Proceeds of Crime Act 1997
PROCEEDS OF CRIME ACT 1997
1
BERMUDA
1997 : 34
PROCEEDS OF CRIME ACT 1997
[Date of Assent 19 December 1997]
[Operative Date 19 January 1998]
ARRANGEMENT OF SECTIONS
PART I
PRELIMINARY
Introductory
1 Short title
2 Commencement and
application
Interpretation
3 Meaning of "drug
trafficking", "relevant
offence", "criminal
conduct"
4 Meaning of "property",
"realisable property" etc
5 Value of property
6 Gifts caught by this Act
7 Other definitions
8 Institution and conclusion
of proceedings
PART II
CONFISCATION ORDERS
Confiscation orders
9 Confiscation orders: drug
trafficking
10 Confiscation orders:
relevant offences
11 Postponed determinations
12 Assessing proceeds of
drug trafficking
13 Statements
14 Provision of information
by defendant
15 Amount to be recovered
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16 Protection of third party
rights
Subsequent proceedings
17 Reconsideration of case
18 Revised assessment of
proceeds of criminal
conduct
19 Reconsideration etc:
supplementary
20 Increase in realisable
property
21 Inadequacy of realisable
property
Absconded persons etc
22 Confiscation order where
defendant has absconded
or died
23 Variation of order made
against absconder
24 Discharge of order where
absconder acquitted etc
PART III
ENFORCEMENT OF
CONFISCATION ORDERS
Default powers
25 Imprisonment in default
26 Interest on unpaid sums
Restraint and charging orders
27 Cases in which orders
may be made
28 Restraint orders
29 Charging orders
30 Charging orders:
supplementary
Realisation of property
31 Realisation of property
32 Application of proceeds of
realisation etc
33 Exercise of powers for
realisation of property
34 Receivers: supplementary
Insolvency
35 Bankruptcy of defendant
36 Winding up of company
holding realisable
property
PART IV
INFORMATION GATHERING
POWERS
37 Production orders
38 Failure to comply with
production order
39 Search warrants
40 Disclosure of information
by Government
Departments
41 Monitoring orders
42 Offence of prejudicing
investigation
PART V
MONEY LAUNDERING
Offences
43 Concealing or transferring
proceeds of criminal
conduct
44 Assisting another to retain
proceeds of criminal
conduct
45 Acquisition, possession or
use of proceeds of
criminal conduct
46 Disclosure of knowledge
or suspicion of money
laundering
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47 Tipping-off
Penalties
48 Penalties for money
laundering etc
Prevention of money laundering
49 Establishment of
Committee; regulations
etc
PART VI
SEIZURE OF CASH
50 Seizure and detention of
cash imported or exported
51 Forfeiture orders and
appeals
52 Seizure: supplementary
PART VII
MISCELLANEOUS &
SUPPLEMENTAL
Foreign orders etc
53 Enforcement of external
confiscation orders
54 Registration of external
confiscation orders
55 Evidence of corresponding
law
Offences and police powers etc
56 Offences by bodies
corporate
57 Police powers etc
58 Police officers: duty of
confidentiality
Procedure
59 Jurisdiction
60 Compensation
61 Costs
62 Civil standard of proof
63 Appeals
Supplemental
64 Index of defined
expressions
65 Regulations
66 Crown application
67 Repeals
68 Transitional provision
69 Consequential
amendments
SCHEDULE
Relevant offences
WHEREAS it is expedient to extend the powers of the police and
the courts in relation to the tracing and confiscation of the proceeds of
drug trafficking; to make new provision in relation to the tracing and
confiscation of the proceeds of certain other indictable offences; to make
new and amended provision in relation to money laundering; to extend
the powers of seizure and forfeiture on import or export of cash
suspected of being the proceeds of criminal conduct; and to make
connected and consequential provision;
Be it enacted by The Queen's Most Excellent Majesty, by and
with the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:
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PART I
PRELIMINARY
Introductory
Short title
1 This Act may be cited as the Proceeds of Crime Act 1997.
Commencement and application
2 (1) This Act shall come into operation on such day as the
Minister responsible for the Police may appoint by notice published in
the Gazette.
(2) This Act shall apply to any property, whether or not
situated in Bermuda.
Interpretation
Meaning of "drug trafficking", "relevant offence", "criminal conduct"
3 In this Act—
"criminal conduct" means
(a) drug trafficking, or
(b) any relevant offence;
"drug trafficking offence" means an offence
(a) under section 4, 5, 6(3), 7 or 11 of the Misuse of Drugs
Act 1972 (importation, production, possession with
intent to supply or handling of controlled drugs and
cultivation of cannabis);
(b) under section 12 or 17 of the Criminal Justice
(International Co-operation) (Bermuda) Act 1994
(manufacture and supply of scheduled substances and
using ship for illicit traffic); or
(c) under section 43, 44 or 45 of this Act (money
laundering) which relates to the proceeds of drug
trafficking;
or an offence under section 32, 33, 230 or 231 of the
Criminal Code Act 1907 (attempt, incitement, conspiracy etc)
deriving from such an offence;
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"drug trafficking" means doing or being concerned in, whether in
Bermuda or elsewhere, any act constituting—
(a) a drug trafficking offence, or
(b) an offence punishable under a corresponding law,
and includes entering into or being otherwise concerned in,
whether in Bermuda or elsewhere, a drug trafficking
arrangement;
"drug trafficking arrangement" means an arrangement
whereby—
(a) the retention or control by or on behalf of another
person of that other person's proceeds of drug trafficking
is facilitated; or
(b) the proceeds of drug trafficking by another person are
used to secure that funds are placed at that other
person's disposal or are used for that other person's
benefit to acquire property by way of investment;
"relevant offence" means
(a) an offence listed in the Schedule; or
(b) any act or omission which, had it occurred in Bermuda,
would have constituted an offence listed in the Schedule.
Meaning of "property", "realisable property" etc
4 (1) In this Act—
"property" means money and all other property, movable or
immovable, including things in action and other intangible or
incorporeal property; and
"interest", in relation to property, includes right.
(2) For the purposes of this Act—
(a) property is held by any person if he holds any interest in
it;
(b) references to property held by a person include a
reference to property vested in his trustee in bankruptcy
or liquidator;
(c) references to an interest held in property by a person
beneficially include a reference to an interest which
would be held by him beneficially if the property were
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not so vested in his trustee in bankruptcy or liquidator;
and
(d) property is transferred by one person to another if the
first person transfers or grants to the other any interest
in the property.
(3) In this Act, "realisable property" means—
(a) any property held by the defendant (other than property
in respect of which there is in force a forfeiture order
under section 37 of the Misuse of Drugs Act 1972); and
(b) any property held by a person to whom the defendant
has, directly or indirectly, made a gift caught by this Act.
(4) For the purposes of this Act, the amount that might be
realised at the time a confiscation order is made against the defendant
shall be—
(a) the total of the values at that time of all the realisable
property held by the defendant; less
(b) where there are obligations having priority at that time,
the total amounts payable in pursuance of such
obligations,
together with the total of the values at that time of all gifts caught by this
Act.
(5) For the purposes of subsection (4), an obligation has
priority at any time if it is an obligation of the defendant—
(a) to pay an amount due in respect of a fine, or other order
imposed or made on conviction of an offence, where the
fine was imposed or order made before the confiscation
order; or
(b) to pay any sum which would be included among the
preferential debts in the defendant's bankruptcy
commencing on the date of the confiscation order or
winding up under an order of the court made on that
date.
(6) For the purposes of subsection (5)(b), "preferential debts"—
(a) in relation to bankruptcy, means the debts to be paid in
priority under section 39 of the Bankruptcy Act 1989
(assuming the date of the confiscation order to be the
date of the receiving order); and
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(b) in relation to winding up, means the debts to be paid in
priority in accordance with section 236 of the Companies
Act 1981 (assuming the date of the confiscation order to
be the date of the winding up).
Value of property
5 (1) Subject to the following subsections and section 6, for the
purposes of this Act, the value of property (other than cash) in relation to
any person holding the property shall be its market value, except that
where any other person holds an interest in the property, the value shall
be—
(a) the market value of the first-mentioned person's
beneficial interest in the property, less
(b) the amount required to discharge any incumbrance
(other than a charging order) on that interest.
(2) Subject to section 6(3), references in this Act to the value at
any time (referred to in subsection (3) as the "material time") of a gift
caught by this Act are references 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) where subsection (3) applies, the value mentioned
therein,
whichever is the greater.
(3) Subject to section 6(3), if 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 (2)(b) shall be the value to him at the
material time of the property mentioned in paragraph (a) or as the case
may be, of the property mentioned in paragraph (b) so far as it so
represents the property which he received, but disregarding in either
case any charging order.
Gifts caught by this Act
6 (1) In relation to a drug trafficking offence, a gift (including a
gift made before the commencement of this Act) is caught by this Act if—
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(a) it was made by the defendant at any time since the
beginning of the period of six years ending
(i) when the proceedings for the drug trafficking
offence were instituted against him, or
(ii) where no such proceedings have been instituted,
when an application for a charging or restraint
order is made under section 28 or 29; or
(b) it was made by the defendant at any time and was a gift
of property
(i) received by the defendant in connection with
drug trafficking carried on by him or another
person, or
(ii) which in whole or in part directly or indirectly
represented in the defendant's hands property
received by him in that connection.
(2) In relation to a relevant offence, a gift (including a gift made
before the commencement of this Act) is caught by this Act if—
(a) it was made by the defendant at any time since the
commission of the relevant offence, or, if more than one,
the earliest of the offences to which the proceedings
relate (including any offence which the court takes into
consideration in determining his sentence); and
(b) the court considers it appropriate in all the
circumstances to take the gift into account.
(3) For the purposes of this Act—
(a) the circumstances in which the defendant is to be
treated as making a gift include those where he 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
defendant; and
(b) in those circumstances, this section and section 5 shall
apply as if the defendant had made a gift of such share
in the property as bears to the whole property the same
proportion as the difference between the values referred
to in paragraph (a) bears to the value of the
consideration provided by the defendant.
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Other definitions
7 In this Act—
"Bermuda Monetary Authority" means the Authority established
under section 2 of the Bermuda Monetary Authority Act
1969;
"confiscation order" means an order made under section 9 or 10
(including such an order made by virtue of section 17 or 22);
"the court" means the Supreme Court;
"defendant" means a person against whom proceedings have
been instituted for an offence (whether or not he has been
convicted);
"items subject to legal privilege" means—
(a) communications between a professional legal adviser,
and his client made in connection with the giving of legal
advice to the client; and
(b) communications between a professional legal adviser
and his client or between such an adviser and any other
person made in connection with or in contemplation of
legal proceedings and for the purpose of such proceed-
ings,
when they are in the possession of a person who is entitled to
possession of them; but items held with the intention of
furthering a criminal purpose are not items subject to legal
privilege;
"material" includes any book, document or other record in any
form whatsoever, and any container or article relating
thereto;
"money laundering" means doing any act—
(a) which constitutes an offence under section 43, 44 or 45;
or
(b) which would constitute such an offence if done in
Bermuda;
and for these purposes, having possession of any property
shall be taken to be doing an act in relation to it;
"premises" includes any place and, in particular, includes
(a) any vehicle, vessel, aircraft, or offshore structure, and
(b) any tent or moveable structure;
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"prescribe" means prescribe by regulations made under section
65.
Institution and conclusion of proceedings
8 (1) For the purposes of this Act—
(a) proceedings for an offence are instituted in Bermuda
when an information is laid charging a person with an
offence;
(b) proceedings in Bermuda for an offence are concluded on
the occurrence of one of the following events—
(i) the discontinuance of the proceedings;
(ii) the acquittal of the defendant;
(iii) the quashing of the defendant's conviction for
the offence;
(iv) the satisfaction of a confiscation order made in
the proceedings;
(c) an application under section 17, 18, 20 or 22 is
concluded
(i) if the court decides not to make or vary (as the
case may be) a confiscation order against the
defendant, when it makes that decision; or
(ii) if a confiscation order is made or varied as a
result of that application, when the order is
satisfied;
(d) a confiscation order is satisfied when no amount is due
under it.
(2) For the purposes of this Act, an order is subject to appeal
until (disregarding any power of a court to grant leave to appeal out of
time) there is no further possibility of an appeal on which the order could
be varied or set aside.
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PART II
CONFISCATION ORDERS
Confiscation orders
Confiscation orders: drug trafficking
9 (1) Where a defendant appears before the Supreme Court to be
sentenced for one or more drug trafficking offences, the court shall
proceed under this section
(a) on the application of the Attorney-General, or
(b) of its own motion where it considers it appropriate to do
so.
(2) The court shall first determine whether the defendant has
benefited from drug trafficking.
(3) For the purposes of this Act, a person has benefited from
drug trafficking if he has at any time (whether before or after the
commencement of this Act) received any payment or other reward in
connection with drug trafficking carried on by him or another person.
(4) If the court determines that he has so benefited, it shall,
before sentencing or otherwise dealing with him in respect of the offence
or (as the case may be) any of the offences concerned, make a
confiscation order and determine in accordance with section 15 the
amount to be recovered in his case under the order.
(5) The court shall then, in respect of the offence or offences
concerned—
(a) order the defendant to pay the amount of the
confiscation order within such period as it may specify;
and
(b) take into account the confiscation order before
(i) imposing any fine on him;
(ii) making any other order involving any payment
by him; and
(iii) making any order under section 37 of the
Misuse of Drugs Act 1972 (forfeiture); but
(c) subject to paragraph (b), leave the confiscation order out
of account in determining the appropriate sentence or
other manner of dealing with the defendant.
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Confiscation orders: relevant offences
10 (1) Where a defendant appears before the Supreme Court to be
sentenced for one or more relevant offences, the court shall proceed
under this section
(a) on the application of the Attorney-General, or
(b) of its own motion where it considers it appropriate to do
so.
(2) The court shall first determine whether the defendant has
benefited from
(a) the offence or offences for which he is to be sentenced
("the principal offence"),
(b) any other relevant offence of which he was convicted in
the same proceedings as the principal offence, and
(c) any relevant offences which the court will be taking into
consideration in determining his sentence for the
principal offence.
(3) For the purposes of this Act
(a) a person benefits from an offence if he obtains property
as a result of or in connection with its commission and
his benefit is the value of any property so obtained; and
(b) if he derives a pecuniary advantage as a result of or in
connection with the commission of an offence, he is to be
treated as if he had obtained instead a sum of money
equal to the value of the pecuniary advantage.
(4) If the court determines that the defendant has benefited
from the offences mentioned in subsection (2), it shall, before sentencing
or otherwise dealing with him in respect of the principal offence, make a
confiscation order and determine in accordance with section 15 the
amount to be recovered in his case under the order.
(5) The court shall then in respect of the principal offence—
(a) order the defendant to pay the amount of the
confiscation order within such period as it may specify;
and
(b) take into account the confiscation order before
(i) imposing any fine on him, or
(ii) making any other order involving any payment
by him; but
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(c) subject to paragraph (b), leave the confiscation order out
of account in determining the appropriate sentence or
other manner of dealing with the defendant.
Postponed determinations
11 (1) Where the court is proceeding under section 9 or 10 (as the
case may be), but considers that it needs more information before
(a) determining whether the defendant has benefited as
mentioned in the section in question, or
(b) determining the amount to be recovered from him under
a confiscation order,
it may, for the purpose of enabling that information to be obtained,
postpone making the determination for such period as it may specify.
(2) More than one postponement may be made under
subsection (1).
(3) Unless satisfied that there are exceptional circumstances,
the court shall not specify a period under subsection (1) which, by itself
or taken together with any other postponement under this section,
exceeds six months from the date of conviction.
(4) Where the defendant appeals against his conviction, the
court may on that account
(a) postpone making either or both of the determinations
mentioned in subsection (1) for such period as it may
specify; or
(b) where it has exercised its powers to postpone, extend the
specified period.
(5) A postponement or extension under subsection (1) or (4)
may be made on the application of the Attorney-General or the defence
or by the court of its own motion.
(6) Unless the court is satisfied there are exceptional
circumstances, any postponement or extension under subsection (4)
shall not extend beyond three months after the appeal is determined or
otherwise disposed of.
(7) Where the court exercises its power under this section it
may nevertheless proceed to sentence the defendant in respect of the
offence in question or any such offences; and on making a postponed
confiscation order by virtue of this section it may vary any fine or other
order involving payment imposed on the defendant in accordance with
subsection (5)(b) of section 9 or 10 (as the case may be).
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Assessing proceeds of drug trafficking
12 (1) For the purposes of this Act
(a) any payments or other rewards received by a person at
any time (whether before or after the commencement of
this Act) in connection with drug trafficking carried on
by him or another person are his proceeds of drug
trafficking; and
(b) the value of his proceeds of drug trafficking is the
aggregate of the values of the payments or other
rewards.
(2) Subject to subsections (4) and (5), the court shall make the
required assumptions for the purpose
(a) of determining whether the defendant has benefited from
drug trafficking, and
(b) if he has, of determining the value of his proceeds of
drug trafficking.
(3) The required assumptions are
(a) that any property appearing to the court
(i) to have been held by the defendant at any time
since his conviction, or
(ii) to have been transferred to him at any time
since the beginning of the period of six years
ending when the proceedings were instituted
against him,
was received by him as a payment or reward in
connection with drug trafficking carried on by him;
(b) that any expenditure of his since the beginning of that
period was met out of payments received by him in
connection with drug trafficking carried on by him;
(c) that, for the purpose of valuing any property received or
assumed to have been received by him at any time as
such a reward, he received the property free of other
interests in it.
(4) The court shall not make any of the required assumptions
in relation to any particular property or expenditure if
(a) that assumption is shown to be incorrect in the
defendant's case; or
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(b) the court is satisfied that there would be a serious risk of
injustice in the defendant's case if that assumption were
to be made;
and where the court, by virtue of this subsection, does not make one of
the required assumptions it shall state its reasons.
(5) Subsection (2) does not apply if the only drug trafficking
offence in respect of which the defendant appears before the court for
sentencing is an offence under section 43, 44 or 45 relating to the
proceeds of drug trafficking.
(6) For the purpose of assessing the value of the proceeds
derived by the defendant from drug trafficking in a case where a
confiscation order has previously been made against him (under this Act
or the Drug Trafficking Suppression Act 1988) the court shall leave out
of account any such proceeds that are shown to the court to have been
taken into account in determining the amount to be recovered under the
previous order.
Statements
13 (1) Where the Attorney-General asks the court to proceed
under section 9 or 10 he shall give the court, within such period as it
may direct, a statement (a "prosecutor's statement") of matters which he
considers relevant in connection with
(a) determining whether the defendant has benefited as
mentioned in the section in question; or
(b) assessing the value of his proceeds of drug trafficking or
benefit from any relevant offences.
(2) Where the court proceeds under section 9 or 10 without the
Attorney-General having asked it to do so, it may require him to give it a
prosecutor's statement, within such period as it may direct.
(3) Where a prosecutor's statement has been given
(a) the Attorney-General may at any time give the court a
further such statement; and
(b) the court may at any time require him to give it a further
such statement, within such period as it may direct.
(4) Where any prosecutor's statement has been given and the
court is satisfied that it has been served on the defendant, it may require
the defendant, within such period as it may direct
(a) to indicate the extent to which he accepts the allegations
in the statement; and
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(b) so far as he does not accept any such allegation, to give
particulars of any matters on which he proposes to rely;
and the court may for the purposes of the determination and assessment
mentioned in subsection (1) treat any acceptance by the defendant as
conclusive of the matters to which it relates.
(5) To the extent that the defendant fails in any respect to
comply with a requirement under subsection (4), he may be treated for
the purposes of this section as accepting every allegation in the
statement.
(6) Where—
(a) there is tendered to the court by the defendant 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 Attorney-General accepts to any extent any
allegation in the statement,
the court may, for the purposes of that determination, treat that
acceptance as conclusive of the matters to which it relates.
(7) An allegation may be accepted or a matter indicated for the
purposes of this section either orally before the court or in writing.
(8) No acceptance by the defendant under this section that
proceeds have been derived by him from drug trafficking or from any
relevant offence shall be admissible in evidence in any proceedings for an
offence.
Provision of information by defendant
14 (1) For the purpose of obtaining information to assist it in
carrying out its functions in relation to making a confiscation order, the
court may order the defendant to give it such information in such
manner and before such date as may be specified in the order.
(2) If the defendant fails without reasonable excuse to comply
with any order under this section, the court may draw such inference
from that failure as it considers appropriate.
(3) Where the Attorney-General accepts to any extent any
allegation made by the defendant in giving to the court information
required under this section, the court may treat that acceptance as
conclusive of the matters to which it relates.
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Amount to be recovered
15 (1) Subject to subsection (3), the amount to be recovered under
a confiscation order shall be the amount the court assesses to be the
value of the defendant's proceeds of drug trafficking or benefit from
relevant offences (as the case may be).
(2) If the court is satisfied as to any matter relevant for
determining the amount that might be realised at the time the
confiscation order is made (whether by reason of the acceptance of an
allegation made in a statement given under section 13 or made in the
giving of information under section 14 or otherwise), the court may issue
a certificate giving its opinion as to the matters concerned and shall do
so if satisfied as mentioned in subsection (3).
(3) If the court is satisfied that the amount that might be
realised at the time the confiscation order is made is less than the
amount the court assesses to be the value of the defendant's proceeds of
drug trafficking or benefit from relevant offences (as the case may be),
the amount to be recovered under the confiscation order shall be the
amount appearing to the court to be the amount that might be so
realised.
Protection of third party rights
16 (1) Where an application is made for a confiscation order, a
person who asserts an interest in realisable property may apply to the
court, before the confiscation order is made, for an order under
subsection (2).
(2) If a person applies to the court for an order under this
subsection in respect of his interest in realisable property and the court
is satisfied—
(a) that he was not in any way involved in the defendant's
criminal conduct; and
(b) 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 involved in or was the
proceeds of criminal conduct,
the court shall make an order declaring the nature, extent and value (as
at the time the order is made) of his interest.
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(3) Subject to subsection (4), where a confiscation order has
already been made, a person who asserts an interest in the property may
apply under this subsection to the court for an order under subsection
(2).
(4) Except with the leave of the court, an application shall not
be made under subsection (3)—
(a) by a person
(i) who had knowledge of the application for a
confiscation order before the order was made, or
(ii) who appeared at the hearing of that application;
or
(b) later than 28 days beginning with the day on which the
confiscation order was made.
(5) A person who makes an application under subsection (1) or
(3) shall give not less than seven days' written notice of the making of the
application to the Attorney-General who shall be a party to any
proceedings on the application.
Subsequent proceedings
Reconsideration of case
17 (1) This section applies where a defendant has appeared before
the Supreme Court to be sentenced in respect of one or more drug
trafficking or relevant offences but the court has not made a confiscation
order because either
(a) it did not proceed under section 9 or 10, or
(b) the court has made a determination under subsection
(2) of section 9 or 10 ("a subsection (2) determination")
that the defendant has not benefited from drug
trafficking or from any relevant offence.
(2) If the Attorney-General has evidence which was not
previously available but which he believes would have led the court to
determine that the defendant had benefited from drug trafficking or from
any relevant offence he may make an application to the court.
(3) On such an application the court shall consider the
evidence and if satisfied that the defendant had so benefited, the court
shall make a confiscation order and order the payment of such amount
as it thinks just in all the circumstances of the case, including in
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particular the amount of any fine or other orders for payment imposed
on the defendant in respect of the offence or offences in question.
Revised assessment of proceeds of criminal conduct
18 (1) This section applies where the court has made a
determination of the amount to be recovered under a confiscation order
("the current determination").
(2) Where the Attorney-General is of the opinion that the real
value of the defendant's proceeds of drug trafficking or benefit from any
relevant offences was greater than their assessed value, he may apply to
the court for the evidence on which he has formed his opinion to be
considered by the court.
(3) If, having considered the evidence, the court is satisfied that
the real value of the defendant's proceeds of drug trafficking or benefit
from any relevant offences is greater than their assessed value (whether
because the real value at the time of the current determination was
higher than was thought or because the value of the proceeds or benefit
in question has subsequently increased), the court shall make a fresh
determination of the amount to be recovered under a confiscation order.
(4) In subsections (2) and (3)
"assessed value" means the value of the defendant's proceeds of
drug trafficking or benefit from any relevant offences as
assessed by the court in accordance with section 15(1) of this
Act; and
"real value" means—
(a) the value of the defendant's proceeds of drug trafficking
which took place in the period by reference to which the
current determination was made or in any earlier period;
or
(b) the value of his benefit from any of the relevant offences
mentioned in section 10(2).
(5) Any determination by virtue of this section shall be by
reference to the amount that might be realised at the time when the
determination is made.
(6) For the avoidance of doubt, section 12(6) shall not apply in
relation to any of the defendant's proceeds of drug trafficking taken into
account in respect of the current determination.
(7) If, as a result of making the fresh determination required by
subsection (3), the amount to be recovered exceeds the amount set by
the current determination, the court may substitute for the amount to be
PROCEEDS OF CRIME ACT 1997
20
recovered under the confiscation order such greater amount as it thinks
just in all the circumstances of the case.
(8) Where the court varies a confiscation order by virtue of this
section it shall substitute for the term of imprisonment in default fixed
under section 25(1) in respect of the amount to be recovered under the
order such longer term as may be determined in accordance with that
section in respect of the greater amount to be recovered under the order
as varied.
Reconsideration etc: supplementary
19 (1) On an application under section 17 or 18, the court may
take into account any payment or other reward received by the
defendant on or after the date
(a) of the conviction (in the case of an application under
section 17 by virtue of subsection (1)(a));
(b) of the subsection (2) determination (in the case of an
application under section 17 by virtue of subsection
(1)(b)); or
(c) of the current determination (in the case of an
application under section 18);
but only if the Attorney-General shows that it was received by the
defendant in connection with drug trafficking carried on, or with any
relevant offence committed, on or before that date.
(2) In considering any evidence which relates to any payment
or reward in relation to drug trafficking to which subsection (1) applies,
the court shall not make the assumptions which would otherwise be
required by section 12.
(3) No application shall be entertained by the court under
section 17 or 18 if it is made after the end of the period of six years
beginning with the date on which the defendant was convicted, or where
the application relates to more than one conviction, the date of the latest
conviction.
(4) Sections 13 and 14 apply, with such modifications as may
be necessary, in relation to applications under sections 17 and 18 as
they apply in relation to proceedings under sections 9 and 10.
Increase in realisable property
20 (1) This section applies where, by virtue of section 15(3), the
amount which a person is ordered to pay under a confiscation order is
PROCEEDS OF CRIME ACT 1997
21
less than the amount assessed to be his proceeds of drug trafficking or
benefit from relevant offences (as the case may be).
(2) If, on an application made
(a) by the Attorney-General, or
(b) by a receiver appointed under section 28 or 31 in
relation to the realisable property of the person in
question,
the court is satisfied that the amount that might be realised in the case
of the person in question is greater than the amount taken into account
in making the confiscation order (whether it was greater than was
thought when the order was made or has subsequently increased), the
court shall issue a certificate to that effect, giving its reasons.
(3) Where a certificate has been issued the Attorney-General
may apply to the court for an increase in the amount to be recovered
under the confiscation order; and on that application the court may—
(a) substitute for that amount such amount not exceeding
the amount assessed as the value referred to in
subsection (1) as appears to the court to be appropriate
having regard to the amount now shown to be realisable;
and
(b) increase the term of imprisonment fixed in respect of the
confiscation order under section 25(1) if the effect of the
substitution is to increase the maximum period
applicable in relation to the order under that section.
Inadequacy of realisable property
21 (1) If, on an application made in respect of a confiscation order,
(a) by the defendant; or
(b) by a receiver appointed under section 28 or 31,
the court is satisfied that the realisable property is inadequate for the
payment of any amount remaining to be recovered under the order, the
court shall issue a certificate to that effect, giving its reasons.
(2) For the purposes of subsection (1)—
(a) in the case of realisable property held by a person who
has been adjudged bankrupt, the court shall take into
account the extent to which any property held by him
may be distributed among creditors; and
PROCEEDS OF CRIME ACT 1997
22
(b) the court may disregard any inadequacy in the realisable
property which appears to the court to be attributable,
wholly or partly, to anything done by the defendant for
the purpose of preserving any property held by a person
to whom the defendant had, directly or indirectly, made
a gift caught by this Act from any risk of realisation
under this Act.
(3) Where a certificate has been issued under subsection (1),
the person who applied for it may apply to the court which made the
confiscation order for the amount to be recovered under the order to be
reduced.
(4) The court shall, on an application under subsection (3)—
(a) substitute for the amount to be recovered under the
order such lesser amount as the court thinks just in all
the circumstances of the case; and
(b) substitute for the term of imprisonment in default fixed
under section 25(1) in respect of the amount to be
recovered under the order a shorter term if such is
determined in accordance with that section in respect of
the lesser amount to be recovered under the order as
varied.
(5) Any person appearing to the court to be likely to be affected
by any exercise of its powers under this section shall be entitled to
appear before the court and make representations.
Absconded persons etc
Confiscation order where defendant has absconded or died
22 (1) Where a person has been convicted of one or more drug
trafficking or relevant offences, on the application of the Attorney-
General the court may make a confiscation order against him if satisfied
that he has absconded or died.
(2) Where proceedings for one or more drug trafficking or
relevant offences have been instituted but not concluded, on the
application of the Attorney-General the court may make a confiscation
order against the defendant if satisfied that he has absconded, but shall
not do so until after the period of two years beginning with the date
which is, in the opinion of the court, the date on which the defendant
absconded.
(3) In any proceedings under this section
PROCEEDS OF CRIME ACT 1997
23
(a) section 12(2) shall not apply;
(b) section 13 shall apply with the omission of subsections
(4) to (6);
(c) the court shall not make a confiscation order against a
defendant unless it is satisfied that the Attorney-General
has taken reasonable steps to contact him; and
(d) any person appearing to the court to be likely to be
affected by the making of a confiscation order shall be
entitled to appear before the court and make
representations.
(4) Where an application has been made to the court under
this section in relation to a defendant who has absconded and the court
has decided not to make a confiscation order against him, section 17
shall not apply at any time while he remains an absconder.
Variation of order made against absconder
23 (1) Where a confiscation order is made by virtue of section
22(2) and the defendant ceases to be an absconder, he may apply to the
court for a variation of the amount to be recovered under the order.
(2) If on such an application the court is satisfied that the
value of the defendant's proceeds of drug trafficking in the period by
reference to which the determination in question was made, or the value
of his benefit from relevant offences, or the amount that might have been
realised at the time the order was made, was less than the amount
ordered to be paid under the confiscation order, the court
(a) may if it considers it just in all the circumstances reduce
the amount to be recovered under the confiscation order,
and
(b) if it does so, shall reduce the term of imprisonment in
default in accordance with section 25(1).
(3) Where the court reduces the amount to be recovered under
a confiscation order it may, on the application of a person who held
property which was realisable property, order compensation to be paid to
him if satisfied that he has suffered loss as a result of the making of the
confiscation order and if, having regard to all the circumstances of the
case, it considers it appropriate to do so.
(4) No application shall be entertained by the court if it is made
after the end of six years beginning on the day on which the confiscation
order was made.
PROCEEDS OF CRIME ACT 1997
24
Discharge of order where absconder acquitted etc
24 (1) Where a confiscation order is made by virtue of section
22(2) and the defendant is subsequently tried for the offence or offences
in question and acquitted on all counts, the court shall cancel the
confiscation order.
(2) Where a confiscation order is made by virtue of section
22(2) against a person who ceases to be an absconder and subsection (1)
of this section does not apply, the court may on the application of the
defendant cancel the confiscation order if satisfied that
(a) there has been undue delay in continuing the
proceedings in respect of which the power under section
22(2) of this Act was exercised; or
(b) the Attorney-General does not intend to proceed with the
prosecution.
(3) Where the court cancels a confiscation order under this
section it may, on the application of a person who held property which
was realisable property, order compensation to be paid to him if satisfied
that he has suffered loss as a result of the making of the confiscation
order and if, having regard to all the circumstances of the case it
considers it appropriate to do so.
(4) Where the court cancels a confiscation order under this
section it may make such consequential or incidental order as it thinks
fit.
PART III
ENFORCEMENT OF CONFISCATION ORDERS
Default powers
Imprisonment in default
25 (1) Notwithstanding section 61 of the Criminal Code Act 1907
(limits on periods of imprisonment in default of fines etc), where the
court orders the defendant to pay an amount under a confiscation order
it shall in addition direct him to be imprisoned in default of payment of
any amount under the confiscation order as follows—
(a) if the amount does not exceed $20,000, for a term not
exceeding 2 years;
(b) if the amount exceeds $20,000 but does not exceed
$50,000, for a term not exceeding 5 years;
PROCEEDS OF CRIME ACT 1997
25
(c) if the amount exceeds $50,000 but does not exceed
$100,000, for a term not exceeding 7 years; and
(d) if the amount exceeds $100,000, for a term not
exceeding 10 years.
(2) Where—
(a) a warrant to commit the defendant to prison is issued
for a default in payment of an amount ordered to be paid
under a confiscation order in respect of an offence or
offences; and
(b) at the time the warrant is issued, the defendant is liable
to serve any term of imprisonment in respect of the
offence or offences,
the term of imprisonment to be served in default of payment of the
amount shall not begin to run until after the term mentioned in
paragraph (b).
(3) Where a defendant serves a term of imprisonment in default
of paying any amount due under a confiscation order, his serving that
term does not prevent the confiscation order from continuing to have
effect, so far as any other method of enforcement is concerned.
Interest on unpaid sums
26 (1) If any sum required to be paid by a person under a
confiscation order is not paid when it is required to be paid, that person
shall be liable to pay interest on that sum for the period for which it
remains unpaid; and the amount of interest shall for the purposes of
enforcement, be treated as part of the amount to be recovered from him
under the confiscation order.
(2) The court may, on the application of the Attorney-General,
increase the term of imprisonment fixed in respect of the confiscation
order if the effect of subsection (1) is to increase the maximum period
applicable in relation to the order under section 25(1).
(3) The rate of interest under subsection (1) shall be that for
the time being applying to a judgment debt.
Restraint and charging orders
Cases in which restraint and charging orders may be made
27 (1) The powers conferred on the Supreme Court by section 28
to make a restraint order and by section 29 to make a charging order are
exercisable where—
PROCEEDS OF CRIME ACT 1997
26
(a) proceedings have been instituted against the defendant
for a drug trafficking or relevant offence or an
application has been made in respect of the defendant
under section 17, 18, 20 or 22;
(b) the proceedings have not, or the application has not
been concluded;
(c) the court is satisfied that there is reasonable cause to
believe
(i) in the case of an application under section 18 or
20 of this Act, that the court will be satisfied as
mentioned in section 18(3) or 20(2); or
(ii) in any other case, that the defendant has
benefited from drug trafficking or from any
relevant offence (as the case may be).
(2) The court shall not exercise those powers if it is satisfied
that there has been undue delay in continuing the proceedings or
application in question, or that it is not intended to proceed with the
prosecution.
(3) Those powers are also exercisable where the court is
satisfied—
(a) that a person is to be charged with a drug trafficking or
relevant offence or an application as mentioned in
subsection (1)(a) is to be made; and
(b) the court is satisfied as mentioned in subsection (1)(c).
(4) For the purposes of sections 28 and 29, at any time when
those powers are exercisable before proceedings have been instituted—
(a) references in this Act to the defendant shall be
construed as references to the person referred to in
subsection (3)(a); and
(b) references in this Act to realisable property shall be
construed as if, immediately before that time,
proceedings had been instituted against the person
referred to in subsection (2) for a drug trafficking or
relevant offence.
(5) Where the court has made a restraint or charging order by
virtue of subsection (3), the court shall discharge the order if proceedings
in respect of the offence are not instituted, or if the application is not
made, within such time as the court considers reasonable.
PROCEEDS OF CRIME ACT 1997
27
Restraint orders
28 (1) The court may make a restraint order to prohibit any
person from dealing with any realisable property, subject to such
conditions and exceptions as may be specified in the order.
(2) A restraint order may apply—
(a) to all realisable property held by a specified person,
whether the property is described in the order or not;
and
(b) to realisable property held by a specified person, being
property transferred to him after the making of the
order.
(3) This section shall not have effect in relation to any property
for the time being subject to a charge under section 29 of this Act or
under section 19 of the Drug Trafficking Suppression Act 1988.
(4) A restraint order—
(a) may be made only on an application by the Attorney-
General;
(b) may be made on an ex parte application to a Judge in
chambers; and
(c) shall provide for notice to be given to persons affected by
the order.
(5) A restraint order—
(a) may, on the application of any person affected by the
order, be discharged or varied in relation to any
property; and
(b) shall be discharged when proceedings for the offence are
concluded.
(6) Where the court has made a restraint order, the court—
(a) may at any time appoint a receiver—
(i) to take possession of any realisable property;
and
(ii) in accordance with the directions of the court, to
manage or otherwise deal with any property in
respect of which he is appointed,
subject to such exceptions and conditions as may be
specified by the court; and
PROCEEDS OF CRIME ACT 1997
28
(b) may require any person having possession of property in
respect of which the receiver is appointed under this
section to give possession of it to the receiver.
(7) For the purposes of this section, dealing with property held
by any person includes (without prejudice to the generality of the
expression)—
(a) where a debt is owed to that person, making a payment
to any person in reduction of the amount of the debt;
and
(b) removing the property from Bermuda.
(8) Where the court has made a restraint order, a police officer
may seize any realisable property for the purpose of preventing its
removal from Bermuda; and property so seized shall be dealt with in
accordance with the directions of the court.
Charging orders
29 (1) For the purposes of this Act, a charging order is an order
made under this section imposing on any such realisable property as
may be specified in the order a charge for securing the payment of
money to the Crown.
(2) The court may make a charging order on realisable property
for securing the payment to the Crown—
(a) where a confiscation order has been made, of an amount
not exceeding the amount payable under the
confiscation order; and
(b) where a confiscation order has not been made, of an
amount equal to the value from time to time of the
property charged.
(3) A charging order—
(a) may be made only on an application by the Attorney-
General; and
(b) may be made on an ex parte application to a Judge in
chambers.
(4) Subject to subsection (6), a charge may be imposed by a
charging order only on—
(a) any interest in realisable property, which is an interest
held beneficially by the defendant or by a person to
PROCEEDS OF CRIME ACT 1997
29
whom the defendant has directly or indirectly made a
gift caught by this Act—
(i) in any chargeable asset; or
(ii) under any trust; or
(b) any interest in realisable property held by a person as
trustee of a trust if the interest is in a chargeable asset
or is an interest under another trust and a charge may,
by virtue of paragraph (a), be imposed by a charging
order on the whole beneficial interest under the first-
mentioned trust.
(5) In this section
(a) "chargeable asset" means any of the following
(i) any land in Bermuda;
(ii) any relevant securities;
(iii) any motor vehicle;
(iv) any vessel;
(v) any aircraft;
(vi) any other type of asset which the Minister of
Finance may prescribe for the purposes of this
section; and
(b) "relevant securities" means any of the following
(i) securities of the government or of any public
authority;
(ii) stock of any body incorporated in Bermuda;
(iii) stock of any body incorporated outside Bermuda
or of any country or territory outside Bermuda,
being stock registered in a register kept at any
place within Bermuda;
(iv) options in relation to stock described in sub-
paragraphs (ii) or (iii);
(v) units of any unit trust in respect of which a
register of the unit holders is kept at any place
in Bermuda.
PROCEEDS OF CRIME ACT 1997
30
(6) In any case where a charge is imposed by a charging order
on any interest in any relevant securities, the court may provide for the
charge to extend to any interest or dividend payable in respect of them.
(7) Where the court has made a charging order, the court may
give such directions to such person as the court thinks fit to safeguard
the assets under the charging order.
(8) The court—
(a) may, on the application of any person affected by the
charging order, make an order discharging or varying it;
and
(b) shall make an order discharging the charging order if
the proceedings for the offence are concluded or on
payment into court of the amount which is secured by
the charge.
Charging orders: supplementary
30 (1) A charging order may be made either absolutely or subject
to conditions including in particular conditions—
(a) as to notifying any person holding any interest in the
property to which the order relates; or
(b) as to the time when the charge is to become enforceable.
(2) Notice of any charging order shall be deposited in the office
of the Registrar-General for recording and registration in accordance
with section 3 of the Registrar-General (Recording of Documents) Act
1955.
(3) Subject to any provision made under section 31, a charge
imposed by a charging order shall have the like effect and shall be
enforceable in the same manner as an equitable charge created by the
person holding the beneficial interest or, as the case may be, the trustees
by writing under their hand.
Realisation of property
Realisation of property
31 (1) The court may, on an application by the Attorney-General,
exercise the powers conferred by this section, where a confiscation order
has been made and it is neither satisfied nor subject to appeal.
(2) The court may appoint a receiver in respect of realisable
property.
PROCEEDS OF CRIME ACT 1997
31
(3) The court may empower the receiver appointed under this
section or section 28 or in pursuance of a charging order—
(a) to enforce any charge imposed under section 29 on
realisable property or on interest or dividends payable in
respect of such property; and
(b) in relation to any realisable property other than property
for the time being subject to a charge under section 29,
to take possession of the property subject to such
conditions or exceptions as may be specified by the
court.
(4) The court may order any person having possession of
realisable property to give possession of it to the receiver.
(5) The court may empower the receiver to realise any
realisable property in such manner as the court may direct.
(6) The court—
(a) may order any person holding an interest in realisable
property to make such payment to the receiver in
respect of any beneficial interest held by the defendant
or, as the case may be, the recipient of a gift caught by
this Act as the court may direct; and
(b) may, on the payment being made, by order transfer,
grant or extinguish any interest in the property.
(7) Subsections (4) to (6) shall not apply to property for the time
being subject to a charge under section 29 of this Act (or section 19 of
the Drug Trafficking Suppression Act 1988).
(8) The court shall not in respect of any property exercise the
powers conferred by subsection (3)(a), (5) or (6) unless a reasonable
opportunity has been given for persons holding any interest in the
property to make representations to the court.
Application of proceeds of realisation etc
32 (1) The following sums in the hands of the receiver pursuant to
section 28 or 31 or in pursuance of a charging order—
(a) the proceeds of the enforcement of any charge imposed
under section 29;
(b) the proceeds of the realisation, other than by the
enforcement of such a charge, of any property under
section 28 or 31; and
(c) any other sums, being property held by the defendant,
PROCEEDS OF CRIME ACT 1997
32
shall, after such payments (if any) as the court may direct have been
made out of those sums, be applied on the defendant's behalf towards
the satisfaction of the confiscation order.
(2) If, after the amount payable under the confiscation order
has been fully paid, any such sums remain in the hands of the receiver,
he shall distribute those sums—
(a) among such of those who held property which has been
realised under this Act; and
(b) in such proportions,
as the court may direct after giving a reasonable opportunity for such
persons to make representations to the court.
Exercise of powers for the realisation of property
33 (1) This section shall apply to the powers conferred on the
court by sections 28 to 32 or on the receiver pursuant to section 28 or 31
or in pursuance of a charging order.
(2) Subject to subsections (3) to (6), the powers shall be
exercised with a view to making available for satisfying the confiscation
order or (as the case may be) any confiscation order that may be made in
the defendant's case, the value for the time being of realisable property
held by any person by the realisation of such property.
(3) In the case of realisable property held by a person to whom
the defendant has, directly or indirectly, made a gift caught by this Act,
the powers shall be exercised with a view to realising no more than the
value for the time being of the gift.
(4) The powers shall be exercised with a view to allowing any
person other than the defendant or the recipient of any such gift to
retain or recover the value of any property held by him.
(5) In exercising those powers, no account shall be taken of any
obligations of the defendant or of the recipient of any such gift which
conflict with the obligation to satisfy the confiscation order.
(6) An order may be made or other action taken in respect of a
debt owed by the Crown.
Receivers: supplementary
34 (1) Where a receiver appointed under section 28 or 31 or in
pursuance of a charging order—
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33
(a) takes any action in relation to property which is not
realisable property, being action which he would be
entitled to take if it were such property, and
(b) believes and has reasonable grounds for believing, that
he is entitled to take that action in relation to that
property,
he shall not be liable to any person in respect of any loss or damage
resulting from his action, except in so far as the loss or damage is
caused by his negligence.
(2) Any amount due in respect of the remuneration and
expenses of a receiver so appointed shall be paid out of the Consolidated
Fund.
Insolvency
Bankruptcy of defendant
35 (1) Where a person who holds realisable property is adjudged
bankrupt—
(a) property for the time being subject to a restraint order
made before the order adjudging him bankrupt; and
(b) any proceeds of property realised by virtue of section
28(6) or 31(5) or (6) for the time being in the hands of a
receiver appointed under section 28 or 31,
shall be excluded from the bankrupt's estate for the purposes of the
Bankruptcy Act 1989 ("the 1989 Act").
(2) Where a person has been adjudged bankrupt, the powers
conferred on the court by sections 28 to 32 or on a receiver shall not be
exercised in relation to property for the time being comprised in the
property of the bankrupt for the purposes of the 1989 Act.
(3) Nothing in the 1989 Act shall be taken as restricting, or
enabling the restriction of, the exercise of those powers referred to in
subsection (2).
(4) Subsection (2) shall not affect the enforcement of a charging
order—
(a) made before the order adjudging the person bankrupt;
or
(b) on property which was subject to a restraint order when
the order adjudging him bankrupt was made.
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34
(5) Where, in the case of a debtor, the receiver constituted by
virtue of section 9 of the 1989 Act or an interim receiver stands
appointed under section 10 of the 1989 Act, and any property of the
debtor is subject to a restraint order—
(a) the powers conferred on the receiver by virtue of that Act
shall not apply to property for the time being subject to
the restraint order; and
(b) any such property in the hands of the receiver shall,
subject to a lien for any expenses (including his
remuneration) properly incurred in respect of the
property, be dealt with in such manner as the court may
direct.
(6) Where a person is adjudged bankrupt and has directly or
indirectly made a gift caught by this Act
(a) no order shall be made by virtue of section 33 or 45 of
the 1989 Act (avoidance of certain settlements etc) in
respect of the making of the gift at any time when
(i) proceedings for the drug trafficking or relevant
offence have been instituted against him and
have not been concluded;
(ii) an application has been made in respect of the
defendant under section 17, 18, 20 or 22 of this
Act and has not been concluded; or
(iii) property of the person to whom the gift was
made is subject to a restraint order or a
charging order; and
(b) any order made by virtue of section 33 or 45 of the 1989
Act after the conclusion of the proceedings shall take
into account any realisation under this Act of property
held by the person to whom the gift was made.
Winding up of company holding realisable property
36 (1) Where realisable property is held by a company and an
order for the winding up of the company has been made or a resolution
has been passed by the company for the voluntary winding up, the
functions of the liquidator shall not be exercisable in relation to—
(a) property for the time being subject to a restraint order
made before the relevant time; and
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35
(b) any proceeds of property realised by virtue of section
28(6) or 31(5) or (6) for the time being in the hands of a
receiver appointed under section 28 or 31,
but there shall be payable out of such property any expenses (including
the remuneration of the liquidator) properly incurred in the winding up
in respect of the property.
(2) Where, in the case of a company, such an order has been
made or such a resolution has been passed, the powers conferred on the
court by sections 28 to 32 or on a receiver so appointed shall not be
exercised in relation to any realisable property held by the company in
relation to which the functions of the liquidator are exercisable—
(a) so as to inhibit him from exercising those functions for
the purpose of distributing any property held by the
company to the company's creditors; or
(b) so as to prevent the payment out of any property of
expenses (including the remuneration of the liquidator)
properly incurred in the winding up in respect of the
property.
(3) Nothing in the Companies Act 1981 shall be taken as
restricting, or enabling the restriction of, the exercise of those powers
referred to in subsection (2).
(4) Subsection (2) shall not affect the enforcement of a charging
order made before the relevant time or on property which was subject to
a restraint order at the relevant time.
(5) In this section—
"company" means any company which may be wound up under
the Companies Act 1981;
"liquidator" includes any person appointed to the office of
liquidator (whether provisionally or otherwise) under the
Companies Act 1981;
"the relevant time" means—
(a) where no order for the winding up of the company has
been made, the time of the passing of the resolution for
voluntary winding up;
(b) where—
(i) such an order has been made; but
PROCEEDS OF CRIME ACT 1997
36
(ii) before the presentation of the petition for the
winding up of the company by court order, such
a resolution had been passed by the company,
the time of the passing of the resolution; and
(c) in any other case where such an order has been made,
the time of the making of the order.
PART IV
INFORMATION GATHERING POWERS
Production orders
37 (1) For the purpose of an investigation into
(a) drug trafficking,
(b) whether any person has benefited from criminal
conduct, or
(c) the whereabouts of any proceeds of criminal conduct,
a police officer may apply to the Supreme Court for an order under
subsection (2) (a "production order") in relation to particular material or
material of a particular description.
(2) The court may, if on such an application it is satisfied that
the conditions in subsection (4) are fulfilled, make a production order
requiring the person who appears to the court to be in possession of the
material to which the application relates—
(a) to produce it to a police officer for him to take away; or
(b) to give a police officer access to it,
within such period as the order may specify.
This subsection has effect subject to section 40(10).
(3) The period to be specified in a production order shall be
seven days unless it appears to the court that a longer or shorter period
would be appropriate in the particular circumstances of the application.
(4) The conditions referred to in subsection (2) are—
(a) that there are reasonable grounds for suspecting that a
specified person has carried on drug trafficking or has
benefited from criminal conduct;
PROCEEDS OF CRIME ACT 1997
37
(b) that there are reasonable grounds for suspecting that
the material to which the application relates—
(i) is likely to be of substantial value (whether by
itself or together with other material) to the
investigation for the purpose of which the
application is made; and
(ii) does not consist of or include items subject to
legal privilege; and
(c) that there are reasonable grounds for believing that it is
in the public interest, having regard—
(i) to the benefit likely to accrue to the investigation
if the material is obtained; and
(ii) to the circumstances under which the person in
possession of the material holds it,
that the material should be produced or that access to it
should be given.
(5) Where the court makes a production order under
subsection (2)(b) in relation to material on any premises, it may, on the
same or a subsequent application of a police officer, order any person
who appears to him to be entitled to grant entry to the premises to allow
a police officer to enter the premises to obtain access to the material.
(6) An application under subsection (1) or (5) may be made ex
parte to a judge in Chambers.
(7) Where the material, to which an application under this
section relates, consists of information contained in or accessible by
means of a computer—
(a) a production order under subsection (2)(a) shall have
effect as an order to produce the material in a form in
which it can be taken away and in which it is visible and
legible; and
(b) a production order under subsection (2)(b) shall have
effect as an order to give access to the material in a form
in which it is visible and legible.
(8) A production order—
(a) shall not confer any right to production of, or access to,
items subject to legal privilege;
PROCEEDS OF CRIME ACT 1997
38
(b) shall have effect notwithstanding any obligation as to
secrecy or other restriction upon the disclosure of
information imposed by statute or otherwise; and
(c) may be made in relation to material in the possession of
a Government Department.
(9) A police officer may photograph or make copies of any
material produced or to which access is given under this section.
(10) Rules of court may make provision as to
(a) the discharge and variation of production orders; and
(b) proceedings in relation to such orders.
(11) Where the investigation into whether a person has benefited
from criminal conduct or the whereabouts of the proceeds of criminal
conduct relates to a relevant offence which was not committed in
Bermuda, an application under subsection (1) shall not be made unless
the provisions of section 6 of the Criminal Justice (International Co-
operation) (Bermuda) Act 1994 (Bermudian evidence for use overseas) as
modified by subsection (12) have been complied with.
(12) Section 6 of the Criminal Justice (International Co-
operation) (Bermuda) Act 1994 shall apply for the purposes of this
section and section 39 with the following modifications
(a) in subsection (1), for the words "criminal proceedings" to
the end there shall be substituted "an investigation into
whether a person has benefited from a relevant offence
or the whereabouts of the proceeds of a relevant
offence.";
(b) in subsection (2)(a), for the words "an offence" there shall
be substituted "a relevant offence";
(c) for the words "by a notice" to the end of subsection (2)
there shall be substituted "authorise a police officer to
make an application for a production order under
section 37 of the Proceeds of Crime Act 1997 or for a
search warrant under section 39 of that Act.";
(d) at the end of subsection (5) there shall be added ", and
"relevant offence" has the meaning given in the Proceeds
of Crime Act 1997.";
(e) subsection (6) shall be omitted.
PROCEEDS OF CRIME ACT 1997
39
Failure to comply with production order
38 (1) Where a person is required by a production order to
produce any material to a police officer or give a police officer access to
any material, the person shall be guilty of an offence under this section if
he—
(a) contravenes the order without reasonable excuse; or
(b) in purported compliance with the order produces or
makes available any material known to the person to be
false or misleading in a material particular without—
(i) indicating to the police officer to whom the
material is produced or made available that the
material is false or misleading and the respect in
which the material is false or misleading; and
(ii) providing correct information to the police officer
if the person is in possession of, or can
reasonably acquire, the correct information.
(2) A person guilty of an offence under this section shall be
liable on summary conviction to imprisonment for two years or a fine of
$10,000 or both.
Search warrants
39 (1) For the purpose of an investigation into
(a) drug trafficking,
(b) whether any person has benefited from criminal
conduct, or
(c) the whereabouts of any proceeds of criminal conduct,
a police officer may apply to the Supreme Court for a warrant under this
section in relation to specified premises.
(2) On such an application, the court may issue a warrant
authorising a police officer to enter and search the premises if the court
is satisfied—
(a) that a production order made in relation to material on
the premises has not been complied with;
(b) that the conditions in subsection (3) are fulfilled; or
(c) that the conditions in subsection (4) are fulfilled.
(3) The conditions referred to in subsection (2)(b) are—
PROCEEDS OF CRIME ACT 1997
40
(a) that there are reasonable grounds for suspecting that a
specified person has carried on drug trafficking or has
benefited from criminal conduct;
(b) that the conditions in section 37(4)(b) and (c) are fulfilled
in relation to any material on the premises; and
(c) that it would not be appropriate to make an order under
that section in relation to the material because—
(i) it is not practicable to communicate with any
person entitled to produce the material;
(ii) it is not practicable to communicate with any
person entitled to grant access to the material or
entitled to grant entry to the premises on which
the material is situated; or
(iii) the investigation for the purposes of which the
application is made might be seriously
prejudiced unless a police officer could secure
immediate access to the material.
(4) The conditions referred to in subsection (2)(c) are
(a) that there are reasonable grounds for suspecting that a
specified person has carried on drug trafficking or has
benefited from criminal conduct;
(b) that there are reasonable grounds for suspecting that
there is on the premises any such material relating
(i) to the specified person;
(ii) to drug trafficking;
(iii) to the question whether that person has
benefited from criminal conduct; or
(iv) to any question as to the extent or whereabouts
of any proceeds of criminal conduct,
as is likely to be of substantial value (whether by itself or
together with other material) to the investigation for the
purpose of which the application is made, but that the
material cannot at the time of the application be
particularised; and
(c) that—
(i) it is not practicable to communicate with any
person entitled to grant entry to the premises;
PROCEEDS OF CRIME ACT 1997
41
(ii) entry to the premises will not be granted unless
a warrant is produced; or
(iii) the investigation for the purposes of which the
application is made might be seriously
prejudiced unless a police officer arriving at the
premises could secure immediate entry to them.
(5) Where a police officer has entered premises in the execution
of a warrant issued under this section, he may seize and retain any
material, other than items subject to legal privilege, which is likely to be
of substantial value (whether by itself or together with other material) to
the investigation for the purpose of which the warrant was issued.
(6) A police officer may photograph or make copies of any
material seized under this section.
(7) A person who hinders or obstructs a police officer in the
execution of a warrant issued under this section is guilty of an offence
and liable on summary conviction to imprisonment for two years or a
fine of $10,000 or both.
(8) Where the investigation into whether a person has benefited
from criminal conduct or the whereabouts of the proceeds of criminal
conduct relates to a relevant offence which was not committed in
Bermuda, an application under subsection (1) shall not be made unless
the provisions of section 6 of the Criminal Justice (International Co-
operation) (Bermuda) Act 1994 (Bermudian evidence for use overseas) as
modified by section 37(12) have been complied with.
Disclosure of information by Government Departments
40 (1) Subject to subsection (4), the Supreme Court may, on an
application by the Attorney-General, order any material mentioned in
subsection (3) which is in the possession of a Government Department to
be produced to the court within such period as the court may specify.
(2) The power to make an order under subsection (1) is
exercisable if—
(a) the powers conferred on the court to make a restraint
order or a charging order are exercisable by virtue of
section 27(1); or
(b) those powers are exercisable by virtue of section 27(3)
and the court has made a restraint or charging order
which has not been discharged,
but where the power to make an order under subsection (1) is
exercisable by virtue only of paragraph (b), section 27(4) shall apply for
PROCEEDS OF CRIME ACT 1997
42
the purposes of this section as it applies for the purposes of sections 28
and 29.
(3) The material referred to in subsection (1) is any material
which—
(a) has been submitted to an officer of a Government
Department by the defendant or by a person who has at
any time held property which was realisable property;
(b) has been made by an officer of a Government
Department in relation to the defendant or such a
person; or
(c) is correspondence which passed between an officer of a
Government Department and the defendant or such a
person,
and an order under that subsection may require the production of all
such material, or of a particular description of such material, in the
possession of the body concerned.
(4) An order under subsection (1) shall not require the
production of any material unless it appears to the court that the
material is likely to contain information that would facilitate the exercise
of the powers conferred on the court by section 28, 29 or 31 or on a
receiver appointed under section 28 or 31 or in pursuance of a charging
order.
(5) The court may by order authorise the disclosure to such a
receiver of any material produced under subsection (1) or any part of
such material; but the court shall not make an order under this
subsection unless a reasonable opportunity has been given for an officer
of the Government Department to make representations to the court.
(6) Material disclosed in pursuance of an order under
subsection (5) may, subject to any conditions contained in the order, be
further disclosed for the purposes of the functions under this Act of the
receiver or the court.
(7) The court may by order authorise the disclosure to a police
officer of any material produced under subsection (1) or any part of such
material; but the court shall not make an order under this subsection
unless—
(a) a reasonable opportunity has been given for an officer of
the Government Department to make representations to
the court; and
PROCEEDS OF CRIME ACT 1997
43
(b) it appears to the court that the material is likely to be of
substantial value in exercising functions relating to
criminal conduct.
(8) Material disclosed in pursuance of an order under
subsection (7) may, subject to any conditions contained in the order, be
further disclosed for the purposes of functions relating to criminal
conduct.
(9) Material may be produced or disclosed in pursuance of this
section notwithstanding any obligation as to secrecy or other restriction
upon the disclosure of information imposed by statute or otherwise.
(10) An order under subsection (1) and, in the case of material
in the possession of a Government Department, a production order, may
require any officer of the Government Department (whether named in the
order or not) who may for the time being be in possession of the material
concerned to comply with it, and such an order shall be served as if the
proceedings were civil proceedings against the department.
(11) For the purposes of this section, "Government Department"
includes
(a) the Bermuda Monetary Authority;
(b) such other bodies as the Minister responsible for the Police
may prescribe for the purposes of this section.
Monitoring orders
41 (1) A police officer may apply to the Supreme Court for an order
("a monitoring order") directing a banking institution to give to a police
officer information obtained by the institution about transactions
conducted through an account held by a particular person with the
institution.
(2) An application for a monitoring order shall be made ex
parte to a judge in Chambers and shall be supported by affidavit.
(3) A monitoring order shall apply in relation to transactions
conducted during the period specified in the order, commencing not
earlier than the day on which notice of the order is given to the banking
institution and ending not later than three months after the day on
which the order is made.
(4) A monitoring order shall not be made unless the court is
satisfied that there are reasonable grounds for suspecting that the
person in respect of whom the information is sought
(a) has committed or is about to commit a drug trafficking
offence or a relevant offence;
PROCEEDS OF CRIME ACT 1997
44
(b) was involved in the commission, or is about to be
involved in the commission, of such an offence; or
(c) has benefited directly or indirectly or is about to benefit
directly or indirectly from the commission of such an
offence.
(5) A monitoring order shall specify
(a) the name or names in which the account is believed to
be held;
(b) the nature of the information which the institution is
required to give; and
(c) the manner in which the information is to be given.
(6) A person who knowingly
(a) contravenes a monitoring order; or
(b) provides false or misleading information in purported
compliance with the order,
shall be guilty of an offence and liable on summary conviction to
imprisonment for two years or a fine of $10,000 or both.
(7) A reference in this section to a transaction conducted
through an account includes a reference
(a) to the making of a fixed term deposit;
(b) to the transfer of an amount so deposited or any part of
it at the end of the term; and
(c) to the existence or use of a deposit box held by the
institution.
(8) The provision of information to a police officer by virtue of a
monitoring order shall not be treated as a breach of any restriction upon
the disclosure of information imposed by statute or otherwise and shall
not give rise to any civil liability.
(9) In this section "banking institution" includes
(a) any bank licensed under the Banks Act 1969;
(b) any deposit company licensed under the Deposit
Companies Act 1974; and
(c) such other institutions as the Minister of Finance may
prescribe for the purposes of this section.
PROCEEDS OF CRIME ACT 1997
45
Offence of prejudicing investigation
42 (1) Where in relation to an investigation into criminal
conduct
(a) a production order has been made, or has been applied
for and has not been refused;
(b) a warrant under section 39 has been issued; or
(c) a monitoring order has been made,
a person is guilty of an offence if, knowing or suspecting that the
investigation is taking place, he makes any disclosure which is likely to
prejudice the investigation or reveal the existence of the monitoring
order.
(2) In proceedings against a person for an offence under this
section, it is a defence to prove—
(a) that he did not know or suspect that the disclosure was
likely to prejudice the investigation or reveal the
existence of the monitoring order; or
(b) that he had lawful authority or reasonable excuse for
making the disclosure.
(3) Nothing in subsection (1) makes it an offence for a
professional legal adviser to disclose any information or other matter—
(a) to, or to a representative of, a client of his in connection
with the giving by the legal adviser of legal advice to the
client; or
(b) to any person—
(i) in contemplation of, or in connection with, legal
proceedings; and
(ii) for the purpose of those proceedings;
but this subsection does not apply in relation to any information or other
matter which is disclosed with a view to furthering any criminal purpose.
(4) A person who commits an offence under this section shall
be liable—
(a) on summary conviction to imprisonment for two years or
a fine of $5,000 or both; and
(b) on conviction on indictment to imprisonment for five
years or a fine of $10,000 or both.
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46
PART V
MONEY LAUNDERING
Offences
Concealing or transferring proceeds of criminal conduct
43 (1) A person is guilty of an offence if he—
(a) conceals or disguises any property which is, or in whole
or in part directly or indirectly represents, his proceeds
of criminal conduct, or
(b) converts or transfers that property or removes it from
Bermuda;
for the purpose of avoiding prosecution for a drug trafficking or relevant
offence or the making or enforcement in his case of a confiscation order.
(2) A person is guilty of an offence if, knowing or having
reasonable grounds to suspect that any property is, or in whole or in
part directly or indirectly represents, another person's proceeds of
criminal conduct, he—
(a) conceals or disguises that property, or
(b) converts or transfers that property or removes it from
Bermuda;
for the purpose of assisting any person to avoid prosecution for a drug
trafficking or relevant offence or the making or enforcement of a
confiscation order.
(3) In this section the references to concealing or disguising
any property include references to concealing or disguising its nature,
source, location, disposition, movement or ownership or any rights with
respect to it.
Assisting another to retain proceeds of criminal conduct
44 (1) Subject to subsection (3), a person is guilty of an offence if
he enters into or is otherwise concerned in an arrangement whereby—
(a) the retention or control by or on behalf of another
person ("A") of A's proceeds of criminal conduct is
facilitated (whether by concealment, removal from the
jurisdiction, transfer to nominees or otherwise); or
(b) A's proceeds of criminal conduct—
PROCEEDS OF CRIME ACT 1997
47
(i) are used to secure that funds are placed at A's
disposal; or
(ii) are used for A's benefit to acquire property by
way of investment,
and he knows or suspects that A is a person who is or has been engaged
in or has benefited from criminal conduct.
(2) In this section, references to any person's proceeds of
criminal conduct include a reference to any property which in whole or in
part directly or indirectly represented in his hands his proceeds of
criminal conduct.
(3) Where a person discloses in good faith to a police officer a
suspicion or belief that any funds or investments are derived from or
used in connection with criminal conduct, or any matter on which such
a suspicion or belief is based—
(a) the disclosure shall not be treated as a breach of any
restriction upon the disclosure of information imposed
by statute or otherwise and shall not give rise to any civil
liability; and
(b) if he does any act in contravention of subsection (1) and
the disclosure relates to the arrangement concerned, he
does not commit an offence under this section if—
(i) the disclosure is made before he does the act
concerned and the act is done with the consent
of the police officer; or
(ii) the disclosure is made after he does the act, but
is made on his initiative and as soon as it is
reasonable for him to make it.
(4) In proceedings against a person for an offence under this
section, it is a defence to prove—
(a) that he did not know or suspect that the arrangement
related to any person's proceeds of criminal conduct;
(b) that he did not know or suspect that by the arrangement
the retention or control by or on behalf of A of any
property was facilitated or, as the case may be, that by
the arrangement any property was used as mentioned in
subsection (1)(b); or
(c) that—
PROCEEDS OF CRIME ACT 1997
48
(i) he intended to disclose to a police officer such a
suspicion, belief or matter as is mentioned in
subsection (3) in relation to the arrangement,
but
(ii) there is reasonable excuse for his failure to
make any such disclosure in the manner
mentioned in subsection (3)(b).
(5) In the case of a person who was in employment at the time
in question, subsections (3) and (4) shall have effect in relation to
disclosures and intended disclosures to the appropriate person in
accordance with any procedure established by his employer for the
making of such disclosures as they have effect in relation to disclosures,
and intended disclosures, to a police officer.
Acquisition, possession or use of proceeds of criminal conduct
45 (1) A person is guilty of an offence if, knowing that any
property is, or in whole or in part directly or indirectly represents,
another person's proceeds of criminal conduct, he acquires or uses that
property or has possession of it.
(2) It is a defence to a charge of committing an offence under
this section that the person charged acquired or used the property or
had possession of it for adequate consideration.
(3) For the purposes of subsection (2)—
(a) a person does not acquire property for adequate
consideration if the value of the consideration is
significantly less than the value of the property; and
(b) a person does not use or have possession of property for
adequate consideration if the value of the consideration
is significantly less than the value of his use or
possession of the property.
(4) The provision for any person of services or goods which are
of assistance to him in criminal conduct shall not be treated as
consideration for the purposes of subsection (2).
(5) Where a person discloses in good faith to a police officer a
belief that any property is, or in whole or in part directly or indirectly
represents, another person's proceeds of criminal conduct, or any matter
on which such a belief is based—
(a) the disclosure shall not be treated as a breach of any
restriction upon the disclosure of information imposed
PROCEEDS OF CRIME ACT 1997
49
by statute or otherwise and shall not give rise to any civil
liability; and
(b) if he does any act in relation to the property in
contravention of subsection (1), he does not commit an
offence under this section if—
(i) the disclosure is made before he does the act in
question and the act is done with the consent of
the police officer; or
(ii) the disclosure is made after he does the act, but
is made on his initiative and as soon as it is
reasonable for him to make it.
(6) For the purposes of this section, having possession of any
property shall be taken to be doing an act in relation to it.
(7) In proceedings against a person for an offence under this
section, it is a defence to prove that—
(a) he intended to disclose to a police officer such a belief or
matter as is mentioned in subsection (5), but
(b) there is reasonable excuse for his failure to make any
such disclosure in the manner mentioned in subsection
(5)(b).
(8) In the case of a person who was in employment at the time
in question, subsections (5) and (7) shall have effect in relation to
disclosures, and intended disclosures, to the appropriate person in
accordance with any procedure established by his employer as they have
effect in relation to disclosures, and intended disclosures, to a police
officer.
(9) No police officer or other person shall be guilty of an offence
under this section in respect of anything done by him in the course of
acting in connection with the enforcement, or intended enforcement, of
any provision of this Act or of any other statutory provision relating to
drug trafficking or relevant offences or the proceeds of criminal conduct.
Disclosure of knowledge or suspicion of money laundering
46 (1) Where a person in good faith discloses to a police officer—
(a) his suspicion or belief that another person is engaged in
money laundering, or
(b) any information or other matter on which that suspicion
or belief is based,
PROCEEDS OF CRIME ACT 1997
50
the disclosure shall not be treated as a breach of any restriction upon
the disclosure of information imposed by statute or otherwise and shall
not give rise to any civil liability.
(2) A person is guilty of an offence if—
(a) he knows or suspects that another person is engaged in
money laundering which relates to any proceeds of drug
trafficking;
(b) the information, or other matter, on which that
knowledge or suspicion is based came to his attention in
the course of his trade, profession, business or
employment; and
(c) he does not disclose the information or other matter to a
police officer as soon as is reasonably practicable after it
comes to his attention.
(3) Subsection (2) does not make it an offence for a professional
legal adviser to fail to disclose any information or other matter which has
come to him in privileged circumstances.
(4) It is a defence to a charge of committing an offence under
this section that the person charged had a reasonable excuse for not
disclosing the information or other matter in question.
(5) Any disclosure made by a person who was in employment
at the time in question to the appropriate person in accordance with any
procedure established by his employer shall be treated, for the purposes
of this section, as a disclosure to a police officer.
(6) For the purposes of this section, any information or other
matter comes to a professional legal adviser in privileged circumstances
if it is communicated or given to him—
(a) by, or by a representative of, a client of his in connection
with the giving by the adviser of legal advice to the client;
(b) by, or by a representative of, a person seeking legal
advice from the adviser; or
(c) by any person—
(i) in contemplation of, or in connection with, legal
proceedings; and
(ii) for the purpose of those proceedings;
but no information or other matter shall be treated as coming to a
professional legal adviser in privileged circumstances if it is
communicated or given with a view to furthering any criminal purpose.
PROCEEDS OF CRIME ACT 1997
51
Tipping-off
47 (1) A person is guilty of an offence if—
(a) he knows or suspects that a police officer is acting, or is
proposing to act, in connection with an investigation
which is being, or is about to be, conducted into money
laundering; and
(b) he discloses to any other person information or any
other matter which is likely to prejudice that
investigation or proposed investigation.
(2) A person is guilty of an offence if—
(a) he knows or suspects that a disclosure has been made
to a police officer or to an appropriate person under
section 44, 45 or 46; and
(b) he discloses to any other person information or any
other matter which is likely to prejudice any
investigation which might be conducted following such a
disclosure.
(3) Nothing in subsection (1) or (2) makes it an offence for a
professional legal adviser to disclose any information or other matter—
(a) to, or to a representative of, a client of his in connection
with the giving by the adviser of legal advice to the client;
or
(b) to any person—
(i) in contemplation of, or in connection with, legal
proceedings; and
(ii) for the purpose of those proceedings;
but this subsection does not apply in relation to any information or other
matter which is disclosed with a view to furthering any criminal purpose.
(4) In proceedings against a person for an offence under
subsection (1) or (2), it is a defence to prove that he did not know or
suspect that the disclosure was likely to be prejudicial in the way there
mentioned.
(5) No police officer or other person shall be guilty of an offence
under this section in respect of anything done by him in the course of
acting in accordance with the enforcement, or intended enforcement, of
any provision of this Act or of any other statutory provision relating to
criminal conduct or the proceeds of criminal conduct.
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52
Penalties
Penalties for money laundering etc
48 (1) A person guilty of an offence under section 43, 44 or 45
(money laundering) shall be liable—
(a) on summary conviction, to imprisonment for five years
or a fine of $50,000 or both; and
(b) on conviction on indictment, to imprisonment for twenty
years or an unlimited fine or both.
(2) A person guilty of an offence under section 46 or 47 (failure
to disclose knowledge or suspicion; tipping off) shall be liable—
(a) on summary conviction, to imprisonment for three years
or a fine of $15,000 or both; or
(b) on conviction on indictment, to imprisonment for ten
years or an unlimited fine or both.
Prevention of money laundering
Establishment of Committee; regulations etc
49 (1) There shall be established a committee, to be known as the
National Anti-Money Laundering Committee, for the purpose of
(a) advising the Minister of Finance in relation to the
detection and prevention of money laundering in
Bermuda;
(b) issuing from time to time guidance as to compliance with
this Act and regulations made under this Act;
(c) advising the Minister of Finance as to the participation
of Bermuda in the international effort against money
laundering;
and the Committee shall meet as often as may be necessary to carry out
its duties.
(2) The members of the National Anti-Money Laundering
Committee shall be
(a) the Financial Secretary (who shall be Chairman),
(b) the Attorney-General,
(c) the Permanent Secretary of the Ministry responsible for
the Police,
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53
(d) the Commissioner of Police,
(e) the General Manager of the Bermuda Monetary
Authority,
(f) such other persons as the Minister of Finance may from
time to time appoint;
and the Committee may appoint a sub-committee, including such
representatives of the financial and business sector in Bermuda as it
thinks appropriate, to assist in formulating the guidance mentioned in
subsection (1)(b).
(3) The Minister of Finance may, after consulting the National
Anti-Money Laundering Committee, make such regulations as he thinks
fit for the purposes of detecting and preventing money laundering.
(4) Without prejudice to the generality of subsection (3), such
regulations may in particular
(a) require such financial and other institutions as may be
prescribed to establish and maintain procedures relating
to the identification of clients, the keeping of records, the
making of reports and training;
(b) create criminal offences of failing to comply with the
regulations; and
(c) provide that in determining whether a person has
complied with the regulations the trial court may take
account of any current relevant guidance issued by the
National Anti-Money Laundering Committee.
PART VI
SEIZURE OF CASH
Seizure and detention of cash imported or exported
50 (1) A police officer may seize and detain, in accordance with
this Part, any cash which is being imported into or exported from
Bermuda if the officer has reasonable grounds for suspecting that it
directly or indirectly represents any person's proceeds of criminal
conduct or is intended by any person for use in any criminal conduct.
(2) Cash seized by virtue of this section shall not be detained
for more than forty-eight hours unless its continued detention is
authorised by an order made by a magistrate; and no such order shall be
made unless the magistrate is satisfied—
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54
(a) that there are reasonable grounds for the suspicion
mentioned in subsection (1); and
(b) that continued detention of the cash is justified while its
origin or derivation is further investigated or
consideration is given to the institution (whether in
Bermuda or elsewhere) of criminal proceedings against
any person for an offence with which the cash is
connected.
(3) Any order under subsection (2) shall authorise the
continued detention of the cash to which it relates for such period, not
exceeding three months beginning with the date of the order, as may be
specified in the order; and a court of summary jurisdiction, if satisfied as
to the matters mentioned in that subsection, may thereafter from time to
time by order authorise the further detention of the cash but so that—
(a) no period of detention specified in such an order shall
exceed three months beginning with the date of the
order; and
(b) the total period of detention shall not exceed two years
from the date of the order under subsection (2).
(4) Any application for an order under subsection (2) or (3)
shall be made by a police officer.
(5) At any time while cash is detained by virtue of this section—
(a) a court of summary jurisdiction may direct its release if
satisfied—
(i) on an application made by the person from
whom it was seized or a person by or on whose
behalf it was being imported or exported, that
there are no, or are no longer, any such grounds
for its detention as are mentioned in subsection
(2); or
(ii) on an application made by any other person,
that detention of the cash is not for that or any
other reason justified; and
(b) a police officer may release the cash if satisfied that its
detention is no longer justified but shall first notify the
magistrate or court of summary jurisdiction under
whose order it is being detained.
(6) If at a time when any cash is being detained by virtue of
this section—
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(a) an application for its forfeiture is made under section 51
or
(b) proceedings are instituted (whether in Bermuda or
elsewhere) against any person for an offence with which
the cash is connected,
the cash shall not be released until any proceedings pursuant to the
application or, as the case may be, the proceedings for that offence have
been concluded.
Forfeiture orders and appeals
51 (1) A court of summary jurisdiction may make an order (a
"forfeiture order") ordering the forfeiture of any cash which has been
seized under section 50 if satisfied, on an application made by a police
officer while the cash is detained under that section, that the cash
directly or indirectly represents any person's proceeds of, or benefit from,
or is intended by any person for use in, criminal conduct.
(2) An order may be made under subsection (1) whether or not
proceedings are brought against any person for an offence with which
the cash in question is connected.
(3) Any party to the proceedings in which a forfeiture order is
made (other than the applicant) may, before the end of the period of
thirty days beginning with the date on which it is made, appeal to the
Supreme Court.
(4) On an application made by an appellant to a court of
summary jurisdiction at any time, that court may order the release of so
much of the cash to which the forfeiture order relates as it considers
appropriate to enable him to meet his legal expenses in connection with
the appeal.
(5) An appeal under this section shall be by way of rehearing,
and the Supreme Court may make such order as it considers appropriate
and, in particular, may order the release of the cash (or any remaining
cash) together with any accrued interest.
Seizure: supplementary
52 (1) Cash consisting of coins and bank-notes seized under this
Part and detained for more than forty-eight hours shall where
practicable, unless required as evidence of an offence, be held in an
interest-bearing account, and the interest accruing on any such cash
shall be added to that cash on its forfeiture or release.
(2) An order under section 50(2) shall provide for notice to be
given to persons affected by the order.
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(3) Without prejudice to the generality of any existing power to
make rules, provision may be made by rules of court
(a) with respect to applications to any court under this Part;
(b) for the giving of notice of such applications to persons
affected;
(c) for the joinder of persons as parties; and
(d) generally with respect to the procedure under this Part
before any court.
(4) In this Part—
"cash" means
(a) coins and bank-notes in any currency; and
(b) negotiable instruments;
"exported", in relation to any cash, includes its being brought to
any place in Bermuda for the purpose of being exported.
PART VII
MISCELLANEOUS & SUPPLEMENTAL
Foreign orders etc
Enforcement of external confiscation orders
53 (1) The Minister responsible for the Police may, by order
(a) direct in relation to a country or territory outside
Bermuda designated by the order (a "designated
country") that, subject to such modifications as may be
specified, this Act shall apply to external confiscation
orders and to proceedings which have been or are to be
instituted in the designated country and may result in
an external confiscation order being made there;
(b) make—
(i) such provision in connection with the taking of
action in the designated country with a view to
satisfying a confiscation order;
(ii) such provision as to evidence or proof of any
matter for the purposes of this section and
section 54; and
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(iii) such incidental, consequential and transitional
provision,
as appears to him to be expedient; and
(c) without prejudice to the generality of this subsection,
direct that, in such circumstances as may be specified,
proceeds arising out of action taken in the designated
country with a view to satisfying a confiscation order and
which are retained there shall nevertheless be treated as
reducing the amount payable under the order to such
extent as may be specified.
(2) An order under this section may make different provision
for different cases or classes of cases.
(3) The power to make an order under this section includes
power to modify this Act in such a way as to confer power on a person to
exercise a discretion.
(4) In this section and section 54—
"external confiscation order" means an order made by a court in
a designated country for the purpose
(a) of recovering property, or the value of such property,
obtained as a result of or in connection with
(i) drug trafficking; or
(ii) any offence which would, if committed in Bermuda,
be triable on indictment; or
(b) of depriving a person of a pecuniary advantage so
obtained;
"modifications" includes additions, alterations and omissions.
(5) An order under this section is subject to the negative
resolution procedure.
Registration of external confiscation orders
54 (1) On an application made by or on behalf of the government
of a designated country, the Supreme Court may register an external
confiscation order made there if—
(a) it is satisfied that at the time of registration the order is
in force and not subject to appeal;
(b) it is satisfied, where the person affected by the order did
not appear in the proceedings, that he received notice of
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58
the proceedings in sufficient time to enable him to
defend them; and
(c) it is of the opinion that enforcing the order in Bermuda
would not be contrary to the interests of justice.
(2) In subsection (1)(a), "appeal" includes—
(a) any proceedings by way of discharging or setting aside a
judgment; and
(b) an application for a new trial or a stay of execution.
(3) The court shall cancel the registration of an external
confiscation order if it appears to the court that the order has been
satisfied by payment of the amount due under it.
Evidence of corresponding law
55 (1) A document purporting to be issued by or on behalf of the
Government of a country or territory and purporting to state the terms of
a corresponding law in force in that country or territory shall be admitted
in evidence, in proceedings under this Act, on its production by the
prosecution without further proof, and such document shall be
conclusive evidence that—
(a) it is issued by or on behalf of the Government of that
country or territory;
(b) the terms of such law are as stated in the document;
(c) any facts stated in the document to constitute an offence
under such law do constitute such offence.
(2) "Corresponding law"
(a) in relation to proceedings relating to drug trafficking has
the meaning given in section 40 of the Misuse of Drugs
Act 1972; and
(b) in any other case, means a law which corresponds with
a provision of Bermuda law which creates a relevant
offence.
Offences and police powers etc
Offences by bodies corporate
56 Where a body corporate is guilty of an offence under this Act and
that offence is proved to have been committed with the consent or
connivance of any director, manager, secretary or other similar officer of
the body corporate or any person who was purporting to act in any such
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capacity, he, as well as the body corporate, shall be guilty of that offence
and shall be liable to be proceeded against and punished accordingly.
Police powers etc
57 (1) For the purposes of this Act, "police officer" includes any
officer of the Customs Department.
(2) A police officer may arrest without warrant any person
whom he reasonably believes has committed an offence under this Act.
(3) An officer of the Customs Department may, in any case
relating to the commission of an offence under this Act, exercise all or
any of the powers in relation to investigations into an offence which is
arrestable without warrant conferred on a police officer by the Criminal
Code Act 1907.
Police officers: duty of confidentiality
58 (1) Except for the purpose of the performance of his duties or the
exercise of his functions or when lawfully required to do so by any court
or under the provisions of any enactment, no police officer shall disclose
any information or matter which has been obtained by him in the
performance of his duties or the exercise of his functions under this Act.
(2) Any person who contravenes this section shall be guilty of
an offence and shall be liable on summary conviction to imprisonment
for one year or a fine of $2,000 or both.
Procedure
Jurisdiction
59 Where a defendant is charged with a drug trafficking or relevant
offence which may be tried summarily or on indictment
(a) the power of the Attorney-General to issue a certificate
under section 450 of the Criminal Code Act 1907
requiring an offence to be tried on indictment may be
exercised where the Attorney-General intends to make
an application for a confiscation order if the defendant is
convicted; and
(b) the power of a court of summary jurisdiction to commit
the defendant to the Supreme Court for sentencing
under section 25(1) of the Summary Jurisdiction Act
1930 may be exercised where the court of summary
jurisdiction is of the opinion that the defendant is one
against whom the Supreme Court may consider making
a confiscation order.
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Compensation
60 (1) If an investigation is begun against a person for a drug
trafficking or relevant offence or offences and any of the following
circumstances occur—
(a) no proceedings are instituted against that person;
(b) proceedings are instituted against that person but do
not result in his conviction for any drug trafficking or
relevant offence; or
(c) proceedings are instituted against that person and he is
convicted of one or more drug trafficking or relevant
offences, but
(i) the conviction or convictions concerned are
quashed; or
(ii) he is granted a pardon in respect of the
conviction or convictions concerned,
the Supreme Court may, on application by a person who held property
which was realisable property, order compensation to be paid to the
applicant if, having regard to all the circumstances, it considers it
appropriate to make such an order.
(2) The court shall not order compensation to be paid unless it
is satisfied—
(a) that there has been some serious default on the part of
any person concerned in the investigation or prosecution
of the offence or offences concerned; and
(b) that the applicant has suffered loss in consequence of
anything done in relation to the property by, or in
pursuance of a restraint order or a charging order.
(3) The court shall not order compensation to be paid in any
case where it appears to the court that the investigation would have been
continued, or the proceedings would have been instituted or continued,
as the case may be, if the serious default had not occurred.
(4) Without prejudice to subsection (1), where
(a) a disclosure is made by any person in accordance with
section 44(3) or 44(5) in relation to any property;
(b) in consequence of the disclosure and for the purposes of
an investigation or prosecution in respect of a drug
trafficking offence or offences any act is done or omitted
to be done in relation to that property; and
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61
(c) no proceedings are instituted against any person in
respect of that offence or offences or no restraint order or
charging order is made in relation to that property,
the court may, on application by a person who held the property, order
compensation to be paid to the applicant if, having regard to all the
circumstances, it considers it appropriate to make such an order.
(5) The court shall not order compensation to be paid under
subsection (4) unless it is satisfied—
(a) that there has been some serious default on the part of
any person concerned in the investigation or prosecution
of the offence or offences concerned and that, but for
that default, the act or omission referred to in subsection
(4)(b) would not have occurred; and
(b) the applicant has, in consequence of the act or omission
referred to in subsection (4)(b), suffered loss in relation
to the property.
(6) The amount of compensation to be paid under this section
shall be such as the court thinks just in all the circumstances of the
case.
(7) Compensation ordered to be paid under this section and
sections 23 and 24 shall be paid out of the Consolidated Fund.
Costs
61 (1) Where—
(a) a person brings, or appears at, court proceedings under
this Act and endeavours—
(i) to prevent a confiscation order or a restraint
order or a charging order from being made
against property of his; or
(ii) to have property of his excluded from such an
order; and
(b) that person is successful in that endeavour; and
(c) the court is satisfied that he was not in any way involved
in criminal conduct,
then the court may by order declare that he is entitled to be paid all
reasonable costs incurred by him in connection with those proceedings,
or such part of those costs as the court determines.
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(2) The costs referred to in subsection (1) are not limited to
costs of a kind that are normally recoverable by a successful party in
civil proceedings.
(3) Costs payable by virtue of a declaration made by the court
under subsection (1) shall be paid out of the Consolidated Fund.
Civil standard of proof
62 Any question of fact to be decided by a court in proceedings
under this Act, except any question of fact that is for the prosecution to
prove in any proceedings for an offence under this Act, shall be decided
on the balance of probabilities.
Appeals
63 Any decision of a court in proceedings under this Act, except
proceedings in relation to any offence committed under this Act, is a
judgment of a court in a civil cause or matter within section 12(1) and (2)
of the Court of Appeal Act 1964 or, as the case may be, section 2 of the
Civil Appeals Act 1971.
Supplemental
Index of defined expressions
64 In this Act the expressions listed below are defined by, or
otherwise fall to be construed in accordance with, the provisions of this
Act listed below
amount that might be realised section 4(4)
amount to be recovered section 15
benefited from
drug trafficking section 9(3)
relevant offence section 10(3)
charging order section 29
conclusion of application section 8(1)
conclusion of proceedings section 8(1)
confiscation order section 7
corresponding law section 55
the court section 7
defendant section 7
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63
chargeable asset section 29(5)
criminal conduct section 3
drug trafficking section 3
drug trafficking arrangement section 3
drug trafficking offence section 3
external confiscation order section 53
gift caught by this Act section 6
held (in relation to property) section 4(2)
institution of proceedings section 8(1)
interest (in relation to property) section 4(1)
items subject to legal privilege section 7
material section 7
money laundering section 7
monitoring order section 41
police officer section 57
premises section 7
prescribed section 7
proceeds of drug trafficking section 12(1)(a)
production order section 37
property section 4(1), (2)
prosecutor's statement section 13(4)
realisable property section 4(3)
relevant offence section 3 and Schedule
restraint order section 28
subject to appeal section 8(2)
transferred (in relation to property) section 4(2)
value of gift section 5(2)
value of proceeds of drug trafficking section 12(1)(b)
value of property section 5(1)
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64
Regulations
65 (1) Regulations may be made for prescribing anything which is
required to be prescribed under this Act and generally for carrying out
the purposes and provisions of this Act
(a) by the Minister of Finance, in relation to Part V; and
(b) by the Minister responsible for the Police, in any other
case.
(2) Regulations made under this section shall be subject to the
negative resolution procedure.
Crown application
66 This Act binds the Crown, but not so as to make the Crown
capable of any criminal offence.
Repeals
67 The following enactments (which are superseded by this Act) are
repealed
The Drug Trafficking
Suppression Act 1988
The whole Act
The Trust Companies Act
1991
Section 17(2)(a) and (3)
The Criminal Justice
(International Co-operation)
(Bermuda) Act 1994
Sections 14 and 15
Section 21(2)
Sections 22 to 26
Section 28(2)
In Schedule 4, the entry
relating to the Drug
Trafficking Suppression Act
1988.
Transitional provision
68 The repeal by this Act of the enactments mentioned in section 67
shall not affect their continuing operation in relation to orders made
thereunder.
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Consequential amendments
69 In the Criminal Justice (International Co-operation) (Bermuda)
Act 1994
(a) in section 9(6), for the words "or would be a drug offence
as defined by section 6 of the Drug Trafficking
Suppression Act 1988" there shall be substituted "or
would be a drug trafficking offence as defined by section
3 of the Proceeds of Crime Act 1997";
(b) in section 13(6), for the words "the Drug Trafficking
Suppression Act 1988" there shall be substituted "the
Proceeds of Crime Act 1997"; and
(c) in section 16, for the words "drug offence" there shall be
substituted "drug trafficking offence within the meaning
of the Proceeds of Crime Act 1997".
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SCHEDULE (section 3)
RELEVANT OFFENCES
1 (1) An offence under any of the following provisions of the
Criminal Code Act 1907 which may be tried on indictment
Part VI (treason, mutiny and sedition)
sections 154 to 156 (keeping brothel or gaming house)
Part VIII (piracy and hijacking)
Part IX (counterfeiting etc)
Part X (offences against morality)
Part XIII (use and possession of explosives)
Part XVI (homicide)
Part XIX (stealing, extortion, burglary etc)
Part XX (obtaining property by false pretences etc)
Part XXI (corruption, fraud, false accounting etc)
Part XXII (forgery)
(2) An offence under the Armaments (Control) Act 1964 (arms
dealing etc).
(3) An offence under the Suppression of Terrorism Act 1978
(UK), as extended to Bermuda by the Suppression of Terrorism Act 1978
(Overseas Territories) Order 1986 (UK).
(4) An offence under section 43, 44 or 45 of this Act (money
laundering).
(5) An offence under section 32, 33, 230 or 231 of the Criminal
Code Act 1907 (attempt, incitement, conspiracy etc) deriving from any of
the offences mentioned in this paragraph.
2 The Minister responsible for the Police may by order made
subject to the negative resolution procedure amend paragraph 1 so as to
add any offence which may be tried on indictment.
