MONEY LAUNDERING
Presenter:
MONEY LAUNDERING
1. DEFINITION OF THE CRIME OF MONEY LAUNDERING.
2. INSTITUTIONS DEALING DIRECTLY WITH THE CRIME OF MONEY LAUNDERING:
THE ANTI-MONEY LAUNDERING
ACT, 2008 (ACT 749 AS AMENDED)
1. Definition of money laundering and its elements.
2. Predicate Offences
3. Definition of Aiding and Abetting money laundering and its elements.
DEFINITION OF MONEY
LAUNDERING
Sec. 1(1)- A person commits an offence of money
laundering if the person knows or ought to have known that proper is or
forms part of the proceeds of unlawful activity and the person
(a) converts, conceals,
disguises or transfers the property;
What is money laundering?
The Anti-Money Laundering Act, 2008 (Act 749) as amended by the Anti-Money
Laundering
DEFINITION OF MONEY
LAUNDERING
b) conceals or disguises the unlawful origin, disposition, movement or ownership of rights with respect to the property; or
c) acquires, uses or takes
possession of the property. What is money
laundering?
The Anti-Money Laundering Act, 2008 (Act 749) as amended by the Anti-Money
Laundering
ELEMENTS OF THE CRIME OF MONEY LAUNDERING
a. A person is involved
b. There should be unlawful activity
c. There should be property which is the proceeds of
the unlawful activity or is a part of the proceeds of the unlawful activity.
d.The person knew or ought to have known that the
property is a result of unlawful activity.
Sec. 1(1)- A person commits an offence of money
laundering if the person knows or ought to have
ELEMENTS OF THE CRIME OF MONEY LAUNDERING
It should be proven that the person dealt with the
property in any of the following ways:
a. converted it; b.concealed it; c. disguised it; or d.transferred it.
(a) converts,
conceals, disguises or transfers the
ELEMENTS OF THE CRIME OF MONEY LAUNDERING
The person should have
concealed or disguised the following with respect to the property, that is to say a. Its unlawful origin
b.Its unlawful disposition c. Its unlawful movement d.Its unlawful ownership
b) conceals or disguises the unlawful origin, disposition,
movement or
ELEMENTS OF THE CRIME OF MONEY LAUNDERING
The person should have done any of the following with respect to the property: a. Acquired it;
b.Used it; or
c. Taken possession of it.
WHAT IS UNLAWFUL ACTIVITY
For the purposes of this Act, unlawful activity means
conduct which constitutes a serious offence, financing
of terrorism, financing of the proliferation of
weapons of mass
destruction or other
transnational organised
crime or contravention of a law regarding any of these
matters which occurs in this country or elsewhere.
Sec. 1(2)
WHAT IS UNLAWFUL ACTIVITY
Predicate Offences include: a. Serious offences
b. Financing of terrorism
c. Financing of proliferation of weapons of mass destruction d. Financing of transnational
organised crime
e. Contravention of law
regarding any of the above whether it took place in
Ghana or elsewhere. Sec. 1(2) creates a
group of activities out of which any property acquired will be deemed as proceeds of crime and the activity will therefore amount to money laundering. These are known as
Aiding and Abetting money laundering activities
A person commits an offence if the person knows or
ought to have known that another person has
obtained proceeds from an unlawful activity and enters into an agreement with
that other person or
engages in a transaction where
Sec. 2
What is Aiding and Abetting money
Aiding and Abetting money laundering activities
(a) The retention or the
control by or on behalf of that other person of the proceeds from unlawful activity is facilitated; or (b) The proceeds from that
unlawful activity are used to make funds available to acquire property on
behalf of that other person.
Sec. 2
What is Aiding and Abetting money
laundering activities?
Note: Under Sec. 2 other person
Elements of the
crime of Aiding and Abetting
a. A person (the abettor) other
than the one who undertook the unlawful activity is involved;
b. The other person should have obtained the proceeds from unlawful activity;
c. The abettor knew or ought to have known that the property was acquired through unlawful activity; and
d. The abettor enters into an agreement with the other person or engages in a
transaction where
A person commits an offence if the person knows or ought to have known that another person has obtained proceeds from an unlawful activity and enters into an agreement with that other
Elements of the
crime of Aiding and Abetting
By the said actions of the abettor proceeds of
unlawful activity of the other person are either
a. retained or controlled by the other person; or
b. retained or controlled on behalf of the other person
(a) The retention or the control by or on behalf of that other person of the
proceeds from
Elements of the
crime of Aiding and Abetting
By the said acts of the
abettor proceeds of the unlawful activity
undertaken by the other person are used to make funds available to acquire property on behalf of the other person.
(b) The proceeds from that unlawful activity are used to make funds
available to
Other offences
created by Act 749 as amended
Other offences created by the Act include:
a. Sec. 25 – Unauthorised access to computer system or application data.
b. Sec. 26 - Unauthorised modification of computer system
c. Section 39 – Offences in relation to records and information – Relating to the administration of the process by FIC.
d. Section 44 – deals with offences related to non-compliance with the law by accountable institutions.
Act 749 as amended has created certain other offences which are intended to
create favourable conditions for the enforcement of the provisions of the Act and also compel
performance by
Other offences
created by Act 749 as amended
This section prohibits any
body from either accessing a computer system, or
accessing application data held in a computer system or causing a computer
system which belongs to or is under the control of FIC or an Accountable
Institution (AI) to perform or fail to perform without authority of FIC or the AI
Section 25 – Unauthorised
access to computer system or
Other offences
created by Act 749 as amended
This section makes it an offence to modify, erase or destroy the contents of a computer system or application data of a
computer system belonging to the FIC or an AI without
authority.
Sec. 26 -
Other offences
created by Act 749 as amended
Offences as a result of
breaches of provisions of the Act.
a. Opening of an anonymous account or an account in a fictitious name. Failure to undertake customer due diligence and to keep
appropriate records, write STRs where appropriate, etc… in breach of Sec. 23
Sec. 39 – Offences in relation to
Other offences
created by Act 749 as amended
b. Failure to act on a request from FIC.. Breach of Sec. 28
c. Failure to file STR..Breach of Sec. 30 d. Unlawful disclosure of info. about:
i. any report filed with FIC on money laundering and its predicate offences or any investigation being carried thereon ii. the identity of the person who prepared the STR, or who supplied information to FIC, or person who
handled any transaction with respect to the reporting to FIC.
iii. The identity of any person who handled any judicial process in
connection with an investigation
Sec. 39 – Offences in relation to
Protection under the Act
Sec. 32(1) protects them from any action, whether criminal, civil disciplinary or administrative for breach of banking or professional secrecy or contract if they
submitted report(s) or provided information.
Sec. 32(2) protects them if even they have executed the transaction
involving serious offence, financing of terrorism, and financing of the proliferation of weapons of mass destruction, once they have
reported it to the FIC
Sec. 32 of the Act gives protection to Accountable
INSTITUTIONS DEALING DIRECTLY WITH
THE CRIME OF MONEY LAUNDERING
1. REGULATORY INSTITUTIONS a. Bank of Ghana
b. Financial Intelligence Centre
2. CRIMINAL LAW ENFORCEMENT AGENCIES. a. Ghana Police Service
REGULATORS
• BANK OF GHANA
1.The role of Bank of Ghana in Anti-money laundering.
The
Regulators
The two institutions which have
primary regulatory responsibility for anti-money laundering are:
a. the Bank of Ghana which exercises general supervision and control over banking activities in Ghana. It makes rules to regulate banking and has the ultimate authority to discipline banks and non-bank financial
institutions
b. The Financial Intelligence Centre.
1.Bank of Ghana 2.Financial
Bank of Ghana as a Regulator
This Act gives the Bank of Ghana powers of general supervision over the
banking and non-bank financial sector of the economy of Ghana.
Part II of the Act outlines the powers of BoG in granting licences, revoking them changing the terms etc. Part VII outlines the powers BoG can exercise in its supervisory and control roles. These include the authority to issue Regulations and Directives which the force of law, the authority to demand information and periodic returns, on-site examination of banks,
investigation of banks for breaches, among others.
The Banking Act, 2004 (Act 673) as amended by the Banking
REGULATORS
1. The nature of the Financial Intelligence Centre (FIC)
2. The Objects of the FIC 3. The Functions of the FIC 4. Accountable Institutions
The Financial
Intelligence Centre (FIC) as a
regulator
Sec. 4 of the Act sets up the Financial Intelligence Centre (FIC) .
Sec. 5 outlines the objects of the FIC Sec. 6 outlines the functions of the
FIC
Sec. 7 to Sec. 20 set up the
Governing Board and set the ground rules for administrative, financial human resource and other institutional structures necessary for the effective functioning of FIC.
Sections 4 to 20 of Act 749 as
The Financial
Intelligence Centre (FIC) as a
regulator
Sec. 4(1) sets up the FIC
Sec. 4(2) makes the FIC a body corporate with perpetual
succession, a common seal and the right to sue and be sued.
Sec. 4(3) gives the FIC the power to acquire and hold movable and immovable property. It can enter into a contract or any
other transaction.
Sec. 4 of Act 749. The Financial
The Financial
Intelligence Centre (FIC) as a
regulator
The Objects are to
a. assist in the identification of proceeds of unlawful activity
b. Assist in the combat of of money laundering activities, financing of
terrorism, financing of the proliferation of weapons of mass destruction and any other transnational organised crime
c. Make information available to
investigating authorities to facilitate administration and enforcement of laws
d. Exchange information with similar international bodies on issues
concerning the above objects
Sec. 5
The Financial
Intelligence Centre (FIC) as a
regulator
Functions are:
a. Request receive analyse, interpret and disseminate information concerning
suspected proceeds of crime and terrorist property.
b. Take measures for the enforcement of UN Consolidated list.
c. monitor and give guidance to AIs and supervisory bodies.
d. Coordinate and supervise the activities for the investigation and suppression of money laundering, etc. (Coordinate with GRA)
e. Retain information in accordance with the Act
f. Inform, advise and cooperate with
investigating, supervising, revenue and
intelligence authorities both local and foreign
Sec. 6
ACCOUNTABLE INSTITUTIONS (AIs)
The First Schedule lists Financial
Institutions, leasing companies, hire purchase companies, social security institutions, forex bureaus, Insurance companies, Lawyers, real estate
development companies, Accountants, dealers in precious minerals, Notaries, dealers in motor vehicles, Auctioneers, Religious bodies, NGOs, Operators of games of chance, providing a
registered office, business address or accommodation for business entities, Trusts and trustees, acting as or
arranging for another person to act as a nominee shareholder for another person, and nominees.
Sec. 51
Accountable
institution includes the institutions set out in the First
Suspicious
Transaction Report (STR)
Sec. 30 obliges a person or AI
1. to report if he/it knows or reasonably suspects that property is
a. terrorist property,
b. the proceeds of money laundering,
c. for financing of proliferation of weapons of mass destruction, or
d. Intended for any other serious offence shall submit STR to FIC.
The obligation to report covers attempted transactions as well.
2. not to disclose to any person the fact of the STR having been filed, that an
investigation is being conducted,
information about the identity of the STR writer or identity of any official handling the proceedings involving the said
transaction.
Sec. 30.
Obligation to file a report within 24 hours- The
Suspicious
Criminal Law Enforcement Agencies
a. The 1992 Constitution of Ghana and the Police Service Act, 1970 (Act 350) establish the Ghana Police Service and give the police power and
authority to investigate, and prevent any and all crimes committed in
Ghana as well as the power,
authority and duty to ensure internal security of Ghana.
b. The Economic and Organised Crime Office Act, 2010 (Act 804) establishes the Economic and Organised Crime Office as a specialised agency to deal with economic and organised crimes generally.
1. The Ghana Police Service
LAW ENFORCEMENT AGENCIES
1. The Ghana Police Service
GHANA POLICE SERVICE
Duties of the Ghana Police Service Under the Police Service Act, 1970 (Act 350)
1.to prevent and detect crime; 2.to apprehend offenders;
3.to maintain public order; and
The Ghana Police Service
Sec. 1 of the Act imposes a duty on the Police Service to prevent and detect crime, to apprehend offenders and to maintain public order and safety of persons and property.
This provision therefore gives the Police Service the authority over any crime committed in Ghana.
Under various protocols and
international agreements to which Ghana is a signatory, the Police
Service has also been given power to coordinate and work with other
international law enforcement
agencies in preventing, and fighting international crimes.
Economic and Organised Crime
Office
1. Nature of the Economic and Organised Crime Office (EOCO).
2. The Objects of EOCO. 3. The Functions of EOCO 4. Powers of EOCO
Economic and Organised Crime Office
This Act basically sets up the EOCO as a specialized law
enforcement agency for
investigating major economic and organised crimes.
Sec. 1 Establishes EOCO as a body corporate with
perpetual succession. It can sue and be sued.
It can acquire and own property
Economic and Organised Crime Office (EOCO)
a. To prevent and detect organised crime; and b.to facilitate the
confiscation of the proceeds of crime.
Sec. 2
Economic and Organised Crime Office (EOCO)
a. Investigate and on the authority of the Attorney-General prosecute serious offences that involve - i. financial/economic loss to the
state, its agencies and institutions in which the state has financial interest;
ii. money laundering, iii. human trafficking,
iv. prohibited cyber activity, v. tax fraud,
vi. other serious offences
Economic and Organised Crime Office (EOCO)
Other serious offences include i. Corruption
ii. Terrorism financing iii. Murder
iv. Smuggling
v. Illegal dealing in Narcotics. vi. Sexual exploitation
vii. Illicit arms trafficking
viii. Trafficking in stolen goods ix. Counterfeiting and piracy of products.
x. Extortion,
xi. Insider trading and market manipulation
Sec. 74
Economic and Organised Crime Office (EOCO)
xii Participation in an organised criminal group
xiii. Grievous bodily harm xiv. Armed robbery
xv. Other similar or related offences punishable with inprisonment for a period of not less than twelve
months.
Sec. 74
Economic and Organised Crime Office (EOCO)
b. recover proceeds of crime
c. monitor activities connected with offences specified in (a) to detect correlative crimes
d. take reasonable measures necessary to prevent the commission of crimes
specified in (a) and their correlative crimes
e. disseminate information gathered in the course of investigations to law
enforcement agencies and other appropriate bodies
f. cooperate with relevant foreign or international agencies
g. perform any other functions connected with its objects
Economic and Organised Crime Office (EOCO)
Sec. 18 – Police Powers.
Sec. 19 - Power to request for information/documents.
Sec. 20 – Power to search and seize documents.
Sec, 23 – Power to seize currency. Sec. 24 – Power to seize tainted
property
Sec. 25 - Power to search for and seize tainted property.
Sec. 27 – Power to search without warrant in an emergency
Sec. 33 - Power to Freeze assets.
Sec. 41 – Power to request declaration of property and income.
Economic and Organised Crime
Office (EOCO) This Section grants police powers to the Executive Director and Deputy Executive Directors. It also gives the Executive Director the authority to grant police powers to any other officers.
Economic and Organised Crime Office (EOCO)
EOCO can request for documents and information and any person or entity requested is obliged to provide such information /document within the time specified.
If person requested is unable to
provide document ED shall request to state where document is or give reason for inability to produce the document.
Where document is produced copies or extracts may be made.
It is a crime to willfully refuse, conceal or otherwise fail to produce a
document which is requested.
Sec. 19 - Power to request for
Economic and Organised Crime Office (EOCO)
Under this provision an ex parte application can be made to a court by the ED to
search and remove a document if
a. the one in possession fails or refuses to produce it;
b. if the ED is of the opinion that service of the application on notice will prejudice the investigation; or
c. it is not practicable to give a disclosure notice requiring production of the
document.
The Office can keep any such document for the period necessary for the
investigation provided that an
application can be made to the court for their return.
Economic and Organised Crime Office (EOCO)
The EOCO can seize or order the seizure of currency if
a. It exceeds the amount authorised by the Bank of Ghana;
b. There is reasonable grounds to suspect that it is either proceeds of crime or intended for use in the commission of a serious crime; or
c. The holder of the currency is unable to provide satisfactory explanation for its source.
If one month of the seizure an application shall be made to court for confiscation to the State unless within the period the owner makes a claim of it to the ED or to a court for an order to release the
currency.
Economic and Organised Crime Office (EOCO)
Property which the ED has reasonable grounds to suspect is the proceeds of a serious offence can be seized provided that such property shall be released if no charges are preferred against the suspect within 14
working days of the seizure.
However the court can order continued seizure for a cumulative period of up to two years from the date of
seizure at the rate of three months at a time.
Sec. 24 – Power to seize tainted
Economic and Organised Crime Office (EOCO)
The following can be done
a. A search of a person in respect of tainted property; or
b. Entry unto any land or premises to conduct a search and seizure of property which the officer has
reasonable grounds to believe is tainted. The search can be of the
- body and clothing being worn
- property in or apparently under the control of the suspect,
- Property of the owner or occupier of the land or premises
The Search may be under warrant or without warrant in emergencies.
Economic and Organised Crime Office (EOCO)
EOCO may make an application to the Court and the court may order the
a. interception , detention and opening of an article in the course of transmission by postal or courier service
b. Interception of a message transmitted or received by any means;
c. Interception and listening to any conversation by any means of communication; or
d. Entry into and installation on a premises of a device for the interception and
retention of communications as well as the device used for the recording
Sec. 25 (5)
Economic and Organised Crime Office (EOCO)
A search generally may be conducted if there is reasonable grounds to suspect that there is, may or could be tainted property on land or in any premises The following can happen in a search
a. If any property is found and there are reasonable grounds to believe it is
tainted and yet it is not specified in the search warrant or that it is related to another serious offence, it may b seized. b. Any article could be seized if it is
believed on reasonable grounds to
afford evidence as to the commission of the offence or of another serious
offence.
Economic and Organised Crime Office (EOCO)
1. A search and seizure without warrant may be conducted if there is
reasonable grounds to suspect that
a. a particular property is tainted and will provide evidence of a serious offence, b. It necessary to search and seize in
order to prevent its concealment, loss or destruction, and
c. The circumstances don’t make it feasible to apply to a court for a warrant.
2. Property may be seized if there is reasonable grounds to believe it is
either tainted or can afford evidence of a serious offence.
Sec. 27 – Power to search without
Economic and Organised Crime Office (EOCO)
1. Where the ED considers that freezing of property is necessary to facilitate an investigation or trial he may in writing direct the freezing of
a. The property of a person or rntoty being investigated; or
b. Specified property held by a person or entity other that the person or entity being investigated or tried. 2. The Ed has to apply to the court for
confirmation of his freezing order within 14 days.
Economic and Organised Crime
Office (EOCO) Where a person is charged with an offence under Act 804 the ED may
request him to make a declaration of his property and income within 28 days of receipt of the notice.
The declaration shall be filed with the Auditor-General and the ED notified.
Sec. 41 – Power to request declaration of property and
Economic and Organised Crime Office (EOCO)
- Sec.41 -Any asset not declared is subject to confiscation.
- Accused is also liable to criminal penalty for
intentionally or negligently failing to disclose information required to be disclosed.
- Sec. 45- Upon conviction all assets are deemed to be
proceeds of serious crime and onus is on convict to prove
otherwise.
Sec. 41
Consequences of Income and
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