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How are ‘money laundering’, ‘terrorism financing’ and ‘fraud’ legally defined in your jurisdiction?
‘Money laundering’ is defined by Section 7(1) of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 as follows:
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,
(b) the person knows or believes (or is reckless as to whether or not) the property is the proceeds of criminal conduct.
‘Terrorist financing’ means an offence under Section 13 of the Criminal Justice (Terrorist Offences) Act 2005, and is summarised as follows:
A person is guilty of an offence if, in or outside the State, the person by any means, directly or indirectly, unlawfully and wilfully provides, collects or receives funds intending that they be used or knowing that they will be used, in whole or in part in order to carry out—
a) An act constitutes an offence under the law of the State and within the scope of, and as defined in, any treaty that it is listed in the annex to the Terrorist Financing Convention, or
b) An act (other than one referred to in paragraph (a) —
i. That is intended to cause death or serious bodily injury to a civilian or to any other person not taking an active part in the hostilities in a situation of armed conflict, and ii. The purpose of which is, by its nature or context, to intimidate a population or to compel a government or an international organisation to do, or abstain from doing, any act.
General fraud offences or offences of dishonesty are created by the Criminal Justice (Theft and Fraud Offences) Act 2001. Other offences, involving dishonesty, occur in a myriad of discrete legislative measures, both domestic and EU derivatives.
Principal and secondary offences
What are the principal and secondary offences in relation to money laundering, terrorism financing and fraud?
Money laundering offences are set out in Part 2 of the 2010 act. They include concealing the true nature or source of the proceeds of criminal conduct and converting, transferring, handling, acquiring, possessing or using those proceeds. A person who attempts the commission of such an offence is also guilty of an offence. Failing to carry out customer due diligence under the 2010 act is an offence.
Terrorist financing offences are set out in Part 4 of the 2005 act. They include providing, collecting or receiving funds knowing that they will be used to carry out an act that is intended to cause death or serious bodily injury to a civilian, or the purpose of which is to intimidate the public or compel a government to do or abstain from doing a particular act.
Fraudulent transactions are often also dealt with on the basis that the false accounting involved contravenes other statutory obligations, notably under the Companies Acts and/or Central Bank Acts.
How are predicate offences defined?
A predicate offence is understood as having the meaning set out in Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders: “(h) where the criminal proceedings leading to a confiscation order involve a predicate offence as well as money laundering, a ‘criminal offence’ mentioned in Article 8(2) (f) shall mean a predicate offence.”
In transposing the anti-money laundering directives of the European Union, Ireland has engaged in the practice of ‘gold plating’. This means that, in addition to the offences mandated to be created, Ireland has gone further, particularly in the field of tax law. As such, the range of predicate offences is exceptionally broad in Ireland and would not be possible in an article of this length to define each potential predicate offence.
Predicate crimes in Ireland include drug offences, tax evasion and fuel laundering.
De minimis rules
What de minimis rules apply to money laundering, terrorism financing and fraud offences?
There is no de minimis amount in Ireland below which money laundering or terrorist financing prosecution is not possible nor is there an amount below which anti-money laundering or counter-terrorist financing due diligence does not arise where there is a business relationship.
Legislation envisages occasional transactions (where there is no business relationship) triggering customer due diligence when the occasional transactions reach €15,000.
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