1.The Crime of Money Laundering and Criminal Enforcement

1.1 What is the legal authority to prosecute money laundering at the national level?

Part 2 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (as amended) (the "CJA 2010") contains the principal money laundering offences that exist in Irish law. These provisions criminalise money laundering occurring within Ireland, money laundering occurring outside of Ireland in certain circumstances, attempted money laundering, and the aiding, abetting, counselling or procuring of money laundering that occurs in Ireland from outside of Ireland.

Part 4 of the CJA 2010 also contains a number of other criminal offences. These attach criminal liability to the "tipping off" of persons who may be suspected of (or under investigation for) potential money laundering. There are also provisions which attach criminal liability to regulated financial service providers (and potentially their employees) who fail to report suspicious transactions to the relevant Irish authorities in accordance with the CJA 2010's requirements.

Note that there are similar offences related to terrorist financing contained in the Criminal Justice (Terrorist Financing) Act 2005. The anti-terrorist financing regime in Ireland exists alongside the anti-money laundering ("AML") regime in Irish law.

1.2 What must be proven by the government to establish money laundering as a criminal offence? What money laundering predicate offences are included? Is tax evasion a predicate offence for money laundering?

In order to be prosecuted for money laundering, the prosecution would have to prove the accused engaged in one of the following acts in relation to properties that are 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; or (iii) removing the property from, or bringing the property into, the state. In addition to engaging in these acts, it must be proven that the accused knew or believed (or was reckless as to whether or not) that the property was the proceeds of crime.

Proceeds of criminal conduct means any property that is derived from or obtained through criminal conduct, whether directly or indirectly. Criminal conduct means any criminal offence, which includes tax evasion.

An attempt to commit this offence is also an offence.

1.3 Is there extraterritorial jurisdiction for the crime of money laundering? Is money laundering of the proceeds of foreign crimes punishable?

Yes, both the principal money laundering and disclosure offences have extraterritorial application under the CJA 2010.

1.4 Which government authorities are responsible for investigating and prosecuting money laundering criminal offences?

An Garda Síochána, Ireland's national police force, is the state body responsible for the investigation of all crimes that may occur in Ireland, including money laundering criminal offences. Upon conclusion of an investigation by An Garda Síochána, a file will be prepared for the Office of the Director of Public Prosecutions (the "DPP"), a separate and independent state agency. The DPP has a statutory duty to enforce criminal law in the Irish courts and to direct and supervise public prosecutions more generally. The DPP ultimately decides whether or not to proceed with a prosecution in the courts following the conclusion of an investigation by An Garda Síochána.

1.5 Is there corporate criminal liability or only liability for natural persons?

Both forms of liability are possible.

1.6 What are the maximum penalties applicable to individuals and legal entities convicted of money laundering?

A person who commits any of the main money laundering offences contained in Part 2 of the CJA 2010 is liable: on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months (or both); or on conviction on indictment, to an (unlimited) fine or imprisonment for a term not exceeding 14 years (or both).

1.7 What is the statute of limitations for money laundering crimes?

The prosecution of summary offences in Irish criminal law must typically commence within a six-month period of the alleged crime, but there is no statutory time limit preventing the prosecution of indicatable offences in Ireland after a certain period of time has elapsed. It is of course possible that a judge may decide not to hear a case if there is an excessively long delay in prosecuting an offence, but this is at the discretion of the individual judge.

1.8 Is enforcement only at national level? Are there parallel state or provincial criminal offences?

Enforcement is only at national level. Irish criminal law is adopted by the Irish national parliament for the entire country, and there are no parallel state or provincial criminal law codes. Furthermore, Ireland only has a single national police force, An Garda Síochána.

1.9 Are there related forfeiture/confiscation authorities? What property is subject to confiscation? Under what circumstances can there be confiscation against funds or property if there has been no criminal conviction, i.e., non-criminal confiscation or civil forfeiture?

The Criminal Assets Bureau ("CAB") is an independent statutory body with the power to use civil forfeiture to seize assets obtained through criminal means under the Proceeds of Crime Act, 1996, as amended. Proceeds of crime means any property obtained or received by or in connection with criminal conduct. CAB may also seize property that it reasonably suspects to be the proceeds of crime and detain it for a maximum of 22 days.

1.10 Have banks or other regulated financial institutions or their directors, officers or employees been convicted of money laundering?

We are not aware of any. In general, money laundering convictions in Ireland have been taken against criminals engaged in the principal money laundering offences, rather than the financial institutions who may have (inadvertently) facilitated the laundering of the proceeds of crime.

1.11 How are criminal actions resolved or settled if not through the judicial process? Are records of the fact and terms of such settlements public?

Criminal actions involving money laundering are resolved through the Irish judicial system. Separately, the Central Bank of Ireland (the "Central Bank") has wide-ranging powers to take enforcement action against Irish-regulated financial service providers who do not comply with the applicable provisions of the CJA 2010, which require them to have systems in place to identify and detect money laundering and terrorist financing more generally. Records of the fact and terms of settlement with the Central Bank are public.

1.12 Describe anti-money laundering enforcement priorities or areas of particular focus for enforcement.

In 2022, the Central Bank focused on the Virtual Asset Service Provider ("VASP") sector. In July 2022 the Central Bank highlighted deficiencies that it had identified in firms related to incomplete applications, risk assessment, policies and procedures, customer due diligence ("CDD"), financial sanctions screening and executive functions.

In recent years, the Central Bank has had a focus on deficiencies in transaction monitoring and suspicious transaction reporting. In November 2021, the Central Bank highlighted deficiencies that it had identified in firms related to corporate governance, business risk assessments, outsourcing and CDD. The Central Bank has recently reaffirmed the importance of transaction monitoring by financial institutions and taken significant enforcement action.

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Originally published by International Comparative Legal Guide

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