Criminal Justice Act 2013

PART 1 Preliminary and General

1.. Short title, collective citation and commencement

1. (1) This Act may be cited as the Criminal Justice Act 2013.

(2) The Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 and Part 2 may be cited together as the Criminal Justice (Money Laundering and Terrorist Financing) Acts 2010 and 2013.

(3) Part 2 shall come into operation on such day or days as the Minister for Justice and Equality may appoint by order or orders, either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

PART 2 Amendment of Criminal Justice (Money Laundering and Terrorist Financing) Act 2010

2.. Definition (Part 2)

2. In this Part, “Act of 2010” means Criminal Justice (Money Laundering and Terrorist Financing) Act 2010

3.. Amendment of section 17 of Act of 2010

3. Section 17 of the Act of 2010 is amended by the substitution of the following for subsection (4):

“(4) An application for an order under subsection (2)—

(a) shall be made ex parte and shall be heard otherwise than in public,

and

(b) shall be made to a judge of the District Court assigned to the district in which the order is proposed to be served.”.

4.. Amendment of section 24 of Act of 2010

4. Section 24(1) of the Act of 2010 is amended by the substitution of the following for the definition of “occasional transaction”:

“’occasional transaction’ means, in relation to a customer of a designated person where the designated person does not have a business relationship with the customer, a single transaction, or a series of transactions that are or appear to be linked to each other, and—

(a) in a case where the designated person concerned is a person referred to in section 25(1)(h), that the amount of money or the monetary value concerned—

(i) paid to the designated person by the customer, or

(ii) paid to the customer by the designated person,

is in aggregate not less than €2,000,

(b) in a case where the transaction concerned consists of a transfer of funds (within the meaning of Regulation (EC) No. 1781/2006 ^1) that the amount of money to be transferred is in aggregate not less than €1,000, and

(c) in a case other than one referred to in paragraphs (a) or (b), that the amount or aggregate of amounts concerned is not less than €15,000;”.

5.. Amendment of section 25 of Act of 2010

5. F1[…]

6.. Amendment of section 33 of Act of 2010

6 . Section 33(1) of the Act of 2010 is amended by the substitution of the following for paragraph (c):

“(c) prior to carrying out any service for the customer, if, having regard to the circumstances, including—

(i) the customer, or the type of customer, concerned,

(ii) the type of any business relationship which the person has with the customer,

(iii) the type of service or of any transaction or product in respect of which the service is sought,

(iv) the purpose (or the customer’s explanation of the purpose) of the service or of any transaction or product in respect of which the service is sought,

(v) the value of any transaction or product in respect of which the service is sought,

(vi) the source (or the customer’s explanation of the source) of funds for any such transaction or product,

the person has reasonable grounds to suspect that the customer is involved in, or the service, transaction or product sought by the customer is for the purpose of, money laundering or terrorist financing, or”.

7.. Amendment of section 34 of Act of 2010

7. Section 34 of the Act of 2010 is amended by the substitution of the following for subsection (1):

“(1) A designated person is not required to apply the measures specified in section 33(2) if the designated person, having taken such measures as are necessary to establish if the customer is a specified customer or the product is a specified product, is satisfied that—

(a) the customer is a specified customer, or

(b) the product is a specified product.”.

8.. Amendment of section 36 of Act of 2010

8. Section 36 of the Act of 2010 is amended by the substitution of the following for subsection (1):

“(1) A designated person is not required to apply the measures specified in section 35(1) if the designated person, having taken such measures as are necessary to establish if the customer is a specified customer or the product is a specified product, is satisfied that—

(a) the customer is a specified customer, or

(b) the product is a specified product.”.

9.. Amendment of section 37 of Act of 2010

9. Section 37 of the Act of 2010 is amended—

(a) by the substitution of the following for subsection (4):

“(4) If a designated person knows or has reasonable grounds to believe that a customer residing in a place outside the State is, or has become, a politically exposed person or an immediate family member or close associate of a politically exposed person, the designated person shall—

(a) ensure that approval is obtained from senior management of the designated person before a business relationship is established or continued with the customer,

(b) determine the source of wealth and of funds for the following transactions—

(i) transactions the subject of any business relationship with the customer that are carried out with the customer or in respect of which a service is sought, or

(ii) any occasional transaction that the designated person carries out with, for or on behalf of the customer or that the designated person assists the customer to carry out,

and

(c) apply such additional measures in the course of monitoring the business relationship with the customer in accordance with section 35(3) (including monitoring of the source of wealth and funds), that the designated person considers to be warranted by the risk of money laundering or terrorist financing.”,

and

(b) in subsection (6)—

(i) by the substitution of “is, or has become, a politically exposed person” for “is a politically exposed person”, and

(ii) by the substitution of “subsection (4)(a), (b) and (c)” for “subsection (4)(a) and (b)”.

10.. Amendment of section 39 of Act of 2010

10. The Act of 2010 is amended by the substitution of the following for section 39:

“Enhanced due diligence in cases of heightened risk

11.. Amendment of section 54 of Act of 2010

11. Section 54(3) of the Act of 2010 is amended—

(a) in paragraph (a) by the substitution of “terrorist financing,” for “terrorist financing, and”,

(b) in paragraph (b) by the substitution of “facilitate anonymity,” for “acilitate anonymity.”, and

(c) by the insertion after paragraph (b) of the following:

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

(d) additional measures to be taken in accordance with section 39 and the circumstances in which such measures are to be taken, and

(e) 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.”.

12.. Amendment of section 55 of Act of 2010

12. Section 55 of the Act of 2010 is amended—

(a) in subsection (4), by the substitution of “shall be retained by the designated person” for “shall be retained by the designated person, at an office or other premises in the State,”, and

(b) by the insertion, after subsection (7) of the following subsection:

“(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.”.

13.. Amendment of section 60 of Act of 2010

13. Section 60(2)(b)(ii) of the Act of 2010 is amended by the substitution of “through officers and members” for “through officers, members or employees”.

14.. Amendment of section 71 of Act of 2010

14. The Act of 2010 is amended by the substitution of the following for section 71:

“Directions to comply with obligations under this Part

(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.”.

15.. Amendment of section 84 of Act of 2010

15. Section 84 of the Act of 2010 is amended—

(a) by the renumbering of the section as subsection (1),

(b) by the insertion, in subsection (1), after the definition of “principal officer” of the following:

“ ‘subsidiary’ has the meaning assigned to it by section 155 of the Companies Act 1963”,

and

(c) by the insertion after subsection (1) of the following subsection:

(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).”.

16.. Miscellaneous amendments to Act of 2010

16. The Act of 2010 is amended—

(a) in section 98 by the substitution of “the reasons” or “the Minister’s reasons” in subsection (2)(a),

(b) in section 103(1) by the substitution of “to assist in carrying out” for “to assist him or her in carrying out”, and

(c) in section 104—

(i) in subsection (3) by the substitution of “at an office in the State” or “at an office of the Department”, and

(ii) in subsection (4) by the substitution of “during ordinary business hours” for “during the ordinary business hours of the Department”.

17.. Amendment of section 104 of Act of 2010

17. Section 104 of the Act of 2010 is amended by the substitution of the following for subsection (5):

“(5) The Minister may publish a register in written, electronic or other form and a member of the public is entitled to obtain a copy of a register or of an entry in a register on payment of such reasonable copying charges as may be prescribed (if any).”.

18.. Amendment of section 109 of Act of 2010

18. Section 109 of the Act of 2010 is amended by the insertion after subsection (6) of the following subsections:

“(7) The Minister may publish the register in written, electronic or other form and a member of the public is entitled to obtain a copy of the register or of an entry in the register on payment of such reasonable copying charges as may be prescribed (if any).

(8) The particulars entered in the register pursuant to this section relating to a person who is a designated person pursuant to section 25(1)(h) may be removed from the register where that person ceases to be a designated person pursuant to that provision.”.

PART 3 Cessation of Mobile Communications Service in Response to Serious Threat

19.. Definitions (Part 3)

19. In this Part—

“activate”, in relation to an explosive or other lethal device, includes discharge and detonate;

“authorisation” means an authorisation given under section 22;

“cessation” means the cessation by an undertaking, in compliance with a direction, of the provision of a mobile communications service within a particular geographical area;

“cessation period” means the period, referred to in section 24(3)(c), during which an undertaking is directed, under a direction, to cease providing a mobile communications service;

“direction” means a direction issued under section 24;

“electronic communications service” has the same meaning as it has in section 2 of the Communications Regulation Act 2002;

“explosive or other lethal device” has the same meaning as it has in section 10(9) of the Criminal Justice (Terrorist Offences) Act 2005 ;

“geographical area” means a geographical area that covers all or a part of the State;

“Minister” means the Minister for Justice and Equality;

“mobile communications service” means a publicly available electronic communications service that is provided by an undertaking wholly or mainly by means of a mobile terrestrial network;

“serious threat” means an imminent threat that—

(a) an explosive or other lethal device will be activated by use of a mobile communications service provided in the State by an undertaking, and

(b) the activation of that explosive or other lethal device is likely to cause—

(i) death of a person,

(ii)serious bodily injury to a person, or

(iii) substantial damage to property;

“undertaking” means a person who is for the time being authorised or licensed in the State to provide a mobile communications service;

“user” means a person using a mobile communications service, for private or business purposes, whether or not he or she has subscribed to that service.

20.. Conditions justifying authorisation

20. (1) The Minister may give an authorisation where, and only where, he or she—

(a) has received an application under section 21, and

(b) is satisfied that the conditions referred to in subsection (2) have been met.

(2) The conditions referred to in subsection (1)(b) are:

(a) that there are reasonable grounds for believing that a serious threat exists;

(b) that there is a reasonable prospect that the cessation of a mobile communications service within a geographical area would be of material assistance in averting that threat;

(c) that having regard to all the circumstances, including the importance of maintaining the availability of the mobile communications service in the geographical area concerned and the effect of a cessation on users, the giving of an authorisation is necessary and proportionate to its objectives.

21.. Application for authorisation

21. (1) An application for an authorisation shall—

(a) subject to subsection (2), be made in writing by a member of the Garda Síochána not below the rank of Assistant Commissioner (in this Part referred to as “the applicant”),

(b) include sufficient information to enable the Minister to determine whether the conditions specified in section 20(2) are met in relation to the authorisation being applied for, and

(c) include a statement by the applicant that he or she has reasonable grounds for believing that a serious threat exists.

(2) (a) The Minister, where he or she is satisfied that the case is one of exceptional urgency, may consider an application under this section that is made orally.

(b) Where paragraph (a) applies, the applicant concerned shall, as soon as possible, confirm the application in writing to the Minister.

(3) The Minister shall consider an application under this section and shall make any inquiries he or she thinks necessary for that purpose.

(4) Where, having considered an application under this section, the Minister refuses to give an authorisation, he or she shall notify the applicant forthwith and shall specify the reasons for that refusal.

(5) A notification referred to in subsection (4) may, if the Minister considers that the case is one of exceptional urgency, be given orally provided that the notification shall be confirmed in writing as soon as practicable.

(6) The Minister shall arrange for a record of any notifications given under this section (which shall include the Minister’s reasons for refusing an application) to be kept.

(7) Notwithstanding any other enactment or rule of law, the Minister may, in the interests of public safety or the security or essential interests of the State, refuse to disclose to any person, other than a court—

(a) the fact of an application for an authorisation having been made, or any information or statement contained in it,

(b) the fact of a refusal to give an authorisation,

(c) a notification referred to in subsection (4), or

(d) an authorisation or its content.