The prevention of money laundering and combating the financing of terrorism
8 - Status of the guidance
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 (opens in a new tab) requires a court to take account of such approved industry guidance when considering whether a person has failed to report under that Act 20. 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.21
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 either a court, the Commission or both, that they have followed this guidance, then the court or the Commission is obliged to take that into account.
While the Commission is not a 'designated supervisory authority' under the Regulations 22 an ordinary code provision 23 within the licence conditions and codes of practice requires casino operators to act in accordance with this guidance.
The Commission and other agencies or authorities that have the appropriate authorisation under POCA in England and Wales 24 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.
The guidance provides a sound basis for casino operators to meet their statutory 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.
20 Section 21(A)6 (link opens in a new tab) of the Terrorism Act.
21 Sections 330 (link opens in a new tab) and 331 (link opens in a new tab) of POCA, section 21(6) (link opens in a new tab) of the Terrorism Act and Regulation 86(2).
22 Regulation 76.
23 Ordinary code provision 2.1.1.
24 See The Proceeds of Crime Act 2002 (References to Financial Investigators) (England and Wales) Order 2015 (Statutory Instrument No. 2015/1853) (link opens in a new tab), as amended.
Content of the guidance Next section
Licence conditions and codes of practice
Last updated: 13 November 2020
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