relation to a disclosure, for the person to prove that, at the time of the disclosure—

• (a) the person was a credit institution or financial institution or a majority-owned subsidiary, or a branch, of a credit institution or financial institution, or made the disclosure on behalf of a credit institution or a financial institution or a majority-owned subsidiary, or a branch, of a credit institution or financial institution, and

• (b) the disclosure was to—

• (i) a credit institution or financial institution incorporated in a Member State, where both the institution making the disclosure, or on whose behalf the disclosure was made, and the institution to which it was made belonged to the same group, or

• (ii) a majority-owned subsidiary or branch situated in a third country of a credit institution or financial institution incorporated in a Member State, where the subsidiary or branch was in compliance with group-wide policies and procedures adopted in accordance with section 54, or, as the case may be, Article 45 of the Fourth Money Laundering Directive.]

• (3) It is a defence in any proceedings against a person for an offence under section 49, in relation to a disclosure, for the person to prove that, at the time of the disclosure—

• (a) the person was a legal adviser or relevant professional adviser,

• (b) both the person making the disclosure and the person to whom it was made carried on business in a Member State F118[or in a country other than a high-risk third country], and

• (c) those persons performed their professional activities within different undertakings that shared common ownership, management or control.

52. Defences — other disclosures between institutions or professionals.

52.— (1) This section applies to a disclosure—

• (a) by or on behalf of a credit institution to another credit institution,

• (b) by or on behalf of a financial institution to another financial institution,

• (c) by or on behalf of a legal adviser to another legal adviser, or

• (d) by or on behalf of a relevant professional adviser of a particular kind to another relevant professional adviser of the same kind.

• (2) It is a defence in any proceedings against a person for an offence under section 49, in relation to a disclosure to which this section applies, for the person to prove that, at the time of the disclosure—

• (a) the disclosure related to—

• (i) a customer or former customer of the person (or an institution or adviser on whose behalf the person made the disclosure) and the institution or adviser to which or whom it was made, or

• (ii) a transaction, or the provision of a service, involving both the person (or an institution or adviser on whose behalf the person made the disclosure) and the institution or adviser to which or whom it was made,

• (b) the disclosure was only for the purpose of preventing money laundering or terrorist financing,

• (c) the institution or adviser to which or whom the disclosure was made was situated in a Member State or in F119[a country other than a high-risk third country], and

• (d) the institution or adviser making the disclosure, or on whose behalf the disclosure was made, and the institution or adviser to which or whom it was made were subject to equivalent duties of professional confidentiality and the protection of personal data F120[…].

• (3) A reference in this section to a customer of an adviser includes, in the case of an adviser who is a barrister, a reference to a person who is a client of a solicitor who has sought advice from the barrister for or on behalf of the client.

53. Defences — other disclosures.

53.— (1) It is a defence in any proceedings against a person for an offence under section 49, in relation to a disclosure, for the person to prove that—

• (a) the disclosure was to the authority that, at the time of the disclosure, was the competent authority responsible for monitoring that person, or for monitoring the person on whose behalf the disclosure was made, under this Part,

• (b) the disclosure was for the purpose of the detection, investigation or prosecution of an offence (whether or not in the State), or

• (c) the person did not know or suspect, at the time of the disclosure, that the disclosure was likely to have the effect of prejudicing an investigation into whether an offence of money laundering or terrorist financing had been committed.

• (2) It is a defence in any proceedings against a person for an offence under section 49, in relation to a disclosure, for the person to prove that—

• (a) at the time of the disclosure, the person was a legal adviser or relevant professional adviser,

• (b) the disclosure was to the person’s client and solely to the effect that the person would no longer provide the particular service concerned to the client,

• (c) the person no longer provided the particular service after so informing the client, and

• (d) the person made any report required in relation to the client in accordance with Chapter 4.

Chapter 6 Internal policies and procedures, training and record keeping

54. Internal policies and procedures and training.

F121[54.— (1) A designated person shall adopt internal policies, controls and procedures in relation to the designated person’s business to prevent and detect the commission of money laundering and terrorist financing.

• (2) In particular, a designated person shall adopt internal policies, controls and procedures to be followed by any persons involved in carrying out the obligations of the designated person under this Part.

• (3) The internal policies, controls and procedures referred to in subsection (1) shall include policies, controls and procedures dealing with—

• (a) the identification, assessment, mitigation and management of risk factors relating to money laundering or terrorist financing,

• (b) customer due diligence measures,

• (c) monitoring transactions and business relationships,

• (d) the identification and scrutiny of complex or large transactions, unusual patterns of transactions that have no apparent economic or visible lawful purpose and any other activity that the designated person has reasonable grounds to regard as particularly likely, by its nature to be related to money laundering or terrorist financing,

• (e) measures to be taken to prevent the use for money laundering or terrorist financing of transactions or products that could favour or facilitate anonymity,

• (f) measures to be taken to prevent the risk of money laundering or terrorist financing which may arise from technological developments including the use of new products and new practices and the manner in which services relating to such developments are delivered,

• (g) reporting (including the reporting of suspicious transactions),

• (h) record keeping,

• (i) measures to be taken to keep documents and information relating to the customers of that designated person up to date,

• (j) measures to be taken to keep documents and information relating to risk assessments by that designated person up to date,

• (k) internal systems and controls to identify emerging risks and keep business-wide risk assessments up to date, and

• (l) monitoring and managing compliance with, and the internal communication of, these policies, controls and procedures.

• (4) A designated person shall ensure that policies, controls and procedures adopted in accordance with this section are approved by senior management and shall keep such policies, controls and procedures under review, in particular when there are changes to the business profile or risk profile of the designated person.

• (5) In preparing internal policies, controls and procedures under this section, the designated person shall have regard to any guidelines on preparing, implementing and reviewing such policies and procedures that are issued by the competent authority for that designated person.

• (6) A designated person shall ensure that persons involved in the conduct of the designated person’s business are—

• (a) instructed on the law relating to money laundering and terrorist financing, and

• (b) provided with ongoing training on identifying a transaction or other activity that may be related to money laundering or terrorist financing, and on how to proceed once such a transaction or activity is identified.

• F122[(6A) A designated person shall have in place appropriate procedures for their employees, or persons in a comparable position, to report a contravention of this Act internally through a specific, independent and anonymous channel, proportionate to the nature and size of the designated person concerned.]

• (7) A designated person shall appoint an individual at management level, (to be called a "compliance officer") to monitor and manage compliance with, and the internal communication of, internal policies, controls and procedures adopted by the designated person under this section if directed in writing to do so by the competent authority for that designated person.

• (8) A designated person shall appoint a member of senior management with primary responsibility for the implementation and management of anti-money laundering measures in accordance with this Part if directed in writing to do so by the competent authority for that designated person.

• (9) A designated person shall undertake an independent, external audit to test the effectiveness of the internal policies, controls and procedures outlined in this section if directed in writing to do so by the competent authority for that designated person.

• (10) A reference in this section to persons involved in carrying out the obligations of the designated person under this Part includes a reference to directors and other officers, and employees, of the designated person.

• (11) The obligations imposed on a designated person under this section do not apply to a designated person who is an employee of another designated person.

• (12) F123[Subsections (6), (6A)], (7), (8), and (9) do not apply to a designated person who is an individual and carries on business alone as a designated person.

• (13) A competent authority shall not issue a direction for the purposes of subsection (7), (8) or (9) unless it is satisfied that, having regard to the size and nature of the designated person, it is appropriate to do so.

• (14) A competent authority may make a direction to a class of designated persons for whom it is the competent authority for the purposes of subsection (7), (8) or (9).

• (15) A designated person who fails to comply with this section commits an offence and is liable—

• (a) on summary conviction, to a class A fine 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 5 years (or both).]

55. Keeping of records by designated persons.

55.— (1) A designated person shall keep records evidencing the procedures applied, and information obtained, by the designated person under Chapter 3 in relation to—

• (a) each customer, and

• (b) in the case of a designated person to whom section 38 applies, each F124[correspondent relationship].

• (2) Without prejudice to the generality of subsection (1), a designated person shall take the original or a copy of all documents used by the designated person for the purposes of Chapter 3, including all documents used to verify the identity of customers F125[(including information from relevant trust services as set out in the Electronic Identification Regulation)] or beneficial owners in accordance with section 33.

• (3) A designated person shall keep records evidencing the history of services and transactions carried out in relation to each customer of the designated person.

• (4) F124[Subject to subsections (4A), (4B) and (4C), the documents and other records] referred to in subsections (1) to (3) F126[shall be retained by the designated person] for a period of not less than 5 years after—

• (a) in the case of a record referred to in subsection (1)(a), the date on which the designated person ceases to provide any service to the customer concerned or the date of the last transaction (if any) with the customer, whichever is the later,

• (b) in the case of a record referred to in subsection (1) (b), the date on which the F124[correspondent relationship] concerned ends,

• (c) in the case of a record referred to in subsection (3) evidencing the carrying out of a particular transaction by the designated person with, for or on behalf of the customer (other than a record to which paragraph (d) applies), the date on which the particular transaction is completed or discontinued,

• (d) in the case of a record referred to in subsection (3) evidencing the carrying out of a particular occasional transaction comprised of a series of transactions, with, for or on behalf of a customer, the date on which the series of transactions is completed or discontinued, or

• (e) in the case of a record referred to in subsection (3) evidencing the carrying out of a particular service for or on behalf of the customer (other than a record to which paragraph (c) or (d) applies), the date on which the particular service is completed or discontinued.

• F127[(4A) Where a member of the Garda Síochána not below the rank of Sergeant having carried out a thorough assessment of the necessity and proportionality of further retention is satisfied—

• (a) that certain documents or records, or documents or records relating to a certain business relationship or occasional transaction, are required for the purposes of an investigation related to money laundering or terrorist financing, or

• (b) notwithstanding the fact that a decision to institute proceedings against a person may not have been taken, that the documents or records are likely to be required for the prosecution of an offence of money laundering or terrorist financing,

the member may give a direction in writing to a designated person to retain the documents and other records for a period, up to a maximum of 5 years, additional to the period referred to in subsection (4).

• (4B) Where a direction has been given to a designated person in accordance with subsection (4A) and neither paragraph (a) nor (b) of that subsection continue to apply a member of the Garda Síochána shall, as soon as practicable, notify the designated person to whom the direction was given of that fact and the direction shall expire on the date of that notification.

• (4C) A designated person who is given a direction under subsection (4A) shall retain the documents or records specified in the direction until the earlier of—

• (a) the expiration of the additional period specified in the direction, and

• (b) the expiration of the direction.]

• (5) Subsection (4)(a) extends to any record that was required to be retained under section 32(9)(a) of the Act of 1994 immediately before the repeal of that provision by this Act.

• (6) Subsection (4)(c) to (e) extends to any record that was required to be retained under section 32(9)(b) of the Criminal Justice Act 1994 immediately before the repeal of that provision by this Act and for that purpose—

• (a) a reference in subsection (4)(c) to (e) to a record referred to in subsection (3) includes a reference to such a record, and

• (b) a reference in subsection (4)(d) to an occasional transaction comprised of a series of transactions includes a reference to a series of transactions referred to in section 32(3)(b) of the Criminal Justice Act 1994.

• (7) A designated person may keep the records referred to in subsections (1) to (6) wholly or partly in an electronic, mechanical or other non-written form only if they are capable of being reproduced in a written form.

• F128[(7A) The records required to be kept by a designated person under this section may be kept outside the State provided that the designated person ensures that those records are produced in the State to—

• (a) a member of the Garda Síochána,

• (b) an authorised officer appointed under section 72,

• (c) a relevant authorised officer within the meaning of section 103, or

• (d) a person to whom the designated person is required to produce such records in relation to his or her business, trade or profession,

as soon as practicable after the records concerned are requested, or where the obligation to produce the records arises under an order of a court made under section 63 of the Criminal Justice Act 1994, within the period which applies to such production under the court order concerned.]

• F127[(7B) Upon the expiry of the retention periods referred to in this section a designated person shall ensure that any personal data contained in any document or other record retained solely for the purposes of this section is deleted.]

• (8) The requirements imposed by this section are in addition to, and not in substitution for, any other requirements imposed by any other enactment or rule of law with respect to the keeping and retention of records by a designated person.

• (9) The obligations that are imposed on a designated person under this section continue to apply to a person who has been a designated person, but has ceased to carry on business as a designated person.

• (10) A requirement for a designated person that is a body corporate to retain any record under this section extends to any body corporate that is a successor to, or a continuation of, the body corporate.

• (11) The Minister may make regulations prescribing requirements relating to the retention of records referred to in this section of a body corporate that is wound up or a partnership that is dissolved.

• (12) A designated person who fails to comply with this section commits an offence and 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 5 years (or both).

Chapter 7 Special provisions applying to credit and financial institutions

56. Measures for retrieval of information relating to business relationships.

56.—(1) A F129[…] designated person shall have systems in place to enable it to respond fully and promptly to enquiries from the Garda Síochána—

• (a) as to whether or not it has, or has had, a business relationship, within the previous F130[5 years], with a person specified by the Garda Síochána, and

• (b) the nature of any such relationship with that person.

• (2) F130[A designated person who] fails to comply with this section commits an offence and 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 5 years (or both).

57. F131[Group-wide policies and procedures

57.— (1) A designated person that is part of a group shall implement group-wide policies and procedures, including data protection policies and policies and procedures for sharing information within the group, for the purposes of carrying out customer due diligence and preventing and detecting the commission of money laundering and terrorist financing.

• (2) A designated person incorporated in the State that operates a branch, majority-owned subsidiary or establishment in a place other than the State shall ensure that the branch, majority-owned subsidiary or establishment adopts and applies group-wide policies and procedures referred to in subsection (1).

• (3) Where a place referred to in subsection (2), other than a Member State, is a place that does not permit the implementation of the policies and procedures required under subsection (1) the designated person shall—

• (a) ensure that each of its branches and majority-owned subsidiaries in that place applies additional measures to effectively handle the risk of money laundering or terrorist financing, and

• (b) notify the competent authority for that designated person of the additional measures applied under paragraph (a).

• (4) A designated person incorporated in the State that operates a branch, majority-owned subsidiary or establishment in another Member State shall ensure that the branch, majority-owned subsidiary or establishment complies with the requirements of the Fourth Money Laundering Directive as they apply in that Member State.

• (5) A designated person incorporated in the State that has a branch or majority-owned subsidiary located in a place, other than a Member State, in which the minimum requirements relating to the prevention and detection of money laundering and terrorist financing are less strict than those of the State shall ensure that the branch or majority-owned subsidiary implement the requirements of the State, including requirements relating to data protection, to the extent that the third country’s law so allows.

• (6) Subject to section 49, a designated person that is part of a group that makes a report under section 42 shall share that report within the group for the purposes of preventing and detecting the commission of money laundering and terrorist financing unless otherwise instructed by FIU Ireland.

• (7) A designated person that fails to comply with this section commits an offence and is liable—

• (a) on summary conviction, to a class A fine 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 5 years (or both).]

57A. F132[Additional measures where implementation of policies and procedures is not possible

57A.— (1) Where a competent authority receives a notification under section 57(3)(b) and is not satisfied that the additional measures applied in accordance with that subsection are sufficient for the purposes of carrying out customer due diligence and preventing and detecting the commission of money laundering and terrorist financing it shall exercise additional supervisory actions, where necessary requesting a group to close down its operations in the third country and may, by notice in writing, direct the designated person to take such additional actions as the competent authority considers necessary to mitigate the risk of money laundering or terrorist financing.

• (2) A notice under subsection (1)—

• (a) may direct the group—

• (i) not to establish a business relationship,

• (ii) to terminate a business relationship, or

• (iii) not to undertake a transaction,

and

• (b) shall specify the matters which, in the opinion of the competent authority, give rise to the risk of money laundering or terrorist financing and in respect of which the additional measures taken are insufficient.

• (3) A notice under subsection (1) shall take effect—

• (a) where the notice so declares, immediately the notice is received by the person on whom it is served,

• (b) in any other case—

• (i) where no appeal is taken against the notice, on the expiration of the period during which such an appeal may be taken or the day specified in the notice as the day on which it is to come into effect, whichever is the later, or

• (ii) in case such an appeal is taken, on the day next following the day on which the notice is confirmed on appeal or the appeal is withdrawn or the day specified in the notice as that on which it is to come into effect, whichever is the later.

• (4) A designated person that is aggrieved by a notice may, within the period of 30 days beginning on the day on which the notice is served, appeal against the notice to the High Court and in determining the appeal the court may—

• (a) if the court is satisfied that in the circumstances of the case it is reasonable to do so, confirm the notice, with or without modification, or

• (b) cancel the notice.

• (5) The bringing of an appeal against a notice which is to take effect in accordance with subsection (3)(a) shall not have the effect of suspending the operation of the notice, but the appellant may apply to the court to have the operation of the notice suspended until the appeal is disposed of and, on such application, the court may, if it thinks proper to do so, direct that the operation of the notice be suspended until the appeal is disposed of.

• (6) Where on the hearing of an appeal under this section a notice is confirmed the High Court may, on the application of the appellant, suspend the operation of the notice for such period as in the circumstances of the case the High Court considers appropriate.

• (7) A person who appeals under subsection (4) against a notice or who applies for a direction suspending the application of the notice under subsection (6) shall at the same time notify the competent authority concerned of the appeal or the application and the grounds for the appeal or the application and the competent authority shall be entitled to appear, be heard and adduce evidence on the hearing of the appeal or the application.

• (8) A designated person that fails to comply with a direction made by the competent authority for that designated person under subsection (1) commits an offence and is liable—

• (a) on summary conviction, to a class A fine 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 5 years (or both).

• (9) A competent authority may, by notice in writing to the designated person concerned, vary or revoke a notice under subsection (1).]

58. Anonymous accounts.

58.— (1) A credit institution or financial institution shall not set up an anonymous account for, or provide an F133[anonymous passbook or safe-deposit box] to, any customer.

• (2) A credit institution or financial institution shall not keep any anonymous account, or F133[anonymous passbook or safe-deposit box], that was in existence immediately before the commencement of this section for any customer.

• (3) A credit institution or financial institution that fails to comply with this section commits an offence and 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 5 years (or both).

59. Relationships between credit institutions and shell banks.

F134[59.— (1) A credit institution or financial institution shall not enter into a correspondent relationship with a shell bank.

• (2) A credit institution or financial institution that has entered into a correspondent relationship with a shell bank before the commencement of this section shall not continue that relationship.

• (3) A credit institution or financial institution shall not engage in or continue a correspondent relationship with a bank that the institution knows permits its accounts to be used by a shell bank.

• (4) A credit institution or financial institution shall apply appropriate measures to ensure that it does not enter into or continue a correspondent relationship that permits its accounts to be used by a shell bank.

• (5) A credit institution or financial institution that fails to comply with this section commits an offence and is liable—

• (a) on summary conviction, to a class A fine 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 5 years (or both).

• (6) In this section, "shell bank" means a credit institution or financial institution (or a body corporate that is engaged in activities equivalent to those of a credit institution or financial institution) that—

• (a) does not have a physical presence, involving meaningful decision-making and management, in the jurisdiction in which it is incorporated,

• (b) is not authorised to operate, and is not subject to supervision, as a credit institution, or as a financial institution, (or equivalent) in the jurisdiction in which it is incorporated, and

• (c) is not affiliated with another body corporate that—

• (i) has a physical presence, involving meaningful decision-making and management, in the jurisdiction in which it is incorporated, and

• (ii) is authorised to operate, and is subject to supervision, as a credit institution, a financial institution or an insurance undertaking, in the jurisdiction in which it is incorporated.]

Chapter 8 Monitoring of designated persons

60. Meaning of “competent authority”.

60.— (1) Subject to section 61, a reference in this Part to the competent authority for a designated person is a reference to the competent authority prescribed for the class of designated persons to which the designated person belongs.

• (2) If no such competent authority is prescribed, a reference in this Part to the competent authority is a reference to the following:

• (a) in the case of a designated person that is a credit institution or a financial institution, the F135[Central Bank of Ireland];

• (b) in the case of a designated person who is an auditor, external accountant, tax adviser or trust or company service provider—

• (i) if the person is a member of a designated accountancy body, the designated accountancy body, or

• (ii) if the person is not a member of a designated accountancy body and is a body corporate, or a body of unincorporated persons, carrying out its functions under this Part F136[through officers and members] of it who are members of a designated accountancy body, the designated accountancy body;

• (c) in the case of a designated person who is a solicitor, the Law Society of Ireland;

• F137[(d) in the case of a designated person who is a barrister, the Legal Services Regulatory Authority;]

• F138[(da) F139[…]]

• F140[(db) in the case of a designated person that is a property services provider, the Property Services Regulatory Authority;]

• (e) in the case of any designated person other than a designated person referred to in paragraph (a), (b), (c) F137[, (d) or (db)], the Minister.

• (3) The Minister may prescribe a competent authority for a class of designated persons, for the purpose of subsection (1), only if the Minister is satisfied that the competent authority is more appropriate than the competent authority specified in subsection (2) for the class of designated persons, having regard to the nature of the business activities engaged in by that class.

61. Agreements between competent authorities where more than one applicable.

61.— (1) Where there is more than one competent authority for a designated person under section 60, those competent authorities may agree that one of them will act as the competent authority for that person, and references in this Part to a competent authority are to be construed accordingly.

• (2) An agreement under this section, in relation to a designated person, takes effect when the competent authority who has agreed to act as the competent authority for the designated person gives notice, in writing, to that person.

• (3) An agreement under this section, in relation to a designated person, ceases to have effect when—

• (a) any of the parties to the agreement gives notice, in writing, to the other parties of the termination of the agreement,

• (b) the agreement expires, or

• (c) as a result of the operation of section 60(1), the competent authority who has agreed to act as the competent authority is no longer a competent authority of the person under section 60,

whichever is the earliest.

62. Meaning of “State competent authority”.

62.— (1) In this Part, a reference to a State competent authority is a reference to one of the following competent authorities:

• (a) the F143[Central Bank of Ireland];

• (b) the Minister;

• (c) such other competent authority as is prescribed.

• (2) The Minister may prescribe a competent authority as a State competent authority for the purposes of subsection (1) (c) only if—

• (a) the Minister is satisfied that the competent authority is appropriate, having regard to the functions of State competent authorities under this Part, and

• (b) the competent authority is a Minister of the Government or an officer of a particular class or description of a Department of State or is a body (not being a company) by or under an enactment.

63. General functions of competent authorities.

63.— (1) A competent authority shall effectively monitor the designated persons for whom it is a competent authority and take measures that are reasonably necessary for the purpose of securing compliance by those designated persons with the requirements specified in this Part.

• (2) The measures that are reasonably necessary include reporting to the Garda Síochána and Revenue Commissioners any knowledge or suspicion that the competent authority has that a designated person has been or is engaged in money laundering or terrorist financing.

• (3) In determining, in any particular case, whether a designated person has complied with any of the requirements specified in this Part, a competent authority shall consider whether the person is able to demonstrate to the competent authority that the requirements have been met.

• (4) A competent authority that, in the course of monitoring a designated person under this section, acquires any knowledge or forms any suspicion that another person has been or is engaged in money laundering or terrorist financing shall report that knowledge or suspicion to the Garda Síochána and Revenue Commissioners.

63A. F145[Supervision

63A.— (1) Competent authorities shall take the necessary measures to prevent persons convicted of a relevant offence from performing a management function in or being the beneficial owners of the designated persons referred to in paragraphs (c), (d) and (f) of section 25(1).

• (2) Any person performing a management function in or being the beneficial owner of the designated persons referred to in subsection (1) and who is convicted of a relevant offence must inform the relevant competent authority within 30 days of the day on which that person was convicted of the relevant offence.

• (3) Any designated person for which or in respect of which a person who is convicted of a relevant offence, performs a management function or is a beneficial owner, shall inform its competent authority of the conviction within 30 days of the date on which the designated person became aware of the conviction.

• (4) In this section “a relevant offence” means—

• (a) an offence under this Act,

• (b) an offence specified in Schedule 1 to the Criminal Justice Act 2011, or

• (c) an offence under the law of a place (other than the State), consisting of an act or omission that, if done or omitted to be done in the State, would, under the law of the State, constitute an offence under subsections (a) or (b).

• (5) A person who fails to comply with subsection (2) or (3) shall be guilty of an offence and shall be liable—

• (a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months or both, or

• (b) on conviction on indictment, to a fine not exceeding €100,000 or imprisonment for a term not exceeding 2 years or both.]

63B. F146[Co-operation with Member State competent authorities

63B.— (1) This section applies to designated persons—

• (a) which operate establishments in the State and which have their head offices in another Member State, or

• (b) which operate establishments in another Member State and which have their head offices in the State.

• (2) A competent authority for designated persons to which this section applies shall take the necessary steps—

• (a) to co-operate with Member State competent authorities in relation to the development and implementation of policies to counter money laundering and terrorist financing,

• (b) to co-ordinate activities to counter money laundering and terrorist financing with Member State competent authorities, and

• (c) to co-operate with Member State competent authorities to ensure the effective supervision of designated persons to which this section applies.

• F147[(2A) Co-operation with Member State competent authorities under this section by a competent authority may include the sharing of information which the competent authority is not prevented from disclosing by the law of the State and the provision of assistance shall not be refused on the basis that:

• (a) the request for the sharing of information or the provision of assistance is also considered to involve tax matters;

• (b) the law of the State requires the competent authority to maintain secrecy or confidentiality except in those cases where the relevant information that is sought is protected by legal privilege;

• (c) there is an inquiry, investigation or proceeding underway in the State, unless the sharing of such information or the provision of assistance would impede the inquiry, investigation or proceeding; or

• (d) the nature or status of the requesting competent authority is different from that of the competent authority of whom the request is made.]

• (3) In this section “Member State competent authority”, in relation to a Member State (other than the State), means the authority designated by that Member State to be the competent authority in that Member State for the purposes of the Fourth Money Laundering Directive.]

63C. F148[Supervision by competent authorities

63C.— Each competent authority shall—

• (a) adopt a risk-based approach to the exercise of its supervisory functions,

• (b) ensure that its employees and officers have access both at its offices and elsewhere to relevant information on the domestic and international risks of money laundering and terrorist financing which affect its own sector,

• (c) base the frequency and intensity of on-site and off-site supervision on the risk profile of designated persons, and on the risks of money laundering and terrorist financing in the State,

• (d) review, both periodically and when there are major events or developments in their management and operations, their assessment of the money laundering and terrorist financing risk profile of designated persons, including the risks of non-compliance with the provisions of this Act, and

• (e) take into account the degree of discretion allowed to the designated person, and appropriately review the risk assessments underlying this discretion, and the adequacy and implementation of its internal policies, controls and procedures.]

63D. F149[Duties of competent authorities

63D.— (1) A competent authority, other than a State competent authority, shall make arrangements to ensure that—

• (a) its supervisory functions are exercised independently of any of its other functions which do not relate to disciplinary matters,

• (b) sensitive information relating to its supervisory functions is appropriately handled within the competent authority,

• (c) it employs only persons with appropriate qualifications, integrity and professional skills to carry out the supervisory functions and maintain high professional standards, F150[including standards of confidentiality and data protection and standards addressing conflicts of interest], and

• (d) a contravention of a requirement imposed by or under this Act by a designated person it is responsible for supervising renders that person liable to effective, proportionate and dissuasive disciplinary measures under its rules.

• (2) A competent authority, other than a State competent authority, shall—

• (a) provide adequate resources to carry out the supervisory functions, and

• (b) appoint a person to monitor and manage the competent authority’s compliance with its duties under this Act.

• (3) The person appointed under subsection (2)(b) shall be responsible—

• (a) for liaison with—

• (i) another competent authority, and

• (ii) any Member State competent authority (within the meaning of section 63B),

• (b) for ensuring that the competent authority responds fully and as soon as possible to any request from an authority referred to in subsection (a)(i) or (ii) for information about any person it supervises.]

63E. F151[Reporting breaches to competent authority

63E.— (1) Each competent authority shall establish effective and reliable mechanisms to encourage the reporting of potential and actual breaches of this Act.

• (2) Each competent authority shall provide one or more secure communication channels for persons reporting the matters referred to in subsection (1).

• (3) Each competent authority shall ensure that the channels of communication referred to in subsection (2) can also be used by persons to report any threats or retaliatory or hostile actions they are subjected to for reporting suspected breaches of this Act.]

64. Application of other enactments.

64.— Nothing in this Part limits any functions that a competent authority (including a State competent authority) has under any other enactment or rule of law.

65. Annual reporting.

65.—F152[(1)] A competent authority shall include, in each annual report published by the authority, an account of the activities that it has carried out in performing its functions under this Act during the year to which the annual report relates.

• F153[(2) Where a competent authority is not a State competent authority, each annual report published by the authority shall include information regarding the measures taken by the authority to monitor compliance by designated persons with the provisions of this Part.]

66. Request to bodies to provide names, addresses and other information relating to designated persons.

66.— (1) In this section, a reference to relevant information, in relation to a person, that is held by a body is a reference to any of the following information that is held by the body:

• (a) the name, address or other contact details of the person;

• (b) any other prescribed information relating to the person.

• (2) A State competent authority may, by notice in writing, request any public body, or any body that represents, regulates or licenses, registers or otherwise authorises persons carrying on any trade, profession, business or employment, to provide the authority with any relevant information, in relation to—

• (a) any designated persons for whom the authority is a competent authority, or

• (b) any persons whom the body reasonably considers may be such designated persons.

• (3) A State competent authority may make a request under this section only in relation to information that is reasonably required by the authority to assist the authority in carrying out its functions under this Part.

• (4) Notwithstanding any other enactment or rule of law, a body that receives a request under this section shall disclose the relevant information concerned.

• (5) The Minister may prescribe information, for the purposes of subsection (1)(b), that a State competent authority may request under this section only if the Minister is satisfied that the information is appropriate, having regard to the functions of the State competent authority under this Part.

67. Direction to furnish information or documents.

67.— (1) A State competent authority may, by notice in writing, direct a designated person for whom the authority is a competent authority to provide such information or documents (or both) relating to the designated person specified in the notice.

• (2) A person who, without reasonable excuse, fails to comply with a direction under this section commits an offence and is liable, on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months (or both).

• (3) In giving a direction under this section, a State competent authority shall specify the manner in which any document or information is required to be furnished and a reasonable time by which the document or information is required to be furnished.

• (4) A person is required to furnish documents in accordance with this section only if the documents are in the person’s possession or within the person’s power to obtain lawfully.

• (5) If a person knows the whereabouts of documents to which the direction applies, the person shall furnish to the State competent authority who gave the direction a statement, verified by a statutory declaration, identifying the whereabouts of the documents. The person shall furnish the statement no later than the time by which the direction specifies that the documents are required to be furnished.

• (6) A person who, without reasonable excuse, fails to comply with subsection (5) commits an offence and is liable, on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months (or both).

• (7) If any document required to be furnished under this section is in electronic, mechanical or other form, the document shall be furnished in written form, unless the direction specifies otherwise.

• (8) A State competent authority may take copies of, or extracts from, any document furnished to the authority under this section.

68. Direction to provide explanation of documents.

68.— (1) A State competent authority may, by notice in writing, direct a designated person for whom the authority is a competent authority to furnish to the authority an explanation of any documents relating to the designated person that—

• (a) the person has furnished to the authority in complying with a direction under section 67, or

• (b) an authorised officer has lawfully removed from premises under section 77 (including as applied by section 78).

• (2) In giving a direction under this section, a State competent authority shall specify the manner in which any explanation of a document is required to be furnished and a reasonable time by which the explanation is required to be furnished.

• (3) A person who, without reasonable excuse, fails to comply with a direction under this section commits an offence and is liable, on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months (or both).

69. Purpose of direction under section 67 or 68.

69.— A State competent authority may give a direction under section 67 or 68 only in relation to information or documents reasonably required by the authority to assist the authority to perform its functions under this Part.

70. Self-incrimination (sections 67 and 68).

70.— Nothing in section 67 or 68 requires a person to comply with a direction under the section concerned to furnish any information if to do so might tend to incriminate the person.

71. F154[Directions to comply with obligations under this Part.

71.— (1) A State competent authority may, by notice in writing, direct a designated person or a class of designated persons in respect of whom the authority is the competent authority to—

• (a) discontinue, or refrain from engaging in, specified conduct that in the opinion of the authority concerned constitutes, or, if engaged in, would constitute, a breach of any specified provision of this Part, or

• (b) take specific actions or to establish specific processes or procedures that in the opinion of the authority are reasonably necessary for the purposes of complying with any specified provision of this Part.

• (2) The State competent authority shall specify in any such direction a reasonable period of time within which the person to whom it is given is required to comply with the direction.

• (3) If a designated person to whom a direction has been issued under subsection (1) fails to comply with the direction and is subsequently found guilty of an offence—

• (a) which consists of the conduct specified in the direction given under subsection (1)(a), or

• (b) which would not have been committed if the direction under subsection (1)(b) had been complied with,

the court may take the failure to comply with the direction into account as an aggravating factor in determining any sentence to be imposed on the person for the offence.]

72. Appointment of authorised officers.

72.— (1) A State competent authority may appoint employees of the authority or other persons who, in the opinion of the authority, are suitably qualified or experienced, to be authorised officers for the purpose of this Chapter.

• (2) A State competent authority may revoke any appointment made by the authority under subsection (1).

• (3) An appointment or revocation under this section shall be in writing.

• (4) A person’s appointment by a State competent authority as an authorised officer ceases—

• (a) on the revocation by the authority of the appointment,

• (b) in a case where the appointment is for a specified period, on the expiration of the period,

• (c) on the person’s resignation from the appointment, or

• (d) in a case where the person is an employee of the authority—

• (i) on the resignation of the person as an employee of the authority, or

• (ii) on the termination of the person’s employment with the authority for any other reason.

73. Warrant of appointment.

73.— (1) Every authorised officer appointed by a State competent authority shall be furnished with a warrant of appointment as an authorised officer by the State competent authority.

• (2) In the course of performing the functions of an authorised officer under this Chapter, the officer shall, if requested to do so by any person affected, produce the officer’s warrant of appointment for inspection.

74. Powers may only be exercised for assisting State competent authority.

74.— An authorised officer may exercise powers as an authorised officer under this Chapter only for the purpose of assisting the State competent authority that appointed the authorised officer in the performance of the authority’s functions under this Part.

75. General power of authorised officers to enter premises.

75.— (1) An authorised officer may enter any premises at which the authorised officer reasonably believes that the business of a designated person has been or is carried on.

• (2) An authorised officer may enter any premises at which the authorised officer reasonably believes records or other documents relating to the business of a designated person are located.

• (3) An authorised officer may enter premises under subsection (1) or (2)—

• (a) in a case where the authorised officer reasonably believes that the business of a designated person is carried on at the premises (as referred to in subsection (1)), at any time during which the authorised officer reasonably believes that the business is being carried on there, or

• (b) in any other case, at any reasonable time.

76. Entry into residential premises only with permission or warrant.

76.— Nothing in this Chapter shall be construed as empowering an authorised officer to enter any dwelling without the permission of the occupier or the authority of a warrant under section 78.

77. Power of authorised officers to do things at premises.

77.— (1) An authorised officer may, at any premises lawfully entered by the officer, do any of the following:

• (a) inspect the premises;

• (b) request any person on the premises who apparently has control of, or access to, records or other documents that relate to the business of a designated person (being a designated person whose competent authority is the State competent authority who appointed the authorised officer)—

• (i) to produce the documents for inspection, and

• (ii) if any of those documents are in an electronic, mechanical or other form, to reproduce the document in a written form;

• (c) inspect documents produced or reproduced in accordance with such a request or found in the course of inspecting the premises;

• (d) take copies of those documents or of any part of them (including, in the case of a document in an electronic, mechanical or other form, a copy of the document in a written form);

• (e) request any person at the premises who appears to the authorised person to have information relating to the documents, or to the business of the designated person, to answer questions with respect to the documents or that business;

• (f) remove and retain the documents (including in the case of a document in an electronic, mechanical or other form, a copy of the information in a written form) for the period reasonably required for further examination;

• (g) request a person who has charge of, operates or is concerned in the operation of data equipment, including any person who has operated that equipment, to give the officer all reasonable assistance in relation to the operation of the equipment or access to the data stored within it;

• (h) secure, for later inspection, the premises or part of the premises at which the authorised officer reasonably believes records or other documents relating to the business of the designated person are located.

• (2) A person to whom a request is made in accordance with subsection (1) shall—

• (a) comply with the request so far as it is possible to do so, and

• (b) give such other assistance and information to the authorised officer with respect to the business of the designated person concerned as is reasonable in the circumstances.

• (3) A reference in this section to data equipment includes a reference to any associated apparatus.

• (4) A reference in this section to a person who operates or has operated data equipment includes a reference to a person on whose behalf data equipment is operated or has been operated.

78. Entry to premises and doing of things under warrant.

78.— (1) A judge of the District Court may issue a warrant under this section if satisfied, by information on oath of an authorised officer, that there are reasonable grounds for believing that—

• (a) documents relating to the business of a designated person that are required for the purpose of assisting the State competent authority that appointed the authorised officer under this Chapter in the performance of the authority’s functions under this Part are contained on premises, and

• (b) the premises comprise a dwelling or an authorised officer has been obstructed or otherwise prevented from entering the premises under section 75.

• (2) A warrant under this section authorises an authorised officer, at any time or times within one month of the issue of the warrant—

• (a) to enter the premises specified in the warrant, and

• (b) to exercise the powers conferred on authorised officers by this Chapter or any of those powers that are specified in the warrant.

• (3) Entry to premises the subject of a warrant may be effected with the use of reasonable force.

79. Authorised officer may be accompanied by others.

79.— An authorised officer may be accompanied, and assisted in the exercise of the officer’s powers (including under a warrant issued under section 78), by such other authorised officers, members of the Garda Síochána or other persons as the authorised officer reasonably considers appropriate.

80. Offence to obstruct, interfere or fail to comply with request.

80.— (1) A person commits an offence if the person, without reasonable excuse—

• (a) obstructs or interferes with an authorised officer in the exercise of the officer’s powers under this Chapter, or

• (b) fails to comply with a requirement, or request made by an authorised officer, under section 77 (including as applied by section 78).

• (2) A person who commits an offence under this section is liable, on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months (or both).

• (3) A reference in this section to an authorised officer includes a member of the Garda Síochána or other person who is accompanying and assisting the officer in accordance with section 79.

81. Self-incrimination — questions of authorised officers.

81.— Nothing in this Chapter requires a person to answer questions if to do so might tend to incriminate the person.

82. Production of documents or information not required in certain circumstances.

82.— Nothing in this Chapter requires the production of any document or information subject to legal privilege.

83. Disclosure or production not to be treated as breach or to affect lien.

83.— (1) The disclosure or production of any information or document by a person in accordance with this Chapter shall not be treated as a breach of any restriction under any enactment or rule of law on disclosure or production by the person or any other person on whose behalf the information or document is disclosed or produced.

• (2) The production referred to in subsection (1) of any item forming part of the documents relating to the business of a designated person shall not prejudice any lien that the designated person or any other person claims over that item.

Chapter 9 Authorisation of Trust or Company Service Providers

84. Interpretation (Chapter 9).

84.— F155[(1)] In this Chapter—

F156[…]

“authorisation” means an authorisation to carry on business as a trust or company service provider granted under this Chapter and, if such an authorisation is renewed or amended under this Chapter, means, unless the context otherwise requires, the authorisation as renewed or amended (as the case may be);

“principal officer” means—

• (a) in relation to a body corporate, any person who is a director, manager, secretary or other similar officer of the body corporate or any person purporting to act in such a capacity, or

• (b) in relation to a partnership—

• (i) any person who is a partner in, or a manager or other similar officer of, the partnership or any person purporting to act in such a capacity, and

• (ii) in a case where a partner of the partnership is a body corporate, any person who is a director, manager, secretary or other similar officer of such a partner or any person purporting to act in such a capacity;

F155"subsidiary" has the meaning assigned to it by [section 155](https://www.irishstatutebook.ie/eli/1963/act/33/section/155) of the [Companies Act 1963]

“trust or company service provider” does not include any of the following:

• (a) a member of a designated accountancy body;

• (b) a barrister or solicitor;

• (c) a credit institution or financial institution.

• F155[(2)
• (a) Subject to paragraph (b), in this Chapter a reference to the Minister shall, in a case where the applicant for or the holder of an authorisation is a subsidiary of a credit or financial institution, be construed as a reference to the Central Bank of Ireland.

• (b) Paragraph (a) does not apply to—

• (i) section 88(5),

• (ii) sections 89(5)(b)(ii), 90(3)(b)(ii), 93(6)(b)(ii), 97(6)(b)(ii), 98(2)(b)(ii) and 100(2) in so far as those provisions relate to the specifying of a form by the Minister,

• (iii) section 94(3),

• (iv) section 101,

• (v) section 104(8),

• (vi) section 106(7).]

85. Meaning of “fit and proper person”.

85.— For the purposes of F157[this Chapter and sections 108B to 108I], a person is not a fit and proper person if any of the following apply:

• (a) the person has been convicted of any of the following offences:

• (i) money laundering;

• (ii) terrorist financing;

• (iii) an offence involving fraud, dishonesty or breach of trust;

• (iv) an offence in respect of conduct in a place other than the State that would constitute an offence of a kind referred to in subparagraph (i), (ii) or (iii) if the conduct occurred in the State;

• (b) in a case where the person is an individual, the person is under 18 years of age;

• (c) the person—

• (i) has suspended payments due to the person’s creditors,

• (ii) is unable to meet other obligations to the person’s creditors, or

• (iii) is an individual who is an undischarged bankrupt;

• (d) the person is otherwise not a fit and proper person.

86. Authorisations held by partnerships.

86.— (1) A reference in a relevant document to the holder or proposed holder of an authorisation includes, in a case where the holder or proposed holder is a partnership, a reference to each partner of the partnership unless otherwise specified.

• (2) A reference in subsection (1) to a relevant document is a reference to any of the following:

• (a) this Chapter;

• (b) a regulation made for the purposes of this Chapter;

• (c) an authorisation or condition of an authorisation;

• (d) any notice or direction given under this Chapter;

• (e) any determination under this Chapter.

• (3) Without prejudice to the generality of subsection (1) or section 111, where any requirement is imposed by or under this Chapter on the holder of an authorisation and failure to comply with the requirement is an offence, each partner of a partnership (being a partnership that is the holder of an authorisation) who contravenes the requirement is liable for the offence.

87. Prohibition on carrying on business of trust or company service provider without authorisation.

87.— (1) A person commits an offence if the person carries on business as a trust or company service provider without being the holder of an authorisation issued by the Minister under this Chapter.

• (2) A person who commits an offence under subsection (1) 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 not exceeding 5 years (or both).

88. Application for authorisation.

88.— (1) An individual, body corporate or partnership may apply to the Minister for an authorisation to carry on business as a trust or company service provider.

• (2) The application shall—

• (a) be in a form provided or specified by the Minister,

• (b) specify the name of—

• (i) the proposed holder of the authorisation,

• (ii) in a case where the proposed holder of the authorisation is a body corporate or partnership or an individual who proposes to carry on business as a trust or company service provider as a partner in a partnership, any principal officer of the body corporate or partnership (as the case may be), and

• (iii) any person who is, or is proposed to be, a beneficial owner of the business,