Legislation

MONEY LAUNDERING (PREVENTION AND CONTROL) ACT

PROCEEDS OF CRIME ACT

MONEY LAUNDERING (PREVENTION AND

CONTROL) ACT, 1998 -38

Arrangement of Sections

Section

PRELIMINARY

Citation

1. Short title

Interpretation

2. Definitions

Part I

MONEY LAUNDERING

3. Money laundering

4. Jurisdiction

Part II

ANTI-MONEY LAUNDERING PROVISIONS

5. Anti-Money Laundering Authority

6. Powers and duties of the Authority

7. Customer identity

8. Duties of financial institutions

9. Internal reporting procedures

10. Further precautionary measures

11. Search warrant

12. Other measures to prevent money laundering

Part Ill

FREEZING AND FORFEITURE OF ASSETS IN

RELATION TO MONEY LAUNDERING

13. Freezing of property

14. Forfeiture of property

Part IV

MISCELLANEOUS

15. Investigation of offences

16. Interference with members, constables, etc.

17. Liability of Offices of bodies corporate

18. Application of Proceeds of Crime Act

19. Mandatory injunction

20. Offence of money laundering

21. Offence committed by a body of persons

22. Other offences

23. Regulations

24. Amendment of enactment in Schedule

25. Commencement SCHEDULE

I assent

C. STRAUGHN HUSBANDS

Governor-General

18th December, 1998.

1998 —38

An Act to provide for the prevention and control of money-laundering and for related matters.

(By Proclamation). Commencement

ENACTED by the Parliament of Barbados as follows:

PRELIMINARY

Citation

1. This Act may be cited as the Money Laundering Short title (Prevention and Control) Act, 1998.

Interpretation

Definitions 2. (1) In this Act,

“account” means any facility or arrangement by which a financial institution does any one or more of the following:

(a) accepts deposits of currency,

(b) allows withdrawals of currency or transfer between accounts,

(c) pays cheques or payment orders drawn on a financial institution by, or collects cheques

or payment orders on behalf of, a person,

(d) supplies a facility or arrangement for a safety deposit box;

“Authority” means the Anti-Money Laundering Authority appointed by the Minister under section 5;

“Business transaction”

(a) means any arrangement, including opening an account, between two or more persons

where the purpose of the arrangement is to facilitate a financial transaction between the persons concerned, and

(b) includes

(i) any related transaction between any of the persons concerned and another

person, and

(ii) the making of a gift;

“Business transaction record” includes

(a) the identification records of all the persons who are a party to the transaction,

(b) a description of the transaction sufficient to identify its purpose and method of execution,

(c) the details of any account used for the transaction, including Bank, Branch and Sort Code, and

(d) the total value of that transaction;

“Court” means the High Court;

“Document” means any record of information, and includes

(a) anything on which there is writing,

(b) anything on which there are marks, figures, symbols or

perforations having a meaning for persons qualified to interpret them,

(c) anything from which sounds, images or writings can be reproduced with or withou the aid of anything else, and

(d) a map, plan, drawing or photograph;

“Financial institution”

(a) means any person who carries on business Act 1996-16 under the Financial Institutions Act; and

(b) includes

(i) a deposit taking institution,

(ii) a credit union within the meaning of the Co-operatives Societies Act, Cap. 378A

(iii) a building within the Building Societies Act, Cap. 377

(iv) a friendly society within the meaning of

the Friendly Societies Act,

(v) an insurance business within the meaning of the Insurance Act, and 1996-32

(vi) an off-shore bank within the meaning of the Offshore Banking Act, Cap. 325

(vii) an exempt insurance company within the meaning of the Exempt Insurance Act, Cap. 308A

(viii) an international business company within the meaning of the International Business Companies Act, Cap. 77

(ix) a society with restricted liability within the meaning of the Societies with Restricted Liability Act,1995, Act 1995-7

(x) a foreign sales corporation within the meaning of the Barbados Foreign Sales Corporation Act, Cap. 59C

(xi) a mutual fund, mutual fund administrator and a mutual fund manager;

(xii) international trusts within the meaning of the International Trusts Act, 1995. Act 1995-14

“Freezing” means restraining any transaction or dealing in property;

“Identification record” means

(a) in the case of a corporate body,

(i) certified copies of the certificate of incorporation, authenticated where the body is incorporated abroad, and other necessary documents filed with the Registrar of Corporate Affairs and Intellectual Property and any amendments thereto,

(ii) the certificate of continuance issued pursuant to section 352 or 356.2 of the Companies Act Cap.308 , and other necessary documents filed with the Registrar of Corporate Affairs and Intellectual Property and any amendments thereto,

(iii) the certificate of registration, where the body corporate was incorporated abroad and registered under the Companies Act, and other necessary documents filed with the Registrar of Corporate Affairs and Intellectual Property for registration as an external company and any annual returns filed

(iv) the name, address, occupation, nationality and such other evidence as may satisfy the financial institution that the directors and shareholders are who they claim to be;

(b) in the case of an individual, sufficient documentary evidence to prove to the satisfaction of a financial institution that the individual is who that individual claims to be, and for the purposes of paragraphs (a) and (b) “person” includes a nominee, agent, beneficiary or principal in relation to a business transaction;

“Minister” means Minister responsible for Finance;

“Money laundering” has the meaning assigned to it by section 3;

“Proceeds of crime” means the proceeds of unlawful activity wherever committed and includes any property that is mingled with property that is proceeds of unlawful activity;

“Property” includes money and all other property real or personal, including things in action and other intangible or incorporeal property wherever situate and includes any interest in such property

“Unlawful activity” means any activity which under any law anywhere is a crime and is punishable by death or by imprisonment for a period of not less than twelve months.

(2) A reference in this Act to a document includes a reference to,

(a) any part of a document;

(b) any copy, reproduction or duplicate of the document or of any part of the document; or

(c) any part of such copy, reproduction or duplicate.

Part I

MONEY LAUNDERING

Money 3. (1) A person engages in money laundering where laundering

(a) the person engages, directly or indirectly, in a transaction that involves money o other

property, that is proceeds of crime; or

(b) the person receives, possesses, conceals, disposes of, or brings into or sends out of Barbados, any money or other property that is proceeds of crime.

(2) For the purposes of this section a person engages in money laundering whether he knows or has reasonable grounds to suspect that the property is derived or realised directly or indirectly from some form of unlawful activity, or, where the person is

(a) an individual, he fails without reasonable excuse to take reasonable steps to ascertain whether or not the property is derived or realised directly or indirectly, from some form of unlawful activity; or

(b) a financial institution, the person fails to take reasonable steps to implement or apply procedures to control or combat money laundering.

Jurisdiction 4. Any act done by a person outside Barbados with intent to do that act within Barbados is, if it would be an offence within Barbados, an offence under this Act.

Part II

ANTI-MONEY LAUNDERING PROVISIONS

5.(1) ‘The Minister shall appoint a body to be known as the “Anti-Money Laundering Authority” to supervise financial institutions in accordance with this Act.

(2) The Authority shall comprise such persons as the Minister may determine who have a sound knowledge of banking, financial and legal matters.

Power and duties of the Authority 6. The Authority

(a) shall receive the reports issued by financial institutions pursuant to the provisions of section 8(l)(c);

(b) shall, if, having considered any report referred to in paragraph (a), the Authority has reasonable grounds to believe that the business transaction involves proceeds of crime, send the report to the Commissioner of Police;

(c) shall establish training requirements and provide such training for any financial institution in respect of the business transaction record keeping and reporting obligations required by this Act;

(d) may instruct the financial institution to take such steps as may be appropriate to facilitate

any investigation by the Authority;

(e) may compile statistics and records, disseminate information within or outside Barbados, make recommendations arising out of any information received, issue guidelines to financial institutions and advise the Minister;

(f) may consult with any person, institution or organisation for the purposes of the exercise of its powers or duties under Act; and

(g) shall not conduct any investigation into money laundering other than for the purpose of ensuring compliance by a financial institution with this Act.

7. (1) A financial institution shall take reasonable measures to satisfy itself as to the true identity of any applicant identity seeking to enter into a business relationship with it, or to carry out a transaction or series of transactions with it by requiring the applicant to produce the applicant’s identification record.

(2) Where an applicant requests a financial institution to enter into any transaction, the institution shall take reasonable measures to establish whether the person is acting on behalf of another person.

(3) Where it appears to a financial institution that an applicant requesting it to enter into any transaction is acting on behalf of another person, the institution shall take reasonable measures to establish the true identity of any person on whose behalf or for whose ultimate benefit the applicant may be acting in the proposed transaction, whether as trustee, nominee, agent, or otherwise.

(4) In determining what constitutes reasonable measures for the purposes of subsection (1) or (3), regard shall be had to all the circumstances of the case, and in particular,

(a) to whether the applicant is a person based or incorporated in a country in which there are in force provisions applicable to it to prevent the use of the financial system for the purpose of money laundering; and

(b) to such custom and practice as may from time to time be current in the relevant business.

(5) Nothing in this section requires the production of any evidence of identity where

(a) the applicant is itself a financial institution to which this Part applies; or

(b) there is a transaction or a series of transactions taking place in the course of a business relationship, in respect of which the applicant has already produced satisfactory evidence of identity.

8. (1) Every financial institution

(a) shall establish and maintain for a period of five years

(i) business transaction records of all business transactions exceeding $10,000 or its equivalent in foreign currency for a period of five years after the termination of the business transaction;

(ii) a record that indicates the nature of the evidence obtained, and which comprises either a copy of the evidence or such information as would enable a copy of it to be obtained where evidence of a person’s identity is obtained in accordance with section 7;

(1,) shall forthwith, report to the Authority, any business transaction where the identity of the person involved, the transaction or any other circumstance concerning that business transaction gives any officer or employee of the financial institution reasonable grounds to suspect that the transaction involves proceeds of crime or is of an unusual nature;

(c) shall comply with any instruction issued to it by the Authority pursuant to section 6

(d) shall

(i) permit any member of the authority or any person duly authorised by it, upon request, to enter into any premises of the financial institution during normal working hours and inspect the records kept pursuant to paragraph (a),

(ii) permit any member of the Authority or any person duly authorised by it, to make any notes or take any copies of the whole or any part of any such record, and

(iii) answer any questions of the Authority or any person duly authorised by it, in relation to such records;

(e) shall

(i) develop and apply internal policies, procedures and controls to combat money laundering, and

(ii) develop audit functions to evaluate such policies, procedures and controls;

(f) shall comply with the training requirements created and guidelines issued provided by the Authority in accordance with paragraphs (c) and (e) of section 6

(g) shall develop a procedure to audit compliance with this section.

(2) Customer accounts of a financial institution shall be kept in the true name of the account holder.

(3) Records required under subsection (1 )(a) shall contain particulars sufficient to identify the

(a) the name, address and occupation (or where appropriate the business or principle activity) of each person

(i) conducting the transaction, or

(ii) on whose behalf the transaction is being conducted,

and the method used by the financial institution to verify the identity of each such person

(b) nature and date of the transaction;

(c) type and amount of currency involved;

(d) the type and identifying number of any account with the financial institution involved in the transaction

(e) if the transaction involves a negotiable instrument other than currency, the name of the drawer of the instrument, the name of the institution on which it was drawn, the name of the payee (if any), the amount and date of the instrument, the number (if any) of the instrument and details of any endorsements appearing on the instrument;

(f) the name and address of the financial institution, and of the officer, employee or agent of the financial institution who prepared the report.

9. (1) A financial institution shall establish and maintain internal reporting procedures to

(a) identify persons to whom an employee is to report any information which comes to the employee’s attention in the course of employment, and which gives rise to knowledge or suspicion by the employee that another person is engaged in money laundering;

(b) enable any person identified in accordance with paragraph (a) to have reasonable access

to information that may be relevant to determining whether sufficient basis exists to report the matter pursuant to paragraph (b) of section 8(1).

(2) A report for the purposes of subsection (1) may be made by letter, facsimile or mechanical or electronic means.

10. A financial institution shall establish and maintain internal reporting procedures to:

(a) take appropriate measures for the purpose of making employees aware of the laws of Barbados relating to money-laundering, and the procedures and related policies established and maintained by it pursuant to this Part; and

(b) provide its employees with appropriate training in the recognition and handling of

money-laundering transactions.

11. A magistrate may, in accordance with section 84 of the Magistrates ‘ Courts Act, issue to any police officer a Search warrant to enter any premises belonging to, in the possession or control of a financial institution or any officer or employee of such institution and to search the premises and remove any document, material or other thing therein if the magistrate is satisfied by evidence on oath that there are reasonable grounds to believe that

(a) a financial institution has failed to keep a business transaction record as required by paragraph (a) of section 8 (1);

(b) a financial institution has failed to comply with paragraph (b) of section 8(1);

(c) an officer or employee of a financial institution is committing, has committed or is about to commit a money laundering offence.

12. (1) A person who has been convicted of an indictable offence may not be licensed to canyon the business of a financial institution; and where the person is a financial institution its licence shall, without further action, be cancelled.

(2) For the purposes of this section the expression “indictable offence” shall be deemed to include any similar offence committed abroad.

Part111

FREEZING AND FORFEITURE OF ASSETS IN

RELATION TO MONEY LAUNDERING

13. (1) The Court may, where it is satisfied upon property application by the Director of Public Prosecutions that a person has been charged or is about to be charged with a money laundering offence, grant an order freezing the property of, or in the possession or under the control of, that person.

(2) The Court may, m making an order under subsection (1) give directions with regard to

(a) the duration of the freezing order; or

(b) the disposal of the property for the purpose of

(i) determining any dispute relating to the ownership of or other interest in the

property or any part thereof,

(ii) its proper administration during the period of freezing,

(iii) the payment of debts incurred in good faith prior to the making of the order,

(iv) the payment of moneys to the person referred to in subsection (1) for the reasonable subsistence of that person and his family;

(v) the payment of the costs of the person referred to in subparagraph (iv) to defend criminal proceedings against him

(3) An order made under subsection (1) shall cease to have effect at the end of the period of seven days after the order was made if the person against whom the order was made has not been charged with a money laundering offence within that period.

(4) The Crown is not liable for any damages or costs arising directly or indirectly from the making of an order under subsection (1) unless it is proved that the application for the order was made in bad faith.

(5) Where the Court makes an order for the administration of frozen property the person charged with the administration of the property is not liable for any loss or damage to the property or for the costs of proceedings taken to establish a claim to the property or to an interest in the property unless the court in which the claim is made is of the opinion that the person has been guilty of negligence in respect of the taking of custody and control of the property.

14. (1) The Court may, upon application by the Director of Public Prosecutions, forfeit any property of or in the possession or under the control of any person who is convicted of a money laundering offence or any property of that person that is the subject of a freezing order, unless it is proved that the property did not derive from money laundering.

(2) For the purposes of subsection (1) the burden of proof lies on the person who owns or in whose possession or control the property is.

(3) In determining whether or not any property is derived from money laundering the standard of proof required for the purposes of subsections (1) and (2) is the same as in criminal proceedings.

(4) In making a forfeiture order the Court may give directions

(a) for the purpose of determining any dispute as to the ownership of or other interest in the

property or any part thereof; and

(b) as to the disposal of the property.

(5) Upon application to the Court by a person against whom a forfeiture order has been made under this section, the Court may order that an amount deemed by the Court to be value of the property so ordered to be forfeited, be paid by that person to the Court and upon satisfactory payment of that sum by that person the property ordered to be forfeited shall be returned to him.

Part IV

MISCELLANEOUS

15. (1) Where a magistrate is satisfied by information on oath that there are reasonable grounds for believing that

(a) an offence under this Act has been committed, and

(b) a document or thing that may afford evidence of the commission of the offence is likely to be found in any building, thing, receptacle or place,

the magistrate may at any time issue a wan-ant under his hand authorising any constable or other person named in the Warrant to enter and search, by day or by night and if necessary by force, such building, thing receptacle or place for any document or thing that may afford evidence of the commission of the offence and to seize and take away such document or thing.

(2) Where the constable or other person has seized a document or other thing under subsection (1), he shall take it to the Commissioner of Police who may retain the document or thing, taking reasonable care to ensure that it is preserved, until the conclusion of any investigation into the offence in relation to which the document or thing was seized and any trial or appeal relating to the offence.

(3) Where a document or other thing has been seized under subsection (1) a magistrate may, on application of an interested party, order that the document or thing be returned to the person from whom it was seized or person who is otherwise legally entitled thereto if the magistrate is satisfied that the document or thing will not be required for the purposes of an investigation, trial or appeal relating to an offence under this Act

(4) The person from whom any document or thing is seized under subsection (1) is entitled, at all reasonable times and subject to such reasonable conditions as may be imposed by the Commissioner of Police, to inspect the document or thing and, in the case of a document, to obtain a copy thereof

(5) The Commissioner of Police shall be given at least seven days notice of an application made under subsection(3).

(6) The Commissioner of Police shall send to the Authority and the Director of Public Prosecutions a copy of any document or any information derived from anything seized under this section if he has reasonable grounds to suspect that the same may afford evidence of a business transaction involving proceeds of crime.

16. Any person who obstructs, hinders, molests or assaults any member of the Authority, constable or other person in the execution of his duty under this Act is guilty of offence and is liable on summary conviction to a fine of fifty thousand dollars or to imprisonment for a term of two years or both.

17. For the purposes of this Act, any conduct engaged in on behalf of a body corporate

(a) by a director, servant or agent of that body corporate within the scope of his actual or

apparent authority, or

(b) by any other person at the direction or with the consent or agreement whether expressed or implied, of a director, servant or agent of that body corporate where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, servant or agent,

shall be deemed to have been engaged in by the body corporate.

(2) Where it is necessary, for the purposes of this Act, to establish the state of mind of a person in relation to conduct deemed by subsection (3) to have been engaged in by that person, it is sufficient to show that a servant or agent of that person, being a servant or agent by whom the conduct was engaged in within the scope of his actual or apparent authority had that state of mind.

(3) Conduct engaged in on behalf of a person, other than a body corporate,

(a) by a servant or agent of that person within the scope of his actual or apparent authority; or

(b) by any other person at the direction or with the consent or agreement, whether expressed or implied, of a servant or agent of the first mentioned person, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the servant or agent, shall be deemed, for the purposes of this Act, to have been engaged in by the first mentioned person.

(4) A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of that person and that person’s reasons for his intention, opinion, belief or purpose.

18. (1) The following provisions of the Proceeds of Crime Act apply to this Act with such modifications and adaptations as circumstance requires:

(a) section 48 (relating to monitoring orders);

(b)section 49 (relating to the non-disclosure of monitoring orders);

(c) section 55 to 59 (relating to disclosure of income tax information);

(d) section 60 (relating to access to specified information and documents held by Government departments or statutory boards); and

(e) Section 71( relating to the Public Trustee Act)

(2) A reference in sections 48 and 49 of the Proceeds of Crime Act to “financial institution” shall be construed as a reference to “financial institution” within the meaning of this Act.

19. (1) The officers and employees of a financial institution shall take all reasonable steps to ensure the compliance by that financial institution with its obligations wider this Act.

(2) The Court may, where it is satisfied upon application by the Director of Public Prosecutions that a financial institution has failed without reasonable excuse to comply in whole or in part with any obligation, imposed on the institution by paragraphs (a), (b), (c) and (d) of section 8 (1), issue a mandatory injunction against any or all of the officers or employees of that financial institution in such terms as the Court deems necessary to enforce compliance with such obligation

20. (1) A person who engages in money laundering is guilty of an offence.

(2) Any person who attempts or who aids, abets, counsels or procures the commission of, or who conspires to commit the offence of, money laundering is guilty of an offence.

(3) A person guilty of an offence under subsection (1) is liable

(a) on summary conviction to a fine of $200,000 or to imprisonment for 5 years or to both; and

(b) on conviction on indictment to a fine of $2,000,000 or imprisonment for 25 years or to both.

(4) A person guilty of an offence under subsection (2) is liable

(a) on summary conviction to a fine of$ 150,000 or to imprisonment for 3 years or to both; and

(i) on conviction on indictment to a fine of $1,500,000 or imprisonments for 15 years or to both.

21. Where an offence under section 20 is committed by a body of persons, whether corporate or unincorporated, every person who, at the time of the commission of the offence acted in an official capacity for or on behalf of such body of persons, whether as a director, manager, secretary or other similar officer, or was purporting to act in such capacity, is guilty of that offence and shall be tried and punished accordingly.

22. (1) It is an offence for any person who knows or suspects that an investigation into money laundering has been, is being or is about to be made, or that an order has been made or may be made requiring the delivery or production of any document

(a) to divulge that fact or other information to another whereby the investigation is likely to prejudiced; or

(b) to falsify, conceal, destroy or otherwise dispose of, or cause orpennit the falsification, concealment, destruction or disposal of any matter or thing that is or is likely to be material to the investigation.

(2) It is an offence for any person to falsify, conceal, destroy or otherwise dispose of, or cause or permit the falsification, concealment, destruction or disposal of any document, matter or thing that is or is likely to be material to the execution of any order made under section 13(1).

(3) It is an offence for a person who is the subject of an order made under section 13(1) to disclose the existence or operation of the order to any person except to

(a) a police officer named in the order,

(b) an officer or agent of the financial institution named in the order, for the purposes of ensuring that the order is complied with; or

(c) for the purpose of obtaining legal advice or representation in relation to the order.

(4) A person guilty of an offence under subsection (1), (2) or (3) is liable on summary conviction to a fine of $50,000 or imprisonment for 2 years or to both.

23. The Minister may make such regulations as may Regulations be necessary for giving effect to the provisions of this Act.

24. The enactment set out in the first column of the is amended in the respects set out opposite thereto in the second column thereof.

25. This Act shall come into operation on a date to be fixed by proclamation.

SCHEDULE

Enactment

Proceeds of Crime Act Cap 143

1.Delete sections 612 to 64

2.Delete paragraph 4 of the Schedule.

Proceeds of Crime

Arrangement of Sections

Section

Part I

Preliminary

1. Short title

2. Principal objects

3. Interpretation

4. Definition of certain terms etc.

Part II

FORFEITURE ORDERS, CONFISCATION ORDERS

AND RELATED MATTERS

General

5. Application for forfeiture or confiscation order on conviction

6. Notice of application

7. Amendment of application

8. Procedure on application

9. Application for forfeiture order on abscondence

Section

Forfeiture Orders

10. Forfeiture order on conviction

11. Effect of forfeiture order

12. Voidable transfers

13. Protection of third parties

14. Discharge of forfeiture order on appeal and quashing of conviction

15. Payment instead of forfeiture order

16. Application of procedure for enforcing fines

17. Forfeiture order on abscondence

Confiscation Orders

18. Confiscation order on conviction

19. Rules for determining benefit and assessing value

20. Statements relating to benefits from commission of scheduled offences

21. Amount to be recovered under confiscation order

22. Variation of confiscation orders

23. Court may lift corporate veil

24. Enforcement of confiscation orders

Part m

PROVISIONS FOR FACILITATING POLICE

INVESTIGATIONS AND PRESERVING

PROPERTY LIABLE TO FORFEITURE

AN]) CONFISCATION ORDERS

Powers of Search and Seizure

25. Warrant to search land etc. for tainted property

26. Restrictions on issue of search warrants

27. Matters to be included in search warrants

28. Police may seize other tainted property

29. Record of property seized

30. Return of property seized

Restraining Orders

31. Application for restraining order

32. Restraining orders

33. Undertaking by Crown

34. Notice of application for restraining order

35. Service of restraining order

36. Registration of restraining order

37. Contravention of restraining order

38. Duration of restraining order Review of Search Warrants and

Restraining Orders

39. Review of search warrants and restraining orders

40. Automatic expiry of restraining orders

41. Disposal of property seized or dealt with Production Orders, and other information

gathering powers

42. Production and inspection orders

43. Scope of police powers under production order etc.

44. Evidential value of information

45. Variation of production order

46. Failure to comply with production order

47. Search warrant to facilitate investigations

Monitoring Orders

48. Monitoring orders

49. Monitoring orders not to be disclosed

Obligations of Financial Institutions 50. Retention of records of financial institutions

51 Register of original documents

52. Communication of information to law enforcement authorities

53. Protection for financial institution

54. Interpretation

Order for Disclosure of Income

Tax Information

55. Application for disclosure of income tax information

56. Order for disclosure

57. Objection to disclosure of income tax information

58. Evidential value of copies

59. Further disclosure of information and documents held by Government department etc.

60. Disclosure of information and documents held by Government departments.

BAR

Part IV Offences 61. Money laundering

62. Possession of property derived from unlawful activity

63. Organised fraud 64. Rules for establishing mens rea

Part V

Miscellaneous

65. Amendment of Schedule 66. Standard of proof

67. Extemal forfeiture orders and confiscation orders 68. Compensation 69. Regulations follows: 70. Costs 71. Non-liability of Public Trustee 72. Operation of other laws not affected

73. Commencement Act, 1. 199(

SCHEDULE

I assent

D. A. WILLIAMS

Governor-General’s Deputy

16th June, 1990

1990—13

An Act to provide for the forfeiture or

confiscation of the proceeds of certain crimes and for

orders connected or related matters.

(By Proclamation.) Commencement

ENACTED by the Parliament of Barbados as

follows:

Part I

Preliminary

1. This Act may be cited as the Proceeds of Crime Short title Act, 1990.

2. The principal objects of this Act are

(a) to deprive persons of the proceeds of, and the benefits derived from, the commission of scheduled offences;

(b) to provide for the forfeiture of property used in, or in connection with, or for the purpose of facilitating, the commission of scheduled offences;

(c) to provide for the forfeiture of property derived, obtained or realised directly or indirectly from the commission of scheduled offences;

(d) to provide for the making of confiscation orders in respect of property shown to have been derived, obtained or realised by a person directly or indirectly, from the commission of scheduled offences;

(e) to enable law enforcement authorities to trace such proceeds, benefits and property.

3. In this Act

"benefit" falls to be construed in accordance with section 4(1);

"Commissioner" means the Commissioner of Police;

"confiscation order" means an order made by the Court pursuant to section 18(1);

"the Court" means the High Court

"forfeiture order" means an order made by the Court pursuant to section 10(1);

"gift caught by this Act" falls to be construed in accordance with section 4(12), and (14);

"interest" in relation to property, means

(a) a legal or equitable interest in the property; or

(b) a right, power or privilege in connection with the property;

"police officer" means a member of the Police Force;

"proceeds" means any property that is derived, obtained or realised, directly or indirectly, by any person from the commission of a scheduled offence;

"proceeds of crime" means

(a) proceeds of a scheduled offence; or

(b) any property or benefits derived, obtained or realised, directly or indirectly, by any person from any act or omission that, occurred outside Barbados, and would, if it had occurred in Barbados, have constituted a scheduled offence;

"production order" means an order made by the Court pursuant to section 42;

"property" includes money and all other property, real or personal, including things in action and other intangible or incorporeal property;

"Public Trustee" means the Public Trustee appointed in accordance with the Public Trustee Act;

"realisable property" falls to be construed in accordance with section 4(3) and (4);

"relevant application period", in relation to a person’s conviction of a scheduled offence, means the period of 12 months after

(a) where the person is to be taken to have been convicted of the offence by reason of section 4(2)(a), the day on which the person was convicted of the offence;

(b) where the person is to be taken to have been convicted of the offence by reason of section 4(2)(b), the day on which the person was discharged without conviction;

(c) where the person is to be taken to have been convicted of the offence by reason of section 4(2)(c), the day on which the court took the offence into account in passing sentence for the other offence referred to in that paragraph;

"restraining order" means an order made by the Court pursuant to section 32(1);

"scheduled offence" means an offence specified

in the Schedule, and includes Schedule

(a) an offence of conspiring to commit any of those offences;

(b) an offence of aiding, abetting, counselling or procuring, or being in any way knowingly concerned in, the commission of any of those offences;

(d) an offence of inciting another to commit any of those offences;

"tainted property", in relation to a scheduled offence, means

(a) property used in, or in connection with, the commission of the offence; or

(b) property derived, obtained or realised, directly or indirectly, from the commission of the offence;

"unlawful activity" means an act or omission that constitutes an offence against a law in force in Barbados or against a law of any other country.

Definition 4. (1) In this Act of certain

terms etc. (a) "a benefit" includes any property, service or advantage, whether direct or indirect;

(b) "to benefit" has a corresponding meaning;

(c) a reference to a benefit derived or obtained by, or otherwise accruing to, a person ("A") includes a reference to a benefit derived or obtained by, or otherwise accruing to, another person at A’s request or direction.

(2) For the purposes of this Act, a person is to be taken to be convicted of a scheduled offence if

(a) he is convicted, whether summarily or on indictment, of the offence;

(b) he is charged with the offence and is found guilty but is discharged without conviction; or

(c) a court with his consent takes the scheduled offence, of which he has not been found guilty, into account m sentencing him for another offence.

(3) In this Act "realisable property" means, subject to subsection (4)

(a) any property held by a person who has been convicted of, or charged with, a scheduled offence; and

(b) any property held by a person to whom a person so convicted or charged has directly or indirectly made a gift caught by this Act.

(4) Property is not realisable property if

(a) there is in force in respect of that property, a forfeiture order under this Act or under any other enactment;

(b) a forfeiture order is proposed to be made against that property under this Act or any other enactment.

(5) For the purposes of sections 20 and 21 the amount that might be realised at the time a confiscation order is made against a person is the total of the values at that time of all the realisable property held by the person, less the total amounts payable in pursuance of an obligation, where there is an obligation having priority at that time, together with the total of the values at that time of all gifts caught by this Act.

(6) For the purposes of subsection (5), an obligation has priority at any time if it is an obligation of the person to

(a) pay an amount due in respect of a fine, or other order of a court, imposed or made on conviction of an offence where the fine was imposed or the order was made before the confiscation order, or

(b) pay an amount due in respect of any tax, rate, duty, cess or other impost payable under any enactment for the time being in force;

(7) Subject to subsections (8) and (9), for the purposes of this Act, the value of property (other than cash) in relation to a person holding the property

(a) where any other person holds an interest in the property, is

(i) the market value of the first mentioned person’s beneficial

interest in the property; less

(ii) the amount required to discharge any encumbrance on that interest, and

(b) in any other case, its market value.

(8) References in this Act to the value at any time ("the material time") of the transfer of any property are references to

(a) the value of the property to the recipient when he receives it adjusted to take account of subsequent changes in the value of money; or

(b) where subsection (9) applies, the value there mentioned,

(9) Where at the material time the recipient holds

(a) the property which he received (not being cash); or

(b) property which, in whole or in part, directly or indirectly represents in his

hands the property which he received,

the value referred to in subsection (7)(b) is the value to him at the material time of the property mentioned in paragraph (a) of this subsection or, as the case may be, of the property mentioned in paragraph (b) of this subsection, so far as it represents the property which he received.

(10) Subject to subsection (14), a reference to the value at any time ("the material time") of a gift is a reference to

(a) the value of the gift to the recipient when he received it adjusted to take account of subsequent changes in the value of money; or

(b) the value there mentioned, where subsection (11) applies;

whichever is the greater.

(11) Subject to subsection (14), where at the material time a person holds

(a) property which he received, not being cash; or

(b) property which, in whole or in part, directly or indirectly represents in his

hands the property which he received, the value referred to in subsection (10) is the value to him at the material time of the property mentioned in paragraph (a) of this subsection or the value of the property mentioned in paragraph (b) so far as it so represents the property which he received.

(12) A gift, including a gift made before the commencement of this Act, is caught by this Act where

(a) it was made by the person convicted or charged at any time after the commission of the offence or, if more than one, the earliest of the offences to which the proceedings for the time being relate; and the Court considers it appropriate in all the circumstances to take the gift into account;

(b) it was made by the person convicted or charged at any time and was a gift of property

(i) received by the person in connection with the commission of a scheduled offence committed by him or another, or

(ii) which in whole or in part directly or indirectly represented in the person’s hands property received by him in that connection.

(13) The reference in subsection (12) to "an offence to which the proceedings for the time being relate" includes where the proceedings have resulted in the conviction of the person, a reference to any offence which the Court takes into consideration when determining sentence.

(14) For the purposes of this Act

(a) the circumstances in which a person is to be treated as making a gift include those where the person transfers property to another person directly or indirectly for a consideration the value of which is significantly less than the value of the consideration provided by the person; and

(b) in those circumstances, the preceding provisions of this section shall apply as if the person had made a gift of such share in the property as bears to the whole property the same proposition as the difference between the values referred to in paragraph (a) bears to the value of the consideration provided by the person.

Part II

FORFEITURE ORDERS, CONFISCATION

ORDERS AND RELATED MATTERS

General

Appllcation 5. (1) Where a person is convicted of a scheduled for forfei- offence committed after the coming into force of this Act, ture order or confiscation the Director of Public Prosecutions may apply to the Court order on for one or both of the following orders conviction

(a) a forfeiture order against property that is tainted property in respect of the scheduled offence;

(b) a confiscation order against the person in respect of benefits derived by the person from the commission of the scheduled offence.

(2) The Director of Public Prosecutions may not make an application after the end of the relevant application period in relation to the conviction.

(3) An application under this section may be made in respect of one or more than one scheduled offence.

(4) Where an application under this section is finally determined, no further application for a forfeiture order or a confiscation order may be made in respect of the offence for which the person was convicted unless the Court gives leave for the making of a new application on being satisfied

(a) that the property, or benefit to which the new application relates was identified after the previous application was determined; or

(b) that necessary evidence became available after the previous application

was determined; or

6. (1) Where the Director of Public Prosecutions Notice of applies for a forfeiture order against property in respect of application a person’s conviction of a scheduled offence

(a) the Director of Public Prosecutions must give no less than 14 days written notice of the application to the person and to any other person who the Director of Public Prosecutions has reason to believe may have an interest in the property;

(b) the person, and any other person who claims an interest in the property, may appear and adduce evidence at the hearing of the application; and

(c) the Court may, at any time before the final determination of the application, direct the Director of Public Prosecutions

(i) to give notice of the application to any person who, in the opinion of

the Court, appears to have an interest in the property;

(ii) to publish in the Official Gazette and in a newspaper published and circulating in Barbados notice of the application in the manner and containing such particulars and within the time that the Court considers appropriate.

(2) Where the Director of Public Prosecutions applies for a confiscation order against a person

(a) the Director of Public Prosecutions must give the person no less than 14 days written notice of the application; and

(b) the person may appear and adduce evidence at the hearing of the application.

Amendment of 7. (1) The Court hearing an application under application section 5(1) may, before final determination of the

application, and on the application of the Director of Public Prosecutions, amend the application to include any other property or benefit, as the case may be, upon being satisfied that

(a) the property or benefit was not reasonably capable of identification when the application was originally made; or

PROCEEDS OF CRIME ACT, 1990-13

(b) necessary evidence became available only after the application was originally made.

(2) Where the Director of Public Prosecutions applies to amend an application for a forfeiture order and the amendment would have the effect of including additional property in the application for the forfeiture order he must give no less than 14 days written notice of the application to amend to any person who he has reason to believe may have an interest in the property to be included in the application for the forfeiture order.

(3) Any person who claims an interest in the property to be included in the application for the forfeiture order may appear and adduce evidence at the hearing of the application to amend.

(4) Where the Director of Public Prosecutions applies to amend an application for a confiscation order against a person and the effect of the amendment would be to include an additional benefit in the application for the confiscation order he must give the person no less than 14 days written notice of the application to amend.

8. (1) Where an application is made to the Court Procedure on for a forfeiture order or a confiscation order in respect of a application person’s conviction of a scheduled offence whether in the ma court or in the Court, the Court may, in determining the application, have regard to the transcript of any proceedings against the person for the offence.

(2) Where an application is made for a forfeiture order or a confiscation order to the Court before which the person was convicted, and the Court has not, when the application is made, passed sentence on the person for the offence, the Court may, if it is satisfied that it is reasonable to do so in all the circumstances, defer passing sentence until it has determined the application for the order.

Application

9. (1) Where a person absconds in connection with for In rem a scheduled offence committed after the coming into force

forfeiture

order~, of this Act, the Director of Public Prosecutions may apply abscondence to the Court for a forfeiture order under section 17 in respect of any tainted property.

(2) For the purposes of this section, a person shall be deemed to have absconded in connection with a scheduled offence if

(a) an information has been laid alleging the commission of the offence by the person,

(b) a warrant for the arrest of the person has been issued in relation to that information, and

(c) reasonable attempts to arrest the person pursuant to the warrant have been unsuccessful during the period of six months commencing on the day the warrant was issued, and the person shall be deemed to have so absconded on the last day of that period of six months.

(3) Where the Director of Public Prosecutions applies under this section for a forfeiture order against any

(b) that the property was derived, obtained or realised as a result of the commission by the person of the scheduled offence for which the person was convicted, where the evidence establishes that property, and in particular money, was found in the person’s possession or under his control in a building, vehicle, receptacle or place during the course of investigations conducted by the police before or after the arrest and charge of the person for the scheduled offence for which the person was convicted;

(c) that the value of the increase represents property which was derived, obtained or realised by the person directly or indirectly from the commission of the scheduled offence for which the person was convicted, where the evidence establishes that the value, after the commission of the scheduled offence, of all ascertainable property of a person convicted of the scheduled offence exceeds the value of all ascertainable property of that person prior to the commission of that offence, and the Court is satisfied that the income of that person from sources unrelated to criminal activity of that person cannot reasonably account for the increase in value.

(3) Where the Court orders that property, other than money, be forfeited to the Crown, the Court shall

PROCEEDS OF CRIME ACT, 1990-13

specify in the order the amount that it considers to be the value of the property at the time when the order is made.

(4) In considering whether a forfeiture order should be made under subsection (1), the Court shall have regard to

(a) the rights and interests, if any, of third parties in the property;

(b) the gravity of the offence concerned;

the operation of the order, and

(d) the use that is ordinarily made of the property, or the use to which the

property was intended to be put.

(5) Where the Court makes a forfeiture order the Court may give such directions as are necessary or convenient for giving effect to the order.

11. (1) Subject to subsection (2), where the Court Effect of makes a forfeiture order against any property, the property forfeiture vests absolutely in the Crown by virtue of the order.

(2) Where property directed by a forfeiture order to be forfeited is registrable property

(a) the property vests in the Crown in equity but does not vests in the Crown at law until the applicable registration requirements have been complied with

(b) the Crown is entitled to be registered as owner of the property;

(c) the Attorney-General has power on behalf of the Crown to do, or authorised the doing of, anything nccessary or convenient to obtain the registration of the Crown as owner, including the execution of any instrument required to be executed by a person transferring an interest in property of that kind.

(3) Where the Court makes a forfeiture order against property

(a) the property shall not, except with the leave of the Court and in accordance with any directions of the Court be disposed of, or otherwise dealt with, by or on behalf of the Crown, before the relevant appeal date; and

(b) if, after the relevant appeal date, the order has not been discharged, the property may be disposed of and the proceeds applied or otherwise dealt with in accordance with the direction of the Attorney-General.

(4) Without limiting the generality of subsection (3)(b) the directions that may be given pursuant to that subsection include a direction that property is to be disposed of in accordance with the provisions of any enactment specified in the direction.

(5) In this section

registrable property" means property the title to which is passed by registration in accordance with the provisions of the

Land Registration Act; Cap. 229

relevant appeal date" used in relation to a forfeiture order made in consequence of a person’s conviction of a scheduled offence, means

(a) the date on which the period allowed by the rules of court for the lodging of an appeal against a person’s conviction or for the lodging of an appeal against the making of a forfeiture order expires without an appeal having been lodged, whichever is the later; or

(b) where an appeal against a person’s conviction or against the making of a forfeiture order is lodged, the date on which the appeal lapses in accordance with the rules of court or is finally determined, whichever is the later.

12. The Court may Voidable transfers

(a) before making a forfeiture order; and

(b) in the case of property in respect of which a restraining order was made,

where the order was served in accordance with section 33,

set aside any conveyance or transfer of the property that occurred after the seizure of the property or the service of the restraining order, unless the conveyance or transfer was made for valuable consideration to a person acting in good faith and without notice.

Protection 13. (1) Where an application is made for a of third forfeiture order against property, a person who claims an

parties interest in the property may apply to the Court, before the forfeiture order is made, for an order under subsection (2).

(2) If a person applies to the Court for an order under this section in respect of his interest in property and the Court is satisfied on a balance of probabilities

(a) that he was not in any way involved in the commission of the offence; and

(b) where he acquired the interest during or after the commission of the offence,

that he acquired the interest

(i) for sufficient consideration; and

(ii) without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was, at the time he acquired it, property that was tainted property,

the Court shall make an order declaring the nature, extent and value (as at the time the order is made) of his interest.

(3) Subject to subsection (4), where a forfeiture order has already been made directing the forfeiture of property, a person who claims an interest in the property may before the end of the period of 12 months commencing on the day on which the forfeiture order is made, apply under this subsection to the Court for an order under subsection (2).

(4) A person who

(a) had knowledge of the application for the forfeiture order before the order was made; or

(b) appeared at the hearing of that application,

shall not be permitted to make an application under subsection (3), except with the leave of the Court.

(5) A person who makes an application under subsection (1) or (3) must give no less than 14 days written notice of the making of the application to the Director of Public Prosecutions, who shall be a party to any proceedings in the application.

(6) An applicant or the Director of Public Prosecutions may in accordance with the rules of court, appeal to the Court of Appeal from an order made under subsection (2).

(7) The Public Trustee shall, on application made by any person who has obtained an order under subsection (2), and where the period allowed by the rules of court with respect to the making of appeals has expired and any appeal from that order taken under subsection (6) has been determined.

Application 16. (1) Where the Court orders a person to pay an of Proce- amount under section 15 that amount shall be treated as if dure for enforcing it were a fine imposed upon him in respect of a conviction fines of a scheduled offence and the Court shall

(a) notwithstanding anything contained in

Cap. i section 22 of the Interpretation Act, impose, in default of the payment of that amount, a term of imprisonment

(i) of 18 months, where the amount does not exceed $10,000;

(ii) of 2 years, where the amount exceeds $10,000 but does not

exceed $20,000;

(iii) of 3 years, where the amount

exceeds $20,000 but does not

exceed $50,000;

(iv) of 5 years, where the amount

exceeds $50,000 but does not

exceed $100,000;

(v) of 7 years, where the amount exceeds $100,000 but does not

exceed $200,000;

(vi) of 10 years, where the amount

exceeds $200,000 but does not

exceed $1,000,000;

(vii) of 15 years, where the amount

exceeds $1,000,000;

(b) direct that the term of imprisonment imposed pursuant to paragraph (a), in the case of conviction for an offence against the Drug Abuse (Prevention and Control) Act, be served consecutively to any other form of imprisonment imposed on the person, or that the person is then serving;

the remission of sentences of prisoners serving a term of imprisonment shall not apply in relation to a term of imprisonment imposed on a person pursuant to paragraph (a) in the case of a conviction for an ofence against the Drug Abuse (Prevention and Control) Act.

17. (1) Subject to section 9(3), where an application Forfeiture is made to the Court under section 9(1) for a forfeiture order on

abscondence

order against any tainted property in consequence of a person’s abscondence in connection with a scheduled offence and the Court is satisfied that

(a) any property is tainted property in respect of the offence;

(b) proceedings in respect of a scheduled offence committed in relation to that

property were commenced; and

(c) the accused charged with the offence referred to in paragraph (b) has absconded the Court may order that the property or such of the property as is specified by the Court in the order be forfeited to the Crown.

(2) The provisions of sections 10(2), (3), (4) and (5), 11, 12 and 13 shall apply with such modifications as are necessary to give effect to this section.

Confiscation Orders

Confisca- 18. (1) Subject to this section, where the Director of tion order Public Prosecutions applies to the Court for a confiscation On conviction order against a person in respect of that person’s conviction of a scheduled offence the Court shall, if it is satisfied that

the person has benefited from that offence order him to pay to the Crown an amount equal to the value of his benefits from the offence or such lesser amount as the Court certifies in accordance with section 21 to be the amount that might be realised at the time the confiscation order is made.

(2) The Court shall assess the value of the benefits derived by a person from the commission of an offence in accordance with sections 19 to 22

(3) The Court shall not make a confiscation order under this section

(a) until the period allowed by the rules of court for the lodging of an appeal against conviction has expired without such an appeal having been lodged; or

(b) where an appeal against convictions has been lodged, until the appeal lapses in accordance with the rules of court or is finally determined, whichever is the later date.

PROCEEDS OF CRIME ACT, 1990-13

19. (1) Where a person obtains property as the Rules for result of, or in connection with the commission of, a determining scheduled offence, his benefit is the value of the property benefit and so obtained.

Assessing value

(2) Where a person derives an advantage as a result of or, in connection with the commission of a scheduled offence, his advantage shall be deemed to be a sum of money equal to the value of the advantage so derived.

(3) The Court, in determining whether a person has benefited from the commission of a scheduled offence or from that offence taken together with other scheduled offences and, if he has, in assessing the value of the benefit, shall unless the contrary is proved, deem

(a) all property appearing to the Court to be held by the person on the day on which the application is made; and

(b) all property appearing to the Court to be held by the person at any time

(i) within the period between the day the scheduled offence, or the earliest offence, was committed and the day on which the application is made; or

(ii) within the period of 6 years immediately before the day on which the application is made; whichever is longer to be property that came into the possession or under the control of the person by reason of the commission of that scheduled offence or those scheduled offences for which the person was convicted;

(c) any expenditure by the person since the, beginning of that period to be I expenditure met out of payments received by him as a result of, or in connection with, the commission of thai scheduled offence or those scheduled offences; and

(d) any property received or deemed to have been received by the person at any time as a result of, or in connection with, the commission by him of that scheduled offence, or those scheduled offences as property received by him free of any interests therein.

(4) Where a confiscation order has previously been made against a person, in assessing the value of any benefit derived by him from the commission of the scheduled offence, the Court shall leave out of account any of his benefits that are shown to the Court to have been taken into account in determining the amount to be recovered under that order.

(5) If evidence is given at the hearing of the application that the value of the person’s property at any time after the commission of the scheduled offence exceeded the value of the person’s property before the commission of the offence, then the Court shall, subject to subsection (6), treat the value of the benefits as being not less than the amount of the excess.

(6) If, after evidence of the kind referred to in subsection (5) is given, the person satisfies the Court that the whole or part of the excess was due to causes unrelated to the commission of the scheduled offence, subsection (5) does not apply to the excess or, as the case may be, that part.

20. (1) Where Statements

(a) a person has been convicted of a

scheduled offence and the Director of from corn-Public Prosecutions tenders to the mission of Court a statement as to any matters scheduled relevant offences

(i) to determining whether the person has benefited from the offence or from any other scheduled offence of which he is convicted in the same proceedings or which is taken into account in determining his sentence, or

(ii) to an assessment of the value of the person’s benefit from the offence or any other scheduled offence of which he is so convicted in the same proceedings or which is so taken into account, and

(b) the person accepts to any extent an allegation in the statement,

the Court may, for the purposes of so determining or making that assessment, treat his acceptance as conclusive of the matters to which it relates.

(2) Where

(a) a statement is tendered under subsection (1) (a), and

(b) the Court is satisfied that a copy of that statement has been served on the person, the Court may require the person to indicate to what extent he accepts each allegation in the statement and, so far as he does not accept any such allegation, to indicate any matters he proposes to rely on.

(3) Where the person fails in any respect to comply with a requirement under subsection (2), he may be treated for the purposes of this section as having accepted every allegation in the statement, other than

(a) an allegation in respect of which he has complied with the requirement; and

(b) an allegation that he has benefited from the scheduled offence or that any property or advantage was obtained by him as a result of, or in connection with the commission of the offence.

(4) Where

(a) the person tenders to the Court a statement as to any matters relevant to determining the amount that might be realised at the time the confiscation order is made; and

(b) the Director of Public Prosecutions accepts to any extent any allegation in the statement, the Court may, for the purposes of that determination, treat the acceptance of the Director of Public Prosecutions as conclusive of the matters to which it relates.

(5) An allegation may be accepted or a matter indicated for the purposes of this section either —

(a) orally before the Court; or

(b) in writing in accordance with rules of court.

(6) An acceptance by a person under this section that he received any benefits from the commission of a scheduled offence is admissible in any proceedings for any offence.

21. (1) Subject to subsection (2), the amount to be Amount to recovered in the person’s case under a confiscation order be recovshall be the amount which the Court assesses to be the ered under confiscavalue of the person’s benefit from the scheduled offence or tion order if more than one, all the offences in respect of which the order may be made.

(2) Where the Court is satisfied as to any matter relevant for determining the amount which might be realised at the time the confiscation order is made (whether by an acceptance under section 20 or otherwise) the Court may issue a certificate giving the Court’s opinion as to the matters concerned, and shall do so if satisfied that the amount that might be realised at the time the confiscation order is made is less than the amount that the Court assesses to be the value of the person’s benefit from the offence, or if more than one, all the offences in respect of which the confiscation order may be made.

22. (1) Where Variation of confisca

(a) the Court makes a confiscation order tion orders against a person in relation to a scheduled offence;

(b) in calculating the amount of the confiscation order, the Court took into account a forfeiture of the property or a proposed forfeiture of the property or a proposed forfeiture order in respect of property; and

(c) an appeal against the forfeiture or forfeiture order is allowed or the proceedings for the proposed forfeiture order terminate without the proposed forfeiture order being made

the Director of Public Prosecutions may apply to the Court for a variation of the confiscation order to increase the amount of the order by the value of the property not so forfeited and the Court may, if it considers it appropriate to do so, vary the order accordingly.

(2) Where

(a) the Court makes a confiscation order against a person in relation to a scheduled offence;

(b) in calculating the amount of the confiscation order, the Court took into account, in accordance with section 4(5) and (6) an amount of tax paid by the person; and

the Director of Public Prosecutions may apply to the Court for a variation of the confiscation order to increase the order by the amount repaid or refunded and the Court may, if it considers it appropriate to do so, vary the order accordingly.

23. (1) In assessing the value of benefits derived by a person from the commission of a scheduled offence, the Court may treat as property of the person any property that, in the opinion of the Court, is subject to the effective control of the person whether or not he has

(c) an appeal against the forfeiture or forfeiture order is allowed or the proceedings for the proposed forfeiture order terminate without the proposed forfeiture order being made

(2) Where

(a) the Court makes a confiscation order against a person in relation to a scheduled offence;

(b) in calculating the amount of the confiscation order, the Court took into account, in accordance with section 4(5) and (6) an amount of tax paid by the person; and

Court may 23. (1) In assessing the value of benefits derived by lift corpo- a person from the commission of a scheduled offence, the rate veil Court may treat as property of the person any property that, in the opinion of the Court, is subject to the effective control of the person whether or not he has

(a) any legal or equitable interest in the property; or

(b) any right, power or privilege in connection with the property.

(2) Without prejudice to the generality of subsection (1) the Court may have regard to

(a) shareholdings in, debentures over or directorships in any company that has an interest, whether direct or indirect, in the property, and for this purpose the Court may order the investigation and inspection of the books of a named company;

(b) any trust that has any relationship to the property;

(c) any relationship whatsoever between persons having an interest in the property or in companies of the kind referred to in paragraph (a) or trust of the kind referred to in paragraph (b), and any other persons.

(3) Where the Court, for the purposes of making a confiscation order against a person, treats particular property as the person’s property pursuant to subsection (1), the Court may, on application by the Director of Public Prosecutions, make an order declaring that the property is available to satisfy the order.

(4) Where the Court declares that property is available to satisfy a confiscation order

(a) the order may be enforced against the property as if the property were property of the person against whom the orderis made; and

(b) a restraining order may be made in respect of the property as if the property were property of the person against whom the order is made.

(5) Where the Director of Public Prosecutions makes an application for an order under subsection (3) that property is available to satisfy a confiscation order against a person

(a) the Director of Public Prosecutions shall give written notice of the application to the person and to any person who the Director of Public Prosecutions has reason to believe may have an interest on the property; and

(b) the person and any person who claims an interest in the property may appear and adduce evidence at the hearing.

Enforce- 24. Where the Court orders a person to pay an ment of amount under a confiscation order the provisions of section confisca- 16 shall apply with such modifications as the Court may tion orders determine for the purpose of empowering the Court to

impose a term of imprisonment on a person in default of compliance by him of a confiscation order.

PROCEEDS OF CRIME ACT, 1990-13 37

Part m

PROVISIONS FOR FACILITATING POLICE

INVESTIGATIONS AND PRESERVING

PROPERTY LIABLE TO FORFEITURE

AND CONFISCATION ORDERS

Powers of Search and Seizure

25. (1) Where a police officer has reasonable Warrant to grounds for suspecting that there is, or there may be within search land etc. for the next following 72 hours, tainted property upon any land or upon or in any premises the police officer may lay property before a magistrate an information on oath setting out those grounds and apply for the issue of a warrant to search the land or premises for tainted property.

(2) Where an application is made under subsection (I) for a search warrant, the magistrate may, subject to section 26, issue a warrant authorising a police officer (whether named in the warrant or not) with such assistance and by such force as is necessary and reasonable

(a) to enter upon the land or upon or into the premises;

(b) to search the land or premises for tainted property; and

(c) to seize property found in the course of the search that the police officer believes on reasonable grounds, to be tainted property.

26. A magistrate shall not issue a warrant under Restrictions

section 25 unless on issue of search warrants warrants

(a) the informant or some other person has given to the magistrate, either on oath or by affidavit, any further information that the magistrate may require concerning the grounds on which the issue of the warrant is sought;

(b) the magistrate is satisfied that there are reasonable grounds for issuing the warrant.

Matters to 27. A warrant issued under section 25 shall be included include in search warrant

(a) a statement of the purpose for which the warrant is issued, and a reference to the nature of the scheduled offence;

(b) a description of the kind of property to be seized;

(d) a statement as to whether entry is authorised to be made at any time of the day or night, or during specified hours of the day or night.

Police may 28. Where in the course of a search under a seize other warrant issued pursuant to section 25 for tainted property tainted in relation to a scheduled offence, a police officer finds

(a) property that he believes, on reasonable grounds, to be

(i) tainted property in relation to the offence, although not of a kind specified in the warrant, or

(ii) tainted property in relation to another scheduled offence, or

(b) anything that he believes, on reasonable grounds will afford evidence as to the commission of a criminal offence, and the police officer believes, on reasonable grounds that it is necessary to seize that property or thing in order to prevent its concealment, loss or destruction or its use in committing, continuing or repeating the offence or any other offence, the warrant shall be deemed to authorise the police officer to seize that property or thing.

29. (1) A police officer who executes a warrant Record of issued under this Part shall property seized

(a) detain the property seized, taking reasonable care to ensure that the property is preserved so that it may be dealt with in accordance with the law;

(b) as soon as practicable after the execution of the warrant, but within a period of 48 hours thereafter, prepare a written report, identifying the property seized and the location where the property is being detained and forward a copy of the report to the clerk of the court in the magisterial district where the property is being detained.

(2) A magistrate shall, on application, provide a copy of the report

(a) to the person from whom the property was seized; and

(b) to any other person who appears to the magistrate to have an interest in the property.

(3) A request under subsection (2) by a other than the person from whom the property was shall be in writing and supported by affidavit sworn to the person making the request.

Return of 30. (1) Where property has been seized property section 28, otherwise than because it may afford seized of the commission of a scheduled offence, any person who

claims an interest in the property may apply to the Co for an order that the property be returned to him.

(2) Where a person makes an application under subsection (1) and the Court is satisfied that

(a) the person is entitled to possession the property;

(b) the property is not tainted property relation to the scheduled offence; and

(c) the person in respect of conviction, charging or proposed charging the seizure of the property was made has no interest in property, I the Court shall order the Commissioner to return the property to the person, and the Commissioner shall arrange for the property to be returned.

(3) Where

(a) at the time when the property was seized, an information had not been laid

in respect of a scheduled offence,

(b) property has been seized under section 28, otherwise than because it may afford evidence as to the commission of an offence,

(c) at the end of the period of 48 hours after the time when the property was seized, an information has not been laid in respect of a scheduled offence,

the Commissioner shall, subject to subsections (5) and (6), arrange for the property to be returned to the person from whose possession it was seized as soon as practicable after the end of that period.

(4) Where

(a) property has been seized under section

28, otherwise than because it may

afford evidence as to the commission of a scheduled offence,

(b) either of the following conditions is satisfied, that is to say,

(i) before the property was seized, a person had been convicted of a scheduled offence or an information had been laid in respect of a scheduled offence, or

(ii) before the property was seized, an information had not been laid in respect of a scheduled offence, but an information was laid in respect of a scheduled offence within 48 hours after the time when the property was seized, and

the Commissioner shall, subject to subsections (5) and (6), arrange for the property to be returned to the person from whose possession it was seized as soon as practicable after the end of that period.

(5) Where

(a) property has been seized under section

28, otherwise than because it may

afford evidence as to the commission of a scheduled offence,

(b) but for this subsection, the Commissioner would be required to arrange for the property to be returned to a person as soon as practicable after the end of a particular period, and

(d) arrange for the property to be given to the Public Trustee in accordance with the restraining order, if the restraining order directs the Public Trustee to take custody and control of the property;

(e) arrange for the property to be kept until it is dealt with in accordance with any other provision of this Act, if the Court that made the restraining order has made an order under subsection (6) in relation to the property.

(6) Where

(a) property has been seized under section 28, otherwise than because it may afford evidence as to the commission of a scheduled offence,

(b) a restraining order is made in relation to the property, and

of the Commissioner, the Commissioner may apply to the Court that made the restraining order for an order that he retain possession of the property, and the Court may, if satisfied that there are reasonable grounds for believing that the property may afford evidence as to the commission of a scheduled offence or any other offence, make an order that the Commissioner retain the property for so long as the property is so required as evidence as to the commission of that offence.

(7) Where the Commissioner applies to the Court for an order under subsection (6), a witness shall not be required to answer any question or to produce any document if the Court is satisfied that the answering of the question or the production of the document may prejudice the investigation of, or the prosecution of a person for, an offence.

(8) Where

(a) property has been seized under section 28, otherwise than because it may afford evidence as to the commission of a scheduled offence,

(b) an application is made for a restraining order or a forfeiture order in respect of the property,

(d) at the time when the application is refused, the property is in the possession of the Commissioner, the Commissioner shall arrange for the property to be returned to the person from whose possession it was seized as soon as practicable after the refusal.

(9) Where

(a) property has been seized under section 28, and

(b) while the property is in the possession of the Commissioner a forfeiture order is made in respect of the property, the Commissioner shall deal with the property as directed by the order.

Restraining Orders

31. (1) Where a person, (in this section and section Applica

32 called "the defendant") tion for restraining

(a) has been convicted of a scheduled offence, or

(b) has been charged with a scheduled offence

the Director of Public Prosecutions may apply to the Court for a restraining order against any realisable property held by the defendant or specified realisable property held by a person other than the defendant.

(2) An application for a restraining order may be made ex parte and shall be in writing and be accompanied by an affidavit stating

(a) where the defendant has been convicted of a scheduled offence, the scheduled offence for which the defendant was convicted, the date of the conviction, the Court before which the conviction was obtained and whether an appeal has been lodged against the conviction;

(b) where the defendant has not been convicted of a scheduled offence, the scheduled offence for which he is charged and the grounds for believing that the defendant committed the offence;

(d) the name and address of the person who is believed to be in possession of the property;

(e) the grounds for the belief that the property is tainted property in relation to the offence;

(f) the grounds for the belief that the defendant derived a benefit directly or indirectly from the commission of the offence;

(g) where the application seeks a restraining order against property of a person, other than the defendant, the grounds for the belief that the property is tainted property in relation to the offence and is subject to the effective control of the defendant;

(ii) the grounds for the belief that a forfeiture order or a confiscation order may be or is likely to be made under this Act in respect of the property.

32. (1) Subject to this section, where the Director Of Public Prosecutions applies to the Court for a restraining order aqainst property and the Court is satisfied that

order against property and the Court is satisfied that

(a) the defendant has been convicted of a scheduled offence, or has been charged with a scheduled offence;

(b) there are reasonable grounds for believing that the defendant committed the offence, where the defendant has not been convicted of a scheduled offence;

(c) there is reasonable cause to believe that the property is tainted property in relation to an offence or that the defendant derived a benefit directly or indirectly from the commission of the offence;

(d) there are reasonable grounds for believing that the property is tainted property in relation to an offence and that the property is subject to the effective control of the defendant, where the application seeks a restraining order against property of a person other than the defendant; and

(e) there are reasonable grounds for believing that a forfeiture order or a confiscation order is likely to be made under this Act in respect of the property, the Court may make an order

(f) prohibiting the defendant or any person from disposing of, or otherwise dealing with, the property or such part thereof or interest therein as is specified in the order, except in such manner as may be specified in the order, and

(g) at the request of the Director of Public Prosecutions, where the Court is satisfied that the circumstances so require

(i) directing the Public Trustee or such other person as the Court may appoint to take custody of the property or such part thereof as is specified in the order and to manage or otherwise deal with all or any part of the property in accordance with the directions of the Court; and

(ii) requiring any person having possession of the property to give possession thereof to the Public Trustee or to the person appointed under sub-paragraph (i) to take custody and control of the property.

(2) An order under subsection (1) may be made subject to such conditions as the Court thinks fit and, without limiting the generality of this, may make provision for meeting, out of the property or a specified part of the property, all or any of the following

(a) the person’s reasonable living expenses (including the reasonable living expenses of the person’s dependants (if any) and reasonable business expenses;

PROCEEDS OF CRIME ACT, 1990-13 49

tic (b) the person’s reasonable expenses in

defending the criminal charge and any 50 proceedings under this Act.

(3) In determining whether there are reasonable

or grounds for believing that property is subject to the urt effective control of the defendant the Court may have the i~gard to the matters referred to in section 23(2). S 15 tO (4) Where the Public Trustee or other person appointed under subsection (l)(g)(i) is given a direction in in relation to any property, the Public Trustee or that other s of person may apply by summons to the Court for directions on any question respecting the management or preservation of the property under this control.

give (5) An application under subsection (4) shall be ~blic served upon all persons interested in the application or intend such of them as the Court thinks expedient and all such take persons shall be at liberty to appear at the hearing and be the heard.

(6) The Public Trustee or other person appointed under subsection (1)(g)(i) in acting on directions

made given by the Court shall be deemed to have discharged his and, duty in the subject matter of the application.

(I)f the -33. (1) Before making an order under section 32, Undcrtak the Court may require the Crown to give such undertakings ~ by as the Court considers appropriate with respect to the Crown payment of damages or costs, or both, in relation to the enses making and execution of the order.

[wing (2) For the purposes of this section, the Director

its (if of Public Prosecutions may, after consultation with the nses;

Attorney-General, on behalf of the Crown, give to the Court such undertakings with respect to the payment of damages or costs, or both, as are required by the Court.

Notice of 34. Before making a restraining order, the Court

application may require notice to be given to, and may hear, any for restraining order person who, in the opinion of the Court, appears to have an

interest in the property, unless the Court is of the opinion that giving such notice before making the order would result in the disappearance, dissipation or reduction in value of the property.

Service of 35. A copy of a restraining order shall be served

restraining on a person affected by the order in such manner as the order Court directs or as may be prescribed by rules of court.

Registra- 36. (1) A copy of a restraining order which affects tion of restrain- lands, tenements or hereditaments in Barbados shall be ing order registered with the Registrar of the Supreme Court in Cap. 210 accordance with the Registration of Judgments Act, and

with the Registrar of Titles.

(2) A restraining order is of no effect with respect to registered land unless it is registered as a charge

Cap. 229 under the Land Registration Act.

(3) Where particulars of a restraining order are

recorded or registered, as the case may be, in accordance Cap. 210 with the Registration of Judgments Act or the Land

Cap. 229 Registration Act, a person who subsequently deals with the property shall, for the purposes of section 37, be deemed to have notice of the order at the time of the dealing.

Contra- 37. (1) A person who knowingly contravenes a

vention of restrain- restraining order by disposing of, or otherwise dealing order

Duration of 38. A restraining order remains in force until restraining order

(a) it is revoked or varied under section 39;

(b) it ceases to be in force under section 40; or

(c) a forfeiture order or a confiscation order, as the case may be, is made in respect of property which is the subject of the order, or

(d) the property which is the subject of the order becomes forfeited to the Crown

under any other enactment.

Review of Search Warrants and

Restraining Orders

Review of 39. (1) A person who has an interest in property that

search was seized under a warrant issued pursuant to section 25 or Wayants. in respect of which a restraining order was made may, at

ing orders any time, apply to the Court

(a) for an order under subsection (4); or

(b) for permission to examine the property.

(2) An application under subsection (1) shall not be heard by the Court unless the applicant has given to the Director of Public Prosecutions at least three days clear notice in writing of the application.

Duration of 38. A restraining order remains in force until restraining order

(a) it is revoked or varied under section 39;

(b) it ceases to be in force under section 40; or

(c) a forfeiture order or a confiscation order, as the case may be, is made in respect of property which is the subject of the order, or

(d) the property which is the subject of the order becomes forfeited to the Crown under any other enactment.

Review of Search Warrants and Restraining Orders

Review of 39. (1) A person who has an interest in property that search was seized under a warrant issued pursuant to section 25 or

in respect of which a restraining order was made may, at ing orders any time, apply to the Court

(a) for an order under subsection (4); or

(b) for permission to examine the property.

(3) The Court may requi