The prevention of money laundering and combating the financing of terrorism
Status of the guidance
1.51 POCA requires a court to take account of industry guidance, such as this, that has been approved by a Treasury minister when considering whether a person within the regulated sector has committed the offence of failing to report. Similarly, the Terrorism Act requires a court to take account of such approved industry guidance when considering whether a person has failed to report under that Act (Section 21A(6) of the Terrorism Act.). The Regulations require that a court must consider whether someone has followed this guidance if they are prosecuted for failing to comply with the Regulations. (Sections 330 and 331 of POCA, section 21(6) of the Terrorism Act and Regulation 86(2).)
1.52 Casino operators must be able to demonstrate that they have taken all reasonable steps to comply with all the AML requirements. If they can demonstrate to a court and/or the Commission that they have followed this guidance then the court or the Commission is obliged to take that into account.
1.53 While the Commission is not a 'designated supervisory authority' under the Regulations (Regulation 76.), an ordinary code provision (Ordinary code provision 2.1.1.) within the licence conditions and codes of practice requires casino operators to act in accordance with this guidance.
1.54 The Commission and other agencies or authorities that have the appropriate authorisation under POCA in England and Wales (See The Proceeds of Crime Act 2002 (References to Financial Investigators) (England and Wales) Order 2015 (Statutory Instrument No. 2015/1853), as amended.) can, in certain circumstances, apply for orders and warrants in relation to money laundering, for the purpose of for example:
- requiring a specified person to produce certain material
- permitting the search of and seizure of material from specified premises
- requiring a financial institution to provide customer information relating to a specified person
1.55 The guidance provides a sound basis for casino operators to meet their legislative and regulatory obligations when tailored by operators to their particular business risk profile. Departures from this guidance, and the grounds for doing so, should be documented and may have to be justified to, amongst others, the Commission.
Next chapter: Licence conditions and codes of practice