The Financial Intelligence Unit (FIU) is part of the Garda Síochána. The FIU is responsible for receiving and analysing suspicious transaction reports. It may access the beneficial ownership registers and request information from designated businesses, competent authorities, the Revenue Commissioners and the Minister for Employment Affairs and Social Protection in order to carry out its functions.
It may provide information to certain bodies where there are grounds to suspect money laundering or terrorist financing. It may share information with FIUs in other European Union Member States.
Reporting of suspicious transactions
A designated business includes any person acting, or purporting to act, on behalf of the designated business, including any agent, employee, partner, director or another officer of, or any person engaged under a contract for services with, the designated business.
A designated business must report to the Garda Siochana (FIU Unit) and the Revenue Commissioners any knowledge or suspicion they have that another person is engaged in money laundering or terrorist financing. The report should be made as soon as practicable.
The report may be made in accordance with an internal reporting procedure. A defendant charged with offences may prove, in his or her defence, that they were an employee making a report in accordance with an internal reporting procedure.
The information included in a report may be used in an investigation into money laundering or terrorist financing or any other offence. The legislation sets out the circumstances in which disclosure of the information is not required.
A designated business that is required to report shall disclose the following information in the report:
- the information on which the designated business’s knowledge, suspicion or reasonable grounds are based;
- the identity, if the designated business knows it, of the person who the designated business knows, suspects or has reasonable grounds to suspect has been or is engaged in an offence of money laundering or terrorist financing;
- the whereabouts, if the designated business knows them, of the property the subject of the money laundering, or the funds the subject of the terrorist financing, as the case may be;
- any other relevant information.
In certain circumstances, the designated business may proceed with a suspicious service or transaction prior to the sending of the report to the Garda Siochana (FIU Unit) and the Revenue Commissioners. This does not authorize a person to proceed with a service or transaction if they have been directed or ordered otherwise. There are penalties for an offence committed under the provision.
Nothing requires the disclosure of information that is subject to legal privilege. 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. This does not apply to information received from or obtained in relation to a client with the intention of furthering a criminal purpose.
A relevant professional adviser” means an accountant, auditor or tax adviser who is a member of a designated accountancy body or of the Irish Taxation Institute;
The disclosure of information by a person in accordance with the obligations is not 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.
A ‘‘legal adviser’’ is a barrister or solicitor. A client of a solicitor who seeks advice from a barrister is, in the case of an adviser who is a barrister, a customer for this purpose.
N0 Tipping Off
A designated business may not make any disclosures likely to prejudice any ongoing or future investigation. There are penalties for tipping off.
It is a defence for a person charged with an offence to prove that the disclosure was to a customer of the defendant or designated business, the defendant or designated business was directed or ordered not to carry out any service or transaction in respect of the customer and this fact was the extent of the disclosure.
It is also a defence if the disclosure was solely to the effect that the defendant or a designated business on whose behalf the defendant made the disclosure had been directed by An Garda Siochana ordered by a judge of the District Court not to carry out a service.
Defences /Internal Disclosures
It is a defence to an alleged offence for an accused to prove that they were acting in a specific capacity listed and that they made the disclosure to another person acting in a similar capacity. It is a defence where a person can prove that the disclosure was made by a credit or financial institution to another such institution situated in an EU State or designated place and both institutions belonged to the same group. It is a defence where the person was a legal or relevant professional adviser at the time of the disclosure.
The defence extends to financial institutions and to branches and majority-owned subsidiaries of credit and financial institutions, and the institutions concerned must be in compliance with the group’s policies and procedures.
It is a defence that the disclosure related to a current or former customer, a transaction or service involving the person and the institution or adviser, and the disclosure was made to prevent money laundering or terrorist financing. The institution or adviser to whom the disclosure was made must also have been situated in a EU State or other countries designated.
Both the institution/adviser making and receiving the disclosure must have been subject to equivalent duties of professional confidentiality and the protection of personal data.