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Money Laundering (Amendment No. 11) (Jersey) Order 2020

Article

1                 Amendment of Money Laundering (Jersey) Order 2008. 3

2                 Article 1 (interpretation) amended. 3

3                 Article 11 (policies, procedures and training to prevent and detect money laundering) amended   3

4                 Article 13 (application and timing of customer due diligence measures) amended   3

5                 Article 15 (Circumstances for applying enhanced customer due diligence measures) amended   4

6                 Articles 16 and 16A substituted. 4

7                 Article 17A (circumstances in which exemptions under this Part do not apply) amended   9

8                 Article 17C (exemption from applying third party identification requirements in relation to certain relevant customers involved in unregulated or non-public funds, trust company business or the legal profession) amended. 9

9                 Article 17D (obligations of relevant person who is exempt from applying third party identification requirements) amended. 9

10              Article 19 (records to be kept) amended. 9

11              Article 21 (reporting procedures and related disclosure requirements) amended   10

12              Article 22A (disclosure within the relevant person’s organization) amended   10

13              Schedule amended. 10

14              Amendment of Proceeds of Crime (Duties of Non-Professional Trustees) (Jersey) Order 2016  10

15              Citation and commencement. 11

Table of Endnote References. 12

 

 


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Money Laundering (Amendment No. 11) (Jersey) Order 2020

Made                                                                                                 5th February 2020

Coming into force                                                                      12th February 2020

THE MINISTER FOR EXTERNAL RELATIONS makes this Order under Articles 37 and 43 of the Proceeds of Crime (Jersey) Law 1999[1], having consulted the Jersey Financial Services Commission –

1        Amendment of Money Laundering (Jersey) Order 2008

(1)     This Order amends the Money Laundering (Jersey) Order 2008[2].

(2)     In this Order, a reference to an Article by number only is a reference to the Article of the same number in the Money Laundering (Jersey) Order 2008.

2        Article 1 (interpretation) amended

In Article 1(1), for the definition of “obliged person” there is substituted –

“ “obliged person” means a person who the relevant person knows or has reasonable grounds for believing is –

(a)     a relevant person in respect of whose financial services business the Commission discharges supervisory functions; or

(b)     a person carrying on equivalent business;”.

3        Article 11 (policies, procedures and training to prevent and detect money laundering) amended

In Article 11, paragraph (5) is deleted.

4        Article 13 (application and timing of customer due diligence measures) amended

In Article 13(11), for “Article 15” there is substituted “Articles 15, 15A and 15B”.

5        Article 15 (Circumstances for applying enhanced customer due diligence measures) amended

In Article 15 –

(a)     in paragraph (1), “any situation which by its nature can present a higher risk of money laundering and in any of” is deleted;

(b)     after paragraph (1)(f), there is inserted –

“(g)    any situation which by its nature can present a higher risk of money laundering.”;

(c)     in paragraph (2), for “Article 1(c)” there is substituted “paragraph (1)(c)”;

(d)     in paragraph (2)(b)(i), (ii), (iii), (iv) and (v), for “the state” there is substituted “that state”.

6        Articles 16 and 16A substituted

For Articles 16 and 16A there is substituted –

In this Article –

“customer of the obliged person” means –

(a)     a customer of the obliged person;

(b)     a beneficial owner or controller of that customer;

(c)     a third party for whom that customer is acting;

(d)     a beneficial owner or controller of a third party for whom that customer is acting; or

(e)     a person purporting to act on behalf of that customer;

“reliance identification measures” means –

(a)     the identification measures specified in Article 3(2)(a), (aa), (b) or (c); or

(b)     if the obliged person is not in Jersey, similar identification measures that the obliged person applies that satisfy Recommendation 10 of the FATF recommendations.

(2)     A relevant person may, for the purpose of complying with Article 13(1)(a) or (c)(ii), Article 15(1)(a), (b), (d), (e) or (g) or Article 15A, rely on an obliged person to apply reliance identification measures in respect of a customer of the obliged person, but only if –

(a)     the obliged person consents to the reliance;

(b)     the obliged person immediately provides the relevant person with the information obtained from applying the reliance identification measures; and

(c)     the requirements in paragraphs (3), (4) and (5) are met.

(3)     Before relying on the obliged person, the relevant person must assess the risk of doing so and make a written record of the reasons the relevant person considers that it is appropriate to do so, having regard to –

(a)     the higher risk of money laundering should the obliged person fail to carry out any action specified in the assurances obtained under paragraphs (4) and (5); and

(b)     the risk that the obliged person will fail to provide the relevant person with evidence in accordance with paragraph (5)(b).

(4)     The relevant person must obtain adequate assurance in writing from the obliged person that, in the course of an established business relationship or one-off transaction, the obliged person –

(a)     has applied reliance identification measures in relation to the customer;

(b)     has not relied on another party to have applied any reliance identification measures;

(c)     has not, in reliance on any provision in Part 3A (or if the obliged person is not in Jersey, a provision of similar effect), applied measures that are less than equivalent to the reliance identification measures; and

(d)     is required to keep and does keep evidence of the identification (as described in Article 3(4)(b)) relating to each of the obliged person’s customers, including a record of such evidence.

(5)     The relevant person must obtain adequate assurance in writing from the obliged person that the obliged person will –

(a)     keep the evidence obtained from applying the reliance identification measures until –

(i)      the evidence has been provided to the relevant person, or

(ii)      the obliged person has been notified by the relevant person that the relevant person no longer requires that evidence to be kept; and

(b)     if requested by the relevant person, provide the relevant person with that evidence without delay.

(6)     For the purpose of paragraphs (4) and (5) –

(a)     assurance is adequate if it is reasonably capable of being regarded as reliable and the person who relies on it is satisfied that it is reliable; and

(b)     assurance may be given in relation to one or more business relationships and for more than one transaction.

(7)     A relevant person (including a person who was formerly a relevant person) who has given an assurance to another person under paragraph (5) (or under an equivalent provision that applies outside Jersey) must, if requested by the other person, provide the person with the evidence obtained from applying the reliance identification measures.

(8)     A relevant person who relies on an obliged person under this Article must conduct such tests in such manner and at such intervals as the relevant person considers appropriate in all the circumstances in order to establish whether –

(a)     the obliged person has appropriate and consistent policies and procedures in place to apply reliance identification measures;

(b)     if the obliged person has not already provided the evidence to the relevant person, the obliged person –

(i)      keeps the evidence that the obliged person has obtained during the course of applying reliance identification measures in respect of a person, and

(ii)      if requested by the relevant person, provides the relevant person with that evidence without delay; and

(c)     the obliged person may be prevented, by application of a law, from providing the required information or evidence.

(9)     If, as a result of carrying out any such test, a relevant person is not satisfied that the obliged person is meeting a requirement specified in paragraph (8)(a) or (b), the relevant person must immediately apply reliance identification measures.

(10)    Despite a relevant person’s reliance on an obliged person under this Article, a relevant person is liable for any failure to apply reliance identification measures.

(11)    Nothing in this Article permits a relevant person to rely on the reliance identification measures of an obliged person if –

(a)     the relevant person suspects money laundering;

(b)     the relevant person considers that there is a higher risk of money laundering on the basis of the assessment made under paragraph (3); or

(c)     the obliged person is a person having a relevant connection with an enhanced risk state (within the meaning of Article 15).

(1)     In this Article –

“external person” means a person outside Jersey who –

(a)     is not an obliged person;

(b)     is a member of the same financial group as the relevant person; and

(c)     carries on a business which, if that business were carried on in Jersey, would be a financial services business;

“similar identification measures” means similar measures to those specified in Article 3(2)(a), (aa), (b) and (c) that satisfy Recommendation 10 of the FATF recommendations.

(2)     A relevant person may, for the purpose of complying with Article 13(1)(a) or (c)(ii), Article 15(1)(a), (b), (d), (e) or (g) or Article 15A, rely on an external person to apply similar identification measures, but only if –

(a)     the external person consents to the reliance;

(b)     the external person immediately provides the relevant person with the information obtained from applying similar identification measures;

(c)     the financial group applies the customer due diligence measures and record keeping requirements required under this Order or in Recommendations 10, 11 and 12 of the FATF recommendations;

(d)     the financial group to which the relevant person and the external person belong maintains a programme against money laundering, which includes policies and procedures by which every member of the financial group who carries on financial services business or equivalent business shares information that is appropriate for the purpose of preventing and detecting money laundering;

(e)     any higher risk of money laundering is adequately mitigated by the policies and procedures applied by the external person;

(f)      the implementation of customer due diligence and record keeping requirements, and of the programme referred to in sub-paragraph (d), are supervised by an overseas regulatory authority; and

(g)     the requirements in paragraphs (3), (4) and (5) have been met.

(3)     Before relying on an external person, the relevant person must assess the risk of doing so and make a written record of the reasons the relevant person considers that it is appropriate to do so, having regard to –

(a)     the higher risk of money laundering should the external person fail to carry out any action specified in the assurances obtained under paragraphs (4) and (5); and

(b)     the risk that the external person will fail to provide the relevant person with evidence in accordance with paragraph (5)(b).

(4)     The relevant person must obtain adequate assurance in writing from the external person that, in the course of an established business relationship or one-off transaction, the external person –

(a)     has applied similar identification measures in relation to the customer;

(b)     has not relied on another party to have applied any of those identification measures;

(c)     has not, in reliance on any provision of similar effect to a provision in Part 3A, applied measures that are less than equivalent to similar identification measures; and

(d)     is required to keep and does keep evidence of the identification (as described in Article 3(4)(b)) relating to each of the external person’s customers, including a record of such evidence.

(5)     The relevant person must obtain adequate assurance in writing from the external person that the external person will –

(a)     keep the evidence obtained from applying similar identification measures until –

(i)      the evidence has been provided to the relevant person, or

(ii)      the external person has been notified by the relevant person that the relevant person no longer requires that evidence to be kept; and

(b)     if requested by the relevant person, provide the relevant person with that evidence without delay.

(6)     For the purpose of paragraphs (4) and (5) –

(a)     assurance is adequate if it is reasonably capable of being regarded as reliable and the person who relies on it is satisfied that it is reliable; and

(b)     assurance may be given in relation to one or more business relationships and for more than one transaction.

(7)     A relevant person who relies on an external person under this Article must conduct such tests in such manner and at such intervals as the relevant person considers appropriate in all the circumstances in order to establish whether –

(a)     the external person has appropriate and consistent policies and procedures in place to apply similar identification measures;

(b)     if the external person has not already provided the evidence to the relevant person, the external person –

(i)      keeps the evidence that the external person has obtained during the course of applying similar identification measures in respect of a person, and

(ii)      if requested by the relevant person, provides the relevant person with that evidence without delay; and

(c)     the external person may be prevented, by application of a law, from providing the required information or evidence.

(8)     If, as a result of carrying out any such test, a relevant person is not satisfied that the external person is meeting a requirement specified in paragraph (7)(a) or (b), the relevant person must immediately apply similar identification measures.

(9)     Despite a relevant person’s reliance on an external person under this Article, a relevant person is liable for any failure to apply similar identification measures.

(10)    Nothing in this Article permits a relevant person to rely on similar identification measures applied by an external person if –

(a)     the relevant person suspects money laundering;

(b)     the relevant person considers that there is a higher risk of money laundering on the basis of the assessment made under paragraph (3); or

(c)     the external person is a person having a relevant connection with an enhanced risk state (within the meaning of Article 15).”.

7        Article 17A (circumstances in which exemptions under this Part do not apply) amended

In Article 17A –

(a)     in paragraph (1)(d) for “Article 15(3A)” there is substituted “Article 15(1)(c)”;

(b)     in paragraph (2) for “Article 15(4)” there is substituted “Article 15B(1)”.

8        Article 17C (exemption from applying third party identification requirements in relation to certain relevant customers involved in unregulated or non-public funds, trust company business or the legal profession) amended

In Article 17C, after paragraph (3) there is inserted –

“(4)    A relevant person (including a person who was formerly a relevant person) who has given an assurance to another person under paragraph (2)(b) (or under an equivalent provision that applies outside Jersey) may, if requested by the other person, provide the person with the information or evidence obtained from applying the identification measures referred to in paragraph (2)(b)(i).”.

9        Article 17D (obligations of relevant person who is exempt from applying third party identification requirements) amended

In Article 17D –

(a)     in paragraph (1) for “Article 17B” there is substituted “Article 17C”;

(b)     in paragraph (3) for “, as often as the relevant person considers appropriate, establish” there is substituted “, in the manner, and as often as, the relevant person considers appropriate in all the circumstances, conduct tests in order to establish”;

(c)     in paragraph (3) there is inserted “in conducting such tests” before “consider”;

(d)     in paragraph (4) for “at any time” there is substituted “, as a result of conducting tests under paragraph (3),”.

10      Article 19 (records to be kept) amended

In Article 19 –

(a)     paragraphs (5) and (6) are deleted;

(b)     in paragraph (7), for “Article 15(4B)(f)” there is substituted “Article 15B(2)(f)”.

11      Article 21 (reporting procedures and related disclosure requirements) amended

In Article 21 –

(a)     in paragraph (1)(h), for “using the form set out in the Schedule to this Order (“Form”)” there is substituted “using the approved form”;

(b)     in paragraph (2)(a) and (b), for “Form” there is substituted “approved form”;

(c)     for paragraph (3)(a) and (b), there is substituted –

“(a)    the approved form is delivered in the manner indicated on the approved form; and

(b)     any information entered on or accompanying the approved form is legible.”;

(d)     after paragraph (6), there is inserted –

“(7)    In this Article, “approved form” means the form approved by the Minister for the purpose of this Article.”.

12      Article 22A (disclosure within the relevant person’s organization) amended

In Article 22A, “(as defined in Article 16A(2))” is deleted.

13      Schedule amended

The Schedule is deleted.

14      Amendment of Proceeds of Crime (Duties of Non-Professional Trustees) (Jersey) Order 2016

Article 3 of the Proceeds of Crime (Duties of Non-Professional Trustees) (Jersey) Order 2016[3] is amended as follows –

(a)     in paragraph (2)(b)(iii), for “Article 15” there is substituted “Articles 15, 15A and 15B”;

(b)     for paragraph (2)(b)(iv) there is substituted –

“(iv)   Article 16 (as though references to “obliged person” were, despite the definition of “obliged person” in Article 1(1) of that Order, references only to a person carrying on equivalent business), except for Article 16(7), and”;

(c)     in paragraph (2)(c) “except for Article 19(5) and (6)” is deleted.

15      Citation and commencement

This Order may be cited as the Money Laundering (Amendment No. 11) (Jersey) Order 2020 and comes into force 7 days after it is made.

SENATOR I.J. GORST

Minister for External Relations




[1]                                     chapter 08.780

[2]                                     chapter 08.780.30

[3]                                     chapter 08.780.50


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