Money laundering under Maltese criminal law

Abstract

The aim of this dissertation is to analyse money laundering as a criminal offence, by analysing its definition under Maltese law and the elements required to prove the offence in a court of law. This shall be done by analysing the interpretation given by the Maltese Courts with regards to the provisions of the Prevention of Money Laundering Act when deciding money laundering cases. This dissertation shall also analyse the interpretation given by International Conventions which formed the basis of Maltese Money Laundering Legislation. An overview of the key player in the fight against money laundering shall be provided whereby the importance of financial intelligence in money laundering investigations shall be discussed. Chapter I introduces the concept of money laundering and explains how the crime of money laundering was introduced into the Maltese legal regime through the enactment of the Prevention of Money Laundering Act. An overview of the most salient amendments which have taken place over the years shall also be given, in particular reference shall be made to the amendments to the Second Schedule which was replaced by an all crime regime. This Chapter makes also reference to the Prevention of Money Laundering and Funding of Terrorism Regulations which lays down the preventative measures that various financial and non-financial businesses and professionals are expected to carry out to deter money laundering. Chapter II shall contain an in depth analysis of the definition of the offence of money laundering according to International standards and subsequently under Maltese Law. The aim is to better understand the most important elements that constitute money laundering and its most salient legal principles. This part of the dissertation would provide a detailed understanding of the legal provisions of money laundering, which shall include the comparison of local and foreign legislation with particular emphasis on the definition per se of the offence. In this section, an analysis of the influence that international bodies, such as the Financial Action Task Force (FATF) and other international conventions, such as the Vienna Convention, Palermo Convention and the Warsaw Convention, had on Maltese Legislation. The European Directives also play a pivotal role in the shaping and continued development of Chapter 373. Chapter III shall focus on criminal investigations and prosecution of money laundering. An analysis of local case law, focusing particularly on the interpretation of the Maltese Courts, with reference to the judiciary’s interpretation and the actual implementation of the law by the judicature and their view on the definition given in Chapter 373. In this part of the dissertation, the grounds for prosecution, shift of the burden of proof, the link to the predicate offence, the principle of ‘ne bis in idem’ and its applicability when prosecuting ML shall be examined. Chapter IV shall include an overview with regards to the key player in the fight against money laundering, whereby the importance of financial intelligence in money laundering investigations shall be discussed. A brief overview of the FIAU’s roles and functions shall be given. Finally, the conclusion shall wrap up the various arguments brought forward throughout the dissertation. The author of this dissertation shall also state his opinion in relation to changes which should be considered in the Prevention of Money Laundering Act, in particular to sections of the law which are not very clear or are too much open for interpretation and need to be more restrictive, such as what is referred to as the all crime regime, found in the Second Schedule of the Act and whether the legislator should consider differentiating between self-laundering and third-party laundering in the definition.