Migrant Smuggling (Prevention) Act, 2010

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ANTIGUA AND BARBUDA

THE MIGRANT SMUGGLING (PREVENTION) ACT, 2010

No. 11 of 2010

[ Published in the Official Gazette Vol. XXX No. 63
dated 11th November, 2010. ]

________
Printed at the Government Printing Office, Antigua and Barbuda,

by Paget Terry Acting, Government Printer
— By Authority, 2010.

800—11.10 [ Price $8.20 ]

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THE MIGRANT SMUGGLING (PREVENTION) ACT, 2010

ARRANGEMENT

Section

PART I

PRELIMINARY

1. Short title and commencement
2. Interpretation
3. Objects of Act
4. Scope of application
5. Extension of Act to extra territorial offences
6. Prevailing law

PART II

MIGRANT SMUGGLING OFFENCES, IMMUNITY, ETC.

7. Offence of migrant smuggling
8. Attempting, directing, conspiring, inciting etc., the commission of migrant smuggling
9. Aggravating circumstances
10. Fraudulent travel or identity documents
11. Offence to facilitate stay of a smuggled person
12. Providing facilities in support of migrant smuggling
13. Providing financial services for purposes of migrant smuggling
14. Harbouring persons
15. Using services of a smuggled person
16. Immunity from criminal prosecution
17. Obligation on commercial carriers

PART III

ENFORCEMENT

18. Enforcement officers
19. Powers of investigation
20. Power of arrest
21. Search and seizure with warrant
22. Search and seizure without warrant
23. Access to computerized data

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24. List of things seized
25. Power to examine persons
26. Forfeiture of property on conviction
27. Application for forfeiture order
28. Disposal of forfeited property
29. Cost of holding thing seized
30. No costs or damages arising from entry, search or seizure to be recoverable
31. Obstruction of enforcement officer
32. Tipping-off

PART IV

MISCELLANEOUS

33. Institution of proceedings
34. Compensation to State
35. Admissibility of documentary evidence
36. Admissibility of translation of documents
37. Offence by body corporate
38. Offence by employee or agent
39. Regulations

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[ L.S.]

I Assent,

Louise Lake-Tack,
Governor-General.

25th October, 2010.

ANTIGUA AND BARBUDA

THE MIGRANT SMUGGLING (PREVENTION) ACT, 2010

No. 11 of 2010

AN ACT to combat migrant smuggling; to provide for migrant smuggling and other offences associated
with migrant smuggling and for incidental and connected purposes.

ENACTED by the Parliament of Antigua and Barbuda as follows:

PART I

PRELIMINARY

1. Short title and commencement

(1) This Act may be cited as the Migrant Smuggling (Prevention) Act, 2010.

(2) This Act comes into operation on a date to be appointed by the Minister by notification in the
Gazette, and the Minister may appoint different dates for the coming into operation of different
provisions of this Act.

2. Interpretation

In this Act—

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“commercial carrier” includes a company, or the owner, operator or master of a conveyance, that
engages in the transportation of goods or people for commercial gain;

“conveyance” means a vehicle, vessel, ship, aircraft, or any other mode of transport whether by
air, sea or land;

“customs officer” has the same meaning assigned to it by the Customs (Control and Management)
Act, 1993, No. 7 of 1993;

“enforcement officer” means an officer specified in section 18;

“financial or other material benefit” includes any type of financial or non-financial inducement,
payment, bribe, reward, advantage or service;

“fraudulent travel or identity document” means a travel or identity document that—

(a) has been made, or altered in a material way, by a person other than a person or agency
lawfully authorised to make or issue the travel or identity document on behalf of a country;

(b) has been issued or obtained through misrepresentation, corruption or duress or in any
other unlawful manner; or

(c) is being improperly used by a person other than the rightful holder;

“illegal entry” means crossing the border of Antigua and Barbuda, or any other country, without
complying with the requirements for lawful entry into Antigua and Barbuda or that country, as
the case may be;

“immigration officer” has the same meaning assigned to it by the Immigration and Passports
Act, Cap. 208;

“migrant smuggling” means arranging or assisting a person’s illegal entry into any country,
including Antigua and Barbuda, of which the person is not a citizen or permanent resident or is
otherwise not entitled to reside, knowing or being reckless as to the fact that the person’s entry
is illegal, in order to obtain a financial or other material benefit;

“Minister” means the Minister with the responsibility for immigration;

“receiving country” means the country into which the smuggled person’s entry is arranged;

“smuggled person” means a person who is a victim or the object of an act of migrant smuggling,
regardless of whether that person participated in the migrant smuggling; and

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“travel document” means any document, such as a passport, a visa, a tourist card, an airline
ticket or a birth certificate or certificate of citizenship, that can be used for travel between
countries and includes a document under the laws of a country to establish identity in that
country.

3. Objects of Act

The objects of this Act are—

(a) to provide for the prosecution of persons involved in migrant smuggling and related
offences and for appropriate penalties;

(b) to provide for the prevention of migrant smuggling;

(c) to provide for effective enforcement measures; and

(d) generally to combat migrant smuggling.

4. Scope of application

The ofences under this Act apply whether or not the conduct constituting the off nce took place
inside or outside Antigua and Barbuda, if—

(a) Antigua and Barbuda is the receiving country; or

(b) the receiving country is not Antigua and Barbuda but the migrant smuggling starts in or
transits, Antigua and Barbuda.

5. Extension of Act to extra territorial offences

(1) An offence under this Act extends to and may be dealt with as if it had been committed within
Antigua and Barbuda if it is committed by a citizen or a permanent resident of Antigua and Barbuda in
any place outside and beyond the limits of Antigua and Barbuda.

(2) For the purposes of this Act, a court in Antigua and Barbuda has jurisdiction whether or not the
act constituting an offence under this Act, constitutes an offence at the place of its commission.

6. Prevailing law

(1) The provisions of this Act are in addition to, and not in derogation of, the provisions of any
other written law relating to migrant smuggling.

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(2) In the event of any conflict or inconsistency between the provisions of this Act and those of
any other written law, the provisions of this Act shall prevail and the conflicting or inconsistent
provisions of such other written law shall, to the extent of the conflict or inconsistency, b deemed to
be superseded.

PART II

MIGRANT SMUGGLING OFFENCES, IMMUNITY, ETC.

7. Offence of migrant smuggling

A person who engages in migrant smuggling commits an offence and, subject to section 9, is liable on
summary conviction to a fine not exceeding four hundred thousand dollars or to imprisonment for a
term not exceeding twenty years or to both.

8. Attempting, directing, conspiring, inciting etc., the commission of migrant smuggling

A person who—

(a) performs an act which is aimed at committing the offence of migrant smuggling or attempts
to commit the offence of migrant smuggling;

(b) incites, instigates, commands, directs, aids, advises, recruits, encourages or procures
another person to commit the offence of migrant smuggling; or

(c) conspires with another person to commit the offence of migrant smuggling or to aid in the
commission thereof;

commits an offence and, subject to section 9, is liable on summary conviction to a fine not exceeding
four hundred thousand dollars or to imprisonment for a term not exceeding twenty years or to both.

9. Aggravating circumstances

(1) A person convicted of an offence under section 7 or 8 is liable on summary conviction to a fine
not exceeding one million dollars or to imprisonment for twenty-five years or to both if any of the
following circumstances is present—

(a) the smuggled person is or is intended to be subjected to exploitation;

(b) the smuggled person is subjected to torture or to any other cruel, inhuman or degrading
treatment;

(c) the life of the smuggled person is or is likely to be endangered;

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(d) the offence was committed as part of the activity of an organised criminal group;

(e) the offender has been previously convicted for the same or similar offences; or

(f) the convicted person is a public officer and the offence was committed when the officer
was purporting to act officially.

(2) In subsection (1)—

(a) “exploitation” means all forms of sexual exploitation, forced labour, slavery or practices
similar to slavery, servitude, any illegal activity or the removal of body parts; and

(b) “organised criminal group” means a structured group of three or more persons, existing
for a period of time and acting in concert with the aim of committing one or more of the
offences established under this Part, in order to obtain, directly or indirectly, a financial or
other material benefit.

(3) In subsection (2)—

(a) “forced labour” means labour or services obtained or maintained through threats, the use
of force, intimidation or other forms of coercion, or physical restraint;

(b) “removal of body parts” means the removal or trade in any organ or other body part from
a living person or the body of a person who has been killed for the sole purpose of
removing the organ;

(c) “servitude” means a condition in which the labour or service of a person is provided or
obtained through threats of harm to that person or another person, or through any
scheme, plan or pattern intended to cause the person to believe that, if he does not
perform the labour or provide the service in question, he or another person would suffer
harm;

(d) “sexual exploitation” means compelling the participation of a person in—

(i) prostitution;

(ii) the production of child pornography or other pornographic material;

(iii) any other sexual activity,

as a result of being subjected to threat, coercion, abduction, the effect of drugs, force, abuse of
authority or fraud; and

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(e) “slavery” means reducing a person by any means to a state of submitting to the control
of another person as if that other person were the owner of the first-mentioned person.

10. Fraudulent travel or identity documents

A person who makes, obtains, gives, sells or possesses a fraudulent travel or identity document for
the purpose of facilitating migrant smuggling commits an offence and is liable on summary conviction
to a fine not exceeding four hundred thousand dollars or to imprisonment for a term not exceeding
twenty years or to both.

11. Offence to facilitate stay of a smuggled person

(1) A person who intentionally facilitates, by any unlawful means, the continued presence of a
smuggled person i a receiving country in order to obtain a financial or other material benefit commits
an offence and is liable on summary conviction to a fine not exceeding four hundred thousand dollars
or to imprisonment for a term not exceeding twenty years or to both.

(2) For the purposes of subsection (1), “unlawful means” includes producing, providing or
procuring false travel or identity documents in respect of the smuggled person.

12. Providing facilities in support of migrant smuggling

(1) A person who—

(a) intentionally leases or subleases or allows to be used any room, house, building,
establishment or conveyance he knows or ought reasonably to have known will be used
for facilitating or promoting migrant smuggling; or

(b) advertises, publishes, prints, broadcasts, distributes or causes the advertisement,
publication, printing, broadcast or distribution of information that facilitates or promotes
migrant smuggling by any means, including the use of the Internet or other information
technology;

commits an offence and is liable on summary conviction to a fine not exceeding four hundred thousand
dollars or to imprisonment for a term not exceeding twenty years.

(2) An Internet service provider operating in A tigua and Barbuda—

(a) shall take all reasonable steps to prevent the use of its service for the hosting of information
referred to in subsection (1)b ;

(b) that has knowledge that an Internet address on its server contains information referred to
in subsection (1)(b) shall—

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(i) without delay report that Internet address, as well as the particulars of the person
maintaining or in any manner contributing to that Internet address, to the
Commissioner of Police;

(ii) take all reasonable steps to preserve any evidence for purposes of investigation
and prosecution by the relevant authorities; and

(iii) without delay take all reasonable steps to prevent access to that Internet address
by any person.

(3) An Internet service provider who fails to comply with the provisions of subsection (2) commits
an offence and is liable on summary conviction to a fine not exceeding fifty thousand dollars or to
imprisonment for a term not exceeding two years.

13. Providing financial services for purposes of migrant smuggling

A person who, directly or indirectly, provides or makes available financial services or facilities—

(a) intending that the services or facilities will be used, or knowing or having reasonable
grounds to believe that the services or facilities will be used, in whole or in part, for the
purpose of committing or facilitating the commission of migrant smuggling, or for the
purpose of benefiting a person who is committing or facilitating the commission of migrant
smuggling; or

(b) knowing or having reasonable grounds to believe that, in whole or in any part, the
services or facilities will be used by or will benefit a person involved in migrant smuggling;

commits an offence and is liable on summary conviction to a fine not exceeding four hundred thousand
dollars or to imprisonment for a term not exceeding twenty years.

14. Harbouring persons

(1) A person who—

(a) harbours another person; or

(b) prevents, hinders or interferes with the arrest of another person;

knowing or having reason to believe that such person has committed or is planning or is likely to
commit the offence of migrant smuggling or any other offence under this Part, commits an offence and
is liable on summary conviction to a fine not exceeding four hundred thousand dollars or to
imprisonment for a term not exceeding twenty years.

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(2) In this section, “harbour” means supplying a person with shelter, food, drink, money or clothes,
arms, ammunition or means of conveyance, or assisting a person in any way to evade apprehension.

15. Using services of a smuggled person

A person who intentionally—

(a) benefits, financially or otherwise, from the services of a smuggled person or of a person
he knows or ought reasonably to have known is a smuggled person; or

(b) uses or enables another person to use the services of a smuggled person or of a person
he knows or ought reasonably to have known to be a smuggled person;

commits an offence under subsection (1) is liable on summary conviction to a fine not exceeding four
hundred thousand dollars or to imprisonment for a term not exceeding twenty years or to both.

16. Immunity from criminal prosecution

(1) A smuggled person shall not be liable under this Act to criminal prosecution in respect of—

(a) his illegal entry into Antigua and Barbuda; or

(b) his period of unlawful residence in Antigua and Barbuda.

(2) Nothing in subsection (1) limits the application of the provisions of the Immigration and Passports
Act, Cap. 208, or any other law to a smuggled person.

17. Obligation on commercial carriers

(1) A commercial carrier shall ensure that every person travelling on board is in possession of all
travel documents required for lawful entry into or exit from Antigua and Barbuda.

(2) A commercial carrier commits an offence if the commercial carrier knowingly permits a conveyance
to be used for the purpose of—

(a) bringing a person into Antigua and Barbuda without the travel documents required for
the lawful entry of that person into Antigua and Barbuda;

(b) taking a person out of Antigua and Barbuda without the travel documents required for
the lawful departure of that person from Antigua and Barbuda; or

(c) committing the offence of migrant smuggling.

(3) A commercial carrier commits an offence if, having reasonable grounds to believe that a
conveyance is to be used for the purpose of—

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(a) bringing a person into Antigua and Barbuda without the travel documents required for
the lawful entry of that person into Antigua and Barbuda;

(b) taking a person out of Antigua and Barbuda without the travel documents required for
the lawful departure of that person from Antigua and Barbuda; or

(c) committing the offence of migrant smuggling,

the commercial carrier permits the conveyance to be so used.

(4) A person who commits an offence under subsection (2) or (3) is liable on summary conviction—

(a) in the case of an individual, to a fine not exceeding four hundred thousand dollars or to
imprisonment for a term not exceeding twenty years; and

(b) in the case of a body corporate, to a fine not exceeding five hundred thousand dollars.

(5) In proceedings for an offence under this section, it shall be a defence for a person charged to
prove that—

(a) the person had reasonable grounds to believe that the travel documents of the person
travelling on board were travel documents required for lawful entry into or lawful exit from
Antigua and Barbuda by that person;

(b) the person travelling on board possessed travel documents required for lawful entry into
or lawful exit from Antigua and Barbuda when that person boarded, or last boarded, the
conveyance to travel to or from Antigua or Barbuda; or

(c) the entry of the person into Antigua and Barbuda occurred only because of illness or
injury to that person, stress of weather or any other circumstances beyond the control of
the person charged.

PART III
ENFORCEMENT

18. Enforcement officers

(1) The following persons shall be enforcement officers for the purposes of this Act and may
exercise all powers of enforcement—

(a) a police officer;

(b) an immigration officer; and

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(c) an officer of the Coast Guard.

(2) An enforcement officer when acting against a person under this Act shall declare his office and shall
produce to the person against whom he is acting any authority card which has been issued to him.

19. Powers of investigation

An enforcement officer shall have all the powers necessary to carry out an investigation for any
offence under this Act.

20. Power of arrest

(1) An enforcement officer may, without a warrant, arrest a person—

(a) found committing or attempting to commit or abetting the commission of an offence under
this Act; or

(b) who the enforcement officer reasonably suspects of being engaged in committing or
attempting to commit or abetting the commission of an offence under this Act.

(2) An enforcement officer making an arrest under subsection (1) shall, without delay, bring the
person arrested to the nearest police station, and thereafter the person shall be dealt with in accordance
with the law relating to criminal procedure for the time being in force.

21. Search and seizure with warrant

(1) If it appears to a Magistrate, upon written information on oath and after such enquiry as the
Magistrate considers necessary, that there is reasonable cause to believe that—

(a) any premises or conveyance has been used or is about to be used for; or

(b) there is in any premises or conveyance evidence necessary to the conduct of an
investigation into,

the commission of an offence under this Act, the Magistrate may issue a warrant authorising the
police officer named therein, at any reasonable time, by day or by night, to enter the premises or
conveyance.

(2) A warrant issued under subsection (1) may authorise the police offic r to—

(a) enter and search the premises or conveyance for any evidence of or evidence relating to
the commission of such offence;

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(b) seize or remove from the premises or conveyance, any personal property, book, record,
report or document or any other thing that is reasonably believed to be evidence of the
commission of such offence; and

(c) make copies of, or take extracts from any book, record, report or document found in the
premises or conveyance.

(3) A police oficer entering any premises or conveyance under this section may take with him such
other persons or equipment as may appear to him to be necessary.

(4) A police oficer, in the exercise of his powers under this section, may if necessary—

(a) break open any outer or inner door of the premises or conveyance or any obstruction to
the premises or conveyance in order to effect entry into the premises or conveyance;

(b) remove by force any obstruction to entry, search, seizure or removal as he is empowered
to effect under this section; and

(c) detain a person found in the premises or conveyance until the search has been completed.

(5) A warrant issued under this section shall include—

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

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

(c) the time, not being later than fourteen days from date of issue, when the warrant expires.

(6) Where, by reason of its nature, size or amount, it is not practicable to remove any thing seized
under this section, the police officer may, by any means, seal such thing in the premises or conveyance
in which it is found.

(7) A person who, without lawful authority, breaks, tampers with or damages the seal referred to in
subsection (6) or removes the thing under seal, or attempts to do so, commits an offence and is liable
on summary conviction to a fine not exceeding fifty thousand dollars or to imprisonment for a term not
exceeding two years.

(8) A warrant shall not be issued under this section unless the informant or some other person has
given, on oath, such further information as the Magistrate may require concerning the grounds on
which the of the warrant is sought.

22. Search and seizure without warrant

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(1) Where a police officer has reasonable grounds to believe that by reason of delay in obtaining
a search warrant under section 21 an investigation into the commission of an offence under this Act
would be adversely affected or evidence of the commission of an offence under this Act is likely to be
tampered with, removed, damaged or destroyed, he may, without warrant and with such assistance
and force as is necessary—

(a) enter and search any premises;

(b) stop and search any conveyance or person;

(c) seize and detain such conveyance, personal property, book, record, report or document
or any other thing found in the premises or conveyance; or

(d) inspect, make copies of or take extracts from any book, record, report or document found
in the premises or conveyance.

(2) In exercising his powers under this section, a police officer shall have all the powers conferred
upon him under section 21 (3), (4) and (6).

23. Access to computerized data

(1) A police oficer conducting a search under this Act shall be given access to computerized data
whether stored in a computer or otherwise.

(2) For the purpose of subsection (1), the police officer shall be provided with the necessary
password, encryption code, decryption code, software or hardware or any other means required for
his access to enable comprehension of the computerized data.

(3) A person who fails to give a police officer conducting a search under this Act access to
computerized data commits an offence and is liable on summary conviction to a fine not exceeding
fifty thousand dollars or to imprisonment for a term not exceeding two years.

24. List of things seized

(1) Except as provided in subsection (2), where any thing is seized under this Part, the police officer
shall prepare a list of the things seized and immediately deliver a copy signed by him to the occupier
of the premises or the owner of the conveyance which has been searched, or to his agent or servant,
at the premises or conveyance.

(2) In the case of unoccupied premises, the police officer shall, whenever possible, post a list of the
things seized conspicuously at the premises.

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(3) Notwithstanding subsection (2), a person with an interest in any premises or conveyance
searched pursuant to this Part is entitled, on request, to receive from the police officer a copy of the list
prepared pursuant to subsection (1).

25. Power to examine persons

(1) An enforcement officer may, by notice in writing, require a person who he believes to be
acquainted with the facts and circumstances of an investigation under this Act to—

(a) attend before him for examination;

(b) produce to him any personal property, ecord, report or document; or

(c) furnish him with a written statement made on oath or affirmation setting out such
information as the enforcement officer may require.

(2) A person examined under subsection (1) shall be legally bound to answer all questions relating
to the investigation put to him by the enforcement officer, but he may refuse to answer any question,
produce any thing or furnish any written statement, the answer to which or the production or furnishing
of which may expose him to a criminal charge, a penalty or forfeiture of property.

(3) An enforcement officer examining a person under subsection (1) shall first inform that person of
the provisions of subsection (2).

26. Forfeiture of property on conviction

(1) Subject to any other law restricting the detention or forfeiture of a conveyance, the property of
a person convicted of an offence under this Act that was used or obtained in the course of the offence
and any benefit gained from the proceeds of the offence is liable to be forfeited to the Crown.

(2) Where a person is convicted of an offence under this Act, the court may, on an application by
the Director of Public Prosecutions, order that anything liable to forfeiture under subsection (1) be
forfeited to the Crown.

(3) The court shall not make a forfeiture order under this section unless it is satisfied that—

(a) the person convicted owns the property seized; or

(b) the owner permitted the property to be used in the commission of the offence.

27. Application for forfeiture order

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(1) The Director of Public Prosecutions shall, before applying for an order of forfeiture under
section 26(2), give to any person who, to his knowledge, is the owner of anything liable to forfeiture
under section 26(1) notice of his intention to apply for a forfeiture order under section 26(2) and the
grounds therefor.

(2) Where the Director of Public Prosecutions is unable to ascertain the owner of or any person
having an interest in the property in relation to which he intends to apply for a forfeiture order, he
shall, no less than 30 days before making the application for a forfeiture order, cause a notice to be
published in a newspaper of general circulation in Antigua and Barbuda, regarding the intention to
apply for a forfeiture order.

28. Disposal of forfeited property

Anything forfeited under section 26 shall be disposed of in such manner as the Attorney-General
deems fit.

29. Cost of holding thing seized

Where any thing seized under this Act is held in the custody of the police pending completion of any
proceedings in respect of an offence under this Act, the cost of holding that thing in custody shall, in
the event that the person is convicted of the offence, be a civil debt due to the Crown by such person
and shall be recoverable accordingly.

30. No costs or damages arising from entry, search or seizure to be recoverable

A person shall not, in respect of any entry or search, or seizure of any thing in the exercise of any
power conferred by this Act, be entitled to the costs of such entry, search, or seizure or to any
damages or other relief unless such entry, search or seizure was made without reasonable cause.

31. Obstruction of enforcement officer

A person who obstructs, impedes, interferes or fails to comply with any lawful demand of an
enforcement officer in the performance of his functions under this Act commits an offence and is liable
on summary conviction to a fine not exceeding one hundred thousand dollars or to imprisonment for
a term not exceeding two years.

32. Tipping-off

(1) A person who—

(a) knows or has reasonable grounds to suspect that an enforcement officer is acting, or is
proposing to act, in connection with an investigation which is being, or is about to be,

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conducted under or for the purposes of this Act; and

(b) discloses to any other person information or any other matter which is likely to prejudice
that investigation or proposed investigation;

commits an offence and is liable on summary conviction to a fine not exceeding fifty thousand dollars
or to imprisonment for a term not exceeding two years.

(2) A person who—

(a) knows or has reasonable grounds to suspect that a disclosure has been made to an
enforcement officer under this Act; and

(b) discloses to any other person information or any other matter which is likely to prejudice
an investigation which might be conducted following the disclosure;

commits an offence and is liable on summary conviction to a fine not exceeding one hundred thousand
dollars or to imprisonment for a term not exceeding two years.

(3) Nothing in subsection (1) or (2) makes it an offence for an attorney-at-law or his employee to
disclose any information or other matter—

(a) to his client in connection with the giving of advice to the client in the course and for the
purpose of the professional employment of the attorney-at-law; or

(b) to a person in contemplation of, or in connection with and for the purpose of, any legal
proceedings.

(4) In proceedings against a person for an offence under this section, it is a defence to prove that—

(a) he did not know or suspect that the disclosure made under subsection (2) was likely to
prejudice the investigation; or

(b) he had lawful authority or reasonable excuse for making the disclosure.

PART IV

MISCELLANEOUS

33. Institution of proceedings

Notwithstanding any other written law prescribing the period within which summary proceedings

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may be commenced, proceedings for an offence under this Act or the regulations may be commenced
within five years from the date of the commission of the offence.

34. Compensation to State

(1) The Attorney-General may apply to the court for an order for a person convicted of migrant
smuggling to pay to the Crown an amount in compensation for expenses incurred or reasonably
expected to be incurred in connection with the detention in, and removal from Antigua and Barbuda of
the smuggled person.

(2) An order for the payment of compensation under subsection (1) has the effect of a debt due to
the Crown.

35. Admissibility of documentary evidence

A document or other evidence obtained by an enforcement officer in the exercise of his powers under
this Act, or a copy of the document or other evidence, as the case may be, shall be admissible in
evidence in any proceedings under this Act, notwithstanding anything to the contrary in any written
law.

36. Admissibility of translation of documents

(1) Where a document which is to be used in any proceeding against a person for an offence under
this Act is in a language other than English, a translation of that document into English shall be
admissible in evidence where—

(a) the translation is accompanied by a certificate of the person who translated the document
setting out that it is an accurate, faithful and true translation; and

(b) the translation had been done at the instance of an enforcement officer.

(2) Subsection (1) applies to a document which is translated, whether or not—

(a) the document was made in or outside Antigua and Barbuda;

(b) the translation was done in or outside Antigua and Barbuda; or

(c) possession of the document was obtained by an enforcement officer in or outside Antigua
and Barbuda.

37. Offence by body corporate

No. 11 of 2010 The Migrant Smuggling (Prevention) Act, 201021

Where an offence against a provision of this Act has been committed by a body corporate, a person
who at the time of the commission of the offence was—

(a) a director or manager or other similar officer of the body corporate;

(b) purporting to act in the capacity of a director or manager or other similar officer of the
body corporate, or was in any manner responsible for the management of any of the
affairs of the body corporate or was assisting in such management;

shall also be liable for that offence unless he proves that the offence was committed without his
knowledge, consent or connivance, and that he exercised all such diligence to prevent the commission
of the offence as he ought to have exercised, having regard to the nature of his functions in that
capacity and to all the circumstances.

38. Offence by employee or agent

(1) In order to establish the liability of an employer or principal for an offence under Part II, the
conduct of an employee or agent of or any other person acting on behalf of the employer or principal
may be attributed to the employer or principal if that person was acting—

(a) within the scope of his employment;

(b) within the scope of his actual or apparent authority; or

(c) with the consent, whether express or implied, of a director, member or partner of the
employer or principal.

(2) Subsection (1) does not exclude the liability of an employee or agent of or any other person
acting on behalf of the employer or principal for committing the offence of migrant smuggling.

(3) The court may, upon convicting an employer or principal of an offence under Part II, make an
order revoking the licence or registration of the employer or principal to operate the business in the
course of which the offence was committed.

39. Regulations

(1) The Minister may make such regulations as are necessary or expedient to give full effect to, or
for carrying out, the provisions of this Act.

(2) Regulations made under the Act shall be subject to a negative resolution of the House of
Representatives and may prescribe in respect of any contravention of the regulations, a penalty not
exceeding ten thousand dollars or eighteen months imprisonment or both.

The Migrant Smuggling (Prevention) Act, 2010 No. 11 of 201022

Passed by the Senate on the 10th day
of June, 2010.

Hazlyn M. Francis,
President.

Thelma Thomas,
Clerk to the Senate.

Passed by the House of Representatives on
the 27th day of May, 2010.

D. Gisele Isaac-Arrindell,
Speaker.

Thelma Thomas,
Clerk to the House of Representatives.

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