Section 24 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 as amended (“the Act”) defines notaries as designated persons.
Section 24 says a “relevant independent legal professional” is a barrister, solicitor or notary who carries out any of the following services:
(a) the provision of assistance in the planning or execution of transactions for clients concerning any of the following:
(i) buying or selling land or business entities;
(ii) managing the money, securities or other assets of clients;
(iii) opening or managing bank, savings or securities accounts;
(iv) organising contributions necessary for the creation, operation or management of companies;
(v) creating, operating or managing trusts, companies or similar structures or arrangements;
(b) acting for or on behalf of clients in financial transactions or transactions relating to land;
Under section 25 of the Act, a relevant independent legal professional is a ‘designated person’ only in respect of carrying out of the services specified in the definition of ‘relevant independent legal professional’.
Section 60 of the Act determines who the competent authority for anti-money laundering (AML) supervision of designated persons is. In the case of a notary, this is the Minister for Justice. The anti-money laundering/counter financing of terrorism functions of the Minister for Justice as State Competent Authority in Ireland under the Act are administered by the Anti-Money Laundering Compliance Unit (AMLCU) in the Department of Justice. The Minister has delegated the competent authority role to the AMLCU under section 108 of the Act.
On 31 March 2021 the AMLCU presented on the key AML obligations for notaries included in the act at a webinar hosted by the Faculty of Notaries Public in Ireland. A copy of this presentation is available below.
The Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 as amended requires all ‘designated persons’ to guard their business against being used for money laundering or terrorist financing purposes. To minimise this threat and to ensure compliance with legal obligations under the Act, notaries are reminded of key AML compliance obligation under the Act as follows:
- Section 30A Business Risk Assessment
A designated person should have a documented business risk assessment in place to identify and assess the risks of money laundering and terrorist financing in relation to the business activities. This assessment should be repeated yearly and approved at an appropriate senior management level.
- Section 30B Customer or Transaction Risk Assessment
That each customer availing of the services of a relevant independent legal professional, is individually risk assessed and assigned an individual risk rating. The customer risk assessment should be documented and used to determine the extent of customer due diligence (CDD) and ongoing monitoring to be taken in relation to the customer or transaction. This exercise should have regard to the factors listed under section 30B(1) and the factors outlined in Schedule 3 and Schedule 4 of the Act where appropriate.
- Section 33 Customer Due Diligence
A designated person should not carry out any service for the customer without first having identified and verified the identity of the customer and beneficial owner involved in the service. This means notaries should obtain and retain a copy of a valid photographic identification (passport or driving licence) and proof of address (via correspondence from a Government source or utility bill dated within six months). In addition, a designated person is required to establish from the customer the source of the funds for any such transaction.
- Section 36A Examination of background and purpose of certain transactions
A designated person shall, as far as possible, examine the background and purpose of all transactions that are or appear to be:
- complex,
- unusually large,
- conducted in an unusual pattern or
- do not have an apparent economic or lawful purpose.
- Section 37 Enhanced Due Diligence
A designated person shall, as far as possible, determine if a customer or a beneficial owner is a politically exposed persons (PEP) or an immediate family member or a close associate of a politically exposed persons. In such instances, a designated person must conduct enhanced due diligence on the individual. The checks used to determine PEP status should be retained on file as part of the customer due diligence process and made available to AMLCU regulatory investigators at future compliance inspections.
- Section 42 Suspicious Transaction Reporting
A designated person who knows, suspects or has reasonable grounds to suspect that another person has been or is engaged in an offence of money laundering or terrorist financing shall report this to both the Financial Intelligence Unit (FIU) and the Revenue Commissioners.
Notaries are further reminded that the procedure for reporting knowledge, suspicion or reasonable grounds for suspicion that another person has been or is engaged in an offence of money laundering or terrorist financing, on a confidential basis to the Financial Intelligence Unit (FIU) of An Garda Síochána and the Revenue Commissioners is as follows:
Financial Intelligence Unit (FIU) – through an online system called GoAML (https://fiu-ireland.ie/Home)
Revenue Commissioners – through Revenue’s Online Service (www.ros.ie)
- Section 49 Tipping Off
A designated person shall not make any disclosure that is likely to prejudice an investigation that is the subject of a suspicious transaction report.
- Section 54 AML/CTF Policies, Procedures and Controls
A designated person shall adopt internal policies, controls and procedures in relation to their business to prevent and detect the commission of money laundering and terrorist financing. This document should be reviewed yearly and approved at an appropriate management level. This document should specify the policies, controls and procedures for dealing with the factors listed under section 54(3) of the Act. AML/CTF Policies, Procedures and Controls can also include a range of additional measures for the prevention and detection of money laundering.
- Section 54 (6) Staff Training
A designated person shall ensure that all persons involved in the conduct of the business are instructed on the law relating to money laundering, that training records are maintained and that appropriate ongoing training is provided.
- Section 55 Record Keeping
A designated person shall ensure all records of the procedures applied, the information obtained, the history of services and transactions carried out in relation to each customer are retained on file and available for review. This includes a documented business risk assessment, customer risk assessment, AML Policies & Procedures, customer due diligence records, training records, PEP checks and information regarding suspicious transaction reporting or any decisions made on the matter.