Anti-Terrorism (Financial and Other Measures) Act 2004
ANTI-TERRORISM (FINANCIAL AND OTHER MEASURES) ACT
2004
1
BERMUDA
2004 : 31
ANTI-TERRORISM (FINANCIAL AND OTHER MEASURES) ACT
2004
Date of Assent: 17 December 2004
Operative Date: 7 March 2005
ARRANGEMENT OF SECTIONS
CHAPTER I
INTRODUCTORY
1 Short title and
commencement
2 Interpretation: general
3 Terrorism: interpretation
4 Terrorist property:
Interpretation
CHAPTER II
OFFENCES
5 Fund-raising
6 Use and possession
7 Funding arrangements
8 Money laundering
9 Disclosure of information:
duty
10 Disclosure of information:
permission
11 Disclosure of information:
regulated and public
sectors
12 Cooperation with police
13 Penalties
14 Forfeitures
15 Forfeiture of terrorist cash
CHAPTER III
ACCOUNT MONITORING
ORDERS
16 Account monitoring
orders
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CHAPTER IV
TERRORIST FINANCE
OFFENCES: JURISDICTION
17 Terrorist finance: things
done outside Bermuda
CHAPTER V
GENERAL
18 Police powers
19 Production orders
20 Search warrants
21 Offences of prejudicing
investigation
22 Consent to prosecution
23 Disapplication of section 9
with respect to regulators
etc.
24 Evidence
25 Orders and directions
26 Section 55A of Proceeds of
Crime Act 1997 amended
SCHEDULE 1
DISCLOSURE OF
INFORMATION: REGULATED
AND PUBLIC SECTORS
SCHEDULE 2
FORFEITURE ORDERS
SCHEDULE 3
FORFEITURE OF TERRORIST
CASH
SCHEDULE 4
ACCOUNT MONITORING
ORDERS
WHEREAS it is expedient to make provision for cutting off the
financing of terrorism; and for connected purposes:
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:
Chapter I
Introductory
Short title and commencement
1. This Act may be cited as the Anti-Terrorism (Financial and Other
Measures) Act 2004 and shall come into operation on such day as the
Minister may appoint by notice published in the Gazette.
Interpretation: general
2. In this Act, unless the contrary intention appears
"act" and "action" include omission;
"article" includes substance and any other thing;
"Confiscated Assets Fund" means the Fund established under
section 55A of the Proceeds of Crime Act 1997;
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"country" includes territory;
"Minister" means the Minister responsible for justice;
"premises" includes any place, and in particular includes a
vehicle and a tent or moveable structure;
"property" includes property wherever situated and whether real
or personal, heritable or moveable, and things in action and
other intangible or incorporeal property;
"terrorist investigation" means an investigation of —
(a) the commission, preparation or instigation of acts of
terrorism;
(b) an act which appears to have been done for the
purposes of terrorism; or
(c) the commission, preparation or instigation of an offence
under this Act;
"vehicle" includes an aircraft, hovercraft, train or vessel.
Terrorism: interpretation
3. (1) In this Act "terrorism" means the use or threat of action
where —
(a) the action falls within subsection (2);
(b) the use or threat is designed to influence the government
or intimidate the public or a section of the public; and
(c) the use or threat is made for the purpose of advancing a
political, religious or ideological cause.
(2) Action falls within this section if it —
(a) involves serious violence against persons;
(b) involves serious damage to property;
(c) endangers a person's life, other than that of the person
committing the action;
(d) creates a serious risk to the health or safety of the public
or a section of the public; or
(e) is designed seriously to interfere with or seriously to
disrupt an electronic system.
(3) The use or threat of action falling within subsection (2)
which involves the use of firearms or explosives is terrorism whether or
not subsection (l)(b) is satisfied.
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(4) In this section —
(a) "action" includes action outside Bermuda;
(b) a reference to any person or to property is a reference to
any person, or to property, wherever situated;
(c) a reference to the public includes a reference to the
public of a country other than Bermuda;
(d) "explosive" means —
(i) an article or substance manufactured for the
purpose of producing a practical effect by
explosion;
(ii) materials for making an article or substance
within subparagraph (i);
(iii) anything used or intended to be used for
causing or assisting in causing an explosion;
and
(iv) a part of anything within subparagraph (i) or
(iii);
(e) "firearm" includes an air gun or air pistol; and
(f) "the government" means the government of Bermuda or
of a country (or a part of a country) other than Bermuda.
Terrorist property: interpretation
4. (1) In this Act "terrorist property" means —
(a) money or other property which is likely to be used for
the purposes of terrorism;
(b) proceeds of the commission of acts of terrorism; and
(c) proceeds of acts carried out for the purposes of
terrorism.
(2) In subsection (1) a reference to proceeds of an act includes
a reference to any property which wholly or partly, and directly or
indirectly, represents the proceeds of the act (including payments or
other rewards in connection with its commission).
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Chapter II
Offences
Fund-raising
5. (1) A person commits an offence if he —
(a) invites another to provide money or other property; and
(b) intends that it should be used, or suspects that it may
be used, for the purposes of terrorism.
(2) A person commits an offence if he —
(a) receives money or other property; and
(b) intends that it should be used, or suspects that it may
be used for the purposes of terrorism.
(3) A person commits an offence if he —
(a) provides money or other property; and
(b) knows or suspects that it will or may be used for the
purposes of terrorism.
(4) In this section a reference to the provision of money or other
property is a reference to its being given, lent or otherwise made
available, whether or not for consideration.
Use and possession
6. (1) A person commits an offence if he uses money or other
property for the purposes of terrorism.
(2) A person commits an offence if he —
(a) possesses money or other property; and
(b) intends that it should be used, or suspects that it may
be used, for the purposes of terrorism.
Funding arrangements
7. A person commits an offence if —
(a) he enters into or becomes concerned in an arrangement
as a result of which money or other property is made
available or is to be made available to another; and
(b) he knows or suspects that it will or may be used for the
purposes of terrorism.
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Money laundering
8. (1) A person commits an offence if he enters into or becomes
concerned in an arrangement which facilitates the retention or control by
or on behalf of another person of terrorist property —
(a) by concealment;
(b) by removal from the jurisdiction;
(c) by transfer to nominees; or
(d) in any other way.
(2) It is a defence for a person charged with an offence under
subsection (1) to prove that he did not know or suspect that the
arrangement related to terrorist property.
Disclosure of information: duty
9. (1) This section applies where a person —
(a) believes or suspects that another person has committed
an offence under any of sections 5 to 8; and
(b) bases his belief or suspicion on information which comes
to his attention in the course of a trade, profession,
business or employment.
(2) But this section does not apply if the information came to
the person in the course of a business in the regulated sector (as defined
in paragraph 1(12) of Schedule 1 for the purposes of that paragraph).
(3) The person commits an offence if he does not disclose to a
police officer, as soon as is reasonably practicable —
(a) his belief or suspicion; and
(b) the information on which it is based.
(4) It is a defence for a person charged with an offence under
subsection (3) to prove that he had a reasonable excuse for not making
the disclosure.
(5) Where —
(a) a person is in employment;
(b) his employer has established a procedure for the making
of disclosures of the matters specified in subsection (3);
and
(c) he is charged with an offence under that subsection;
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it is a defence for him to prove that he disclosed the matters specified in
that section in accordance with the procedure.
(6) Subsection (3) does not require disclosure by a professional
legal adviser of
(a) information which he obtains in privileged
circumstances; or
(b) a belief or suspicion based on information which he
obtains in privileged circumstances.
(7) For the purposes of subsection (6) information is obtained
by an adviser in privileged circumstances if it comes to him, otherwise
than with a view to furthering a criminal purpose —
(a) from a client or a client's representative, in connection
with the provision of legal advice by the adviser to the
client;
(b) from a person seeking legal advice from the adviser, or
from the person's representative; or
(c) from any person, for the purpose of actual or
contemplated legal proceedings.
(8) For the purposes of subsection (l)(a) a person shall be
treated as having committed an offence under one of sections 5 to 8 if —
(a) he has taken an action or been in possession of a thing;
and
(b) he would have committed an offence under one of those
sections if he had been in Bermuda at the time when he
took the action or was in possession of the thing.
(9) A person guilty of an offence under this section shall be
liable —
(a) on summary conviction, to a fine of $10,000 or to
imprisonment for six months, or to both.
(b) on conviction on indictment, to a fine of $100,000 or to
imprisonment for five years, or to both;
Disclosure of information: permission
10. (1) A person may disclose to a police officer —
(a) a suspicion or belief that any money or other property is
terrorist property or is derived from terrorist property;
(b) any matter on which the suspicion or belief is based.
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(2) A person may make a disclosure to a police officer in the
circumstances mentioned in sections 9 (1) and (3).
(3) Subsections (1) and (2) shall have effect notwithstanding
any restriction on the disclosure of information imposed by statute or
otherwise.
(4) Where —
(a) a person is in employment; and
(b) his employer has established a procedure for the making
of disclosures of the kinds mentioned in subsection (1)
and section 9(3);
subsections (1) and (2) shall have effect in relation to that person as if
any reference to disclosure to a police officer included a reference to
disclosure in accordance with the procedure.
Disclosure of information: regulated and public sectors
11. Schedule 1, which makes special provision for the disclosure of
information by persons in the regulated and public sectors, shall have
effect.
Cooperation with police
12. (1) A person does not commit an offence under any of sections
5 to 8 if he is acting with the express consent of a police officer.
(2) Subject to subsections (3) and (4), a person does not
commit an offence under any of sections 5 to 8 by involvement in a
transaction or arrangement relating to money or other property if he
discloses to a police officer —
(a) his suspicion or belief that the money or other property
is terrorist property; and
(b) the information on which his suspicion or belief is
based.
(3) Subsection (2) applies only where a person makes a
disclosure —
(a) after he becomes involved in the transaction or
arrangement concerned;
(b) on his own initiative; and
(c) as soon as is reasonably practicable.
(4) Subsection (2) does not apply to a person if —
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(a) the police officer forbids him to continue his involvement
in the transaction or arrangement to which the
disclosure relates; and
(b) he continues his involvement.
(5) It is a defence for a person charged with an offence under
any of sections 5(2) and (3) and 6 to 8 to prove that —
(a) he intended to make a disclosure of the kind mentioned
in subsections (2) and (3); and
(b) there is reasonable excuse for his failure to do so.
(6) Where —
(a) a person is in employment; and
(b) his employer has established a procedure for the making
of disclosures of the same kind as may be made to a
police officer under subsection (2);
this section shall have effect in relation to that person as if any reference
to disclosure to a police officer included a reference to disclosure in
accordance with the procedure.
(7) A reference in this section to a transaction or arrangement
relating to money or other property includes a reference to use or
possession.
Penalties
13. A person guilty of an offence under any of sections 5 to 8 shall
be liable —
(a) on summary conviction, to a fine of $20,000 or to
imprisonment for twelve months or to both;
(b) on conviction on indictment, to a fine of $200,000 or to
imprisonment for fourteen years, or to both.
Forfeitures
14. (1) The court by or before which a person is convicted of an
offence under any of sections 5 to 8 may make a forfeiture order in
accordance with the provisions of this section.
(2) Where a person is convicted of an offence under section 5(1)
or (2) or 6, the court may order the forfeiture of any money or other
property —
(a) which, at the time of the offence, he had in his
possession or under his control; and
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(b) which, at that time, he intended should be used, or
suspected might be used, for the purposes of terrorism.
(3) Where a person is convicted of an offence under section 5(3)
the court may order the forfeiture of any money or other property —
(a) which, at the time of the offence, he had in his
possession or under his control; and
(b) which, at that time, he knew suspected would or might
be used for the purposes of terrorism.
(4) Where a person is convicted of an offence under section 7
the court may order the forfeiture of the money or other property —
(a) to which the arrangement in question related; and
(b) which, at the time of the offence, he knew or suspected
would or might be used for the purposes of terrorism.
(5) Where a person is convicted of an offence under section 8
the court may order the forfeiture of the money or other property to
which the arrangement in question related.
(6) Where a person is convicted of an offence under any of
sections 5 to 8, the court may order the forfeiture of any money or other
property which wholly or partly, and directly or indirectly, is received by
any person as a payment or other reward in connection with the
commission of the offence.
(7) Where a person other than the convicted person claims to
be the owner of or otherwise interested in anything which can be
forfeited by an order under this section, the court shall give him an
opportunity to be heard before making an order.
(8) Schedule 2 (which makes further provision in relation to
forfeiture orders under this section) shall have effect.
Forfeiture of terrorist cash
15. (1) Schedule 3 (which makes provision for enabling cash
which —
(a) is intended to be used for the purposes of terrorism; or
(b) is, or represents, property obtained through terrorism,
to be forfeited in civil proceedings before a magistrate's court) shall have
effect.
(2) The powers conferred by Schedule 3 are exercisable in
relation to any cash whether or not proceedings have been brought for
an offence in connection with the cash.
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(3) Expressions used in this section have the same meanings
as in Schedule 3.
Chapter III
Account Monitoring Orders
Account monitoring orders
16. Schedule 4 (account monitoring orders) shall have effect.
Chapter IV
Terrorist Finance Offences: Jurisdiction
Terrorist finance: things done outside Bermuda
17. (1) If —
(a) a person does anything outside Bermuda; and
(b) his action would have constituted the commission of an
offence under any of sections 5 to 8 if it had been done
in Bermuda, he shall be guilty of the offence.
(2) For the purposes of subsection (l)(b), section 8(1)(b) shall be
read as if for "the jurisdiction" there were substituted "a jurisdiction".
Chapter V
General
Police powers
18. (1) A power conferred by virtue of this Act on a police officer —
(a) is additional to powers which he has at common law or
by virtue of any other law in force in Bermuda; and
(b) shall not be taken to affect those powers.
(2) A police officer may if necessary use reasonable force for the
purposes of exercising a power conferred on him by virtue of this Act.
(3) Where anything is seized by a police officer under a power
conferred by virtue of this Act, it may (unless the contrary intention
appears) be retained for so long as is necessary in all the circumstances
for the purposes of this Act.
(4) An offence under this Act is an offence for which a person
may be arrested without warrant; and the provisions of section 454 of
the Criminal Code Act 1907 shall apply to offences under this Act as they
apply to offences under that Act.
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Production orders
19. (1) Section 37 of the Proceeds of Crime Act 1997 (production
orders) applies (with appropriate modification) for the purposes of an
investigation into offences under sections 5 to 8 of this Act as it applies
for the purposes of investigations into the matters specified in
paragraphs (a) to (c) of section 37(1) of that Act.
(2) Section 38 of the Proceeds of Crime Act 1997 (failure to
comply with production orders) applies (with appropriate modification) to
production orders made pursuant to subsection (1) of this section as it
applies to production orders made pursuant to section 37 of that Act.
Search warrants
20. Section 39 of the Proceeds of Crime Act 1997 (search warrants)
applies (with appropriate modification) for the purposes of investigations
into offences under sections 5 to 8 of this Act as it applies for the
purposes of investigations into the matters specified in paragraphs (a) to
(c) of section 39(1) of that Act.
Offences of prejudicing investigation
21. Section 42 of the Proceeds of Crime Act 1997 (offence of
prejudicing investigation) applies (with appropriate modification) in
relation to investigations into offences under sections 5 to 8 of this Act as
it applies in relation to investigations into criminal conduct under that
Act.
Consent to prosecution
22. Proceedings for an offence under this Act shall not be instituted
without the consent of the Director of Public Prosecutions.
Disapplication of section 9 with respect to regulators etc.
23. (1) Section 9 shall not apply to the Bermuda Monetary
Authority.
(2) The Minister may by order provide for section 9 not to apply
to persons who are in his opinion performing or connected with the
performance of regulatory, supervisory, investigative or registration
functions of a public nature.
(3) An order made under this section —
(a) may make different provision for different purposes;
(b) may make provision which is to apply only in specified
circumstances; and
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(c) may make provision which applies only to particular
persons or persons of a particular description.
Evidence
24. (1) A document which purports to be —
(a) an order made by the Minister for the purposes of
paragraph 19 of Schedule 2 or paragraph 19 of Schedule
3; and
(b) signed by him or on his behalf;
shall be received in evidence and shall, until the contrary is proved, be
deemed to have been made by the Minister.
(2) A document bearing a certificate which —
(a) purports to be signed by or on behalf of the Minister;
and
(b) states that the document is a true copy of an order made
by the Minister for the purposes of a provision
mentioned in subsection (l)(a);
shall be evidence of the document in legal proceedings.
(3) No person shall be guilty of an offence, or be liable to any
penalty, by reason of an order made by the Minister in respect of
anything done or omitted before the coming into operation of that order.
Orders and directions
25. (1) The Minister may make any order or direction authorised to
be made under this Act.
(2) An order made or a direction given under this Act may be
varied or revoked by a further such order or direction, as the case may
be.
(3) An statutory instrument made under this Act is subject to
negative resolution procedure.
Section 55A of Proceeds of Crime Act 1997 amended
26. Section 55A of the Proceeds of Crime Act 1997 (confiscated
assets fund) is amended
(a) by inserting the following paragraph after paragraph (b)
of subsection (2)
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"(ba) cash or property forfeited or confiscated under the
Anti-Terrorism (Financial and Other Measures) Act
2004";
(b) by inserting "terrorist financing" after "drug trafficking"
in paragraph (a)(i) of subsection (3); and
(c) by inserting "or the Anti-Terrorism (Financial and Other
Measures) Act 2004" at the end of paragraphs (d) and (e)
of subsection (3).
SCHEDULE 1 (section 11)
DISCLOSURE OF INFORMATION: REGULATED AND PUBLIC
SECTORS
Part 1
Regulated Sector
Failure to disclose
1. (1) A person commits an offence if each of the following
conditions is satisfied.
(2) The first condition is that he knows or suspects that
another person has committed an offence under any of sections 5 to 8.
(3) The second condition is that the information or other
matter on which his knowledge or suspicion is based came to him in the
course of a business in the regulated sector.
(4) The third condition is that he does not disclose the
information or other matter to a police officer or a nominated officer as
soon as is reasonably practicable after it comes to him.
(5) But a person does not commit an offence under this
paragraph if —
(a) he has a reasonable excuse for not disclosing the
information or other matter; or
(b) he is a professional legal adviser and the information or
other matter came to him in privileged circumstances.
(6) In deciding whether a person committed an offence under
this paragraph the court must consider whether he followed any relevant
guidance which was at the time concerned —
(a) issued by a supervisory authority or any other
appropriate authority;
(b) approved by the Minister; and
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(c) published in a manner approved by the Minister as
appropriate in his opinion to bring the guidance to the
attention of persons likely to be affected by it.
(7) A certificate signed by or behalf of the Minister (or a true
copy of such a certificate) that a matter was, or was not, approved by the
Minister at any material time for the purposes of subparagraph (6) shall
be conclusive evidence of that fact in any legal proceedings, and a
document which purports to be such a certificate (or to be a true copy of
such a certificate) shall be received in evidence in any legal proceedings
and shall, until the contrary is proved, be deemed to be such a certificate
(or such a copy).
(8) A disclosure to a nominated officer is a disclosure which
(a) is made to a person nominated by the alleged offender's
employer to receive disclosures under this paragraph;
and
(b) is made in the course of the alleged offender's
employment and in accordance with the procedure
established by the employer for the purpose
(9) 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 a person in connection with legal proceedings or
contemplated legal proceedings.
(10) But subparagraph (9) does not apply to information or other
matter which is communicated or given with a view to furthering a
criminal purpose.
(11) For the purposes of subparagraph (2) the other person is
taken to have committed an offence there mentioned if
(a) he has taken an action or been in possession of a thing;
and
(b) he would have committed an offence if he had been in
Bermuda at the time when he took the action or was in
possession of the thing.
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(12) For the purposes of this paragraph a business is in the
regulated sector if it is for the time being specified as being in the
regulated sector, or if it belongs to a class of businesses that is for the
time being specified as being in the regulated sector, by order made by
the Minister.
(13) For the purposes of this paragraph a supervisory authority,
in relation to a business or a class of businesses within the regulated
sector, is any authority that is for the time being specified in that behalf
by order made by the Minister, and any such order may specify an
authority as a supervisory authority in relation to a particular business
within that sector or in relation to a particular class or particular classes
of businesses within that sector or in relation to businesses within that
sector in general
(14) For the purposes of this paragraph an appropriate body is
any body which regulates or is representative of any trade, profession,
business or employment carried on by the alleged offender.
(15) A person guilty of an offence under this paragraph is
liable —
(a) on summary conviction, to a fine of $10,000 or to
imprisonment for six months, or to both, or
(b) on conviction on indictment, to a fine of $100,000 or to
imprisonment for five years, or to both.
Protected disclosures
2. (1) A disclosure which satisfies the following three conditions is
not to be taken to breach any restriction on the disclosure of information
(however imposed).
(2) The first condition is that the information or other matter
disclosed came to the person making the disclosure (the discloser) in the
course of a business in the regulated sector.
(3) The second condition is that the information or other
matter causes the discloser to know or suspect that another person has
committed an offence under any of sections 5 to 8.
(4) The third condition is that the disclosure is made to a police
officer or nominated officer as soon as is practicable after the information
or other matter comes to the discloser.
(5) A disclosure to a nominated officer is a disclosure which —
(a) is made to a person nominated by the discloser's
employer to receive disclosures under this paragraph;
and
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(b) is made in the course of the discloser's employment and
in accordance with the procedure established by the
employer for that purpose.
(6) A business is within the regulated sector for the purposes of
this paragraph if it is such a business, in accordance with sub-
paragraph (12) of paragraph 1, for the purposes of that paragraph.
Part 2
Public Sector
Authorised or required disclosures
3. (1) Notwithstanding any restriction otherwise imposed by any
law for the time being in force in Bermuda on the disclosure by a
specified public officer or a specified public authority of information
obtained in an official capacity by that officer or authority, that officer or
authority may, and shall if so directed by the Minister under this
paragraph, disclose such information for any of the purposes to which
this paragraph applies.
(2) A direction given by the Minister under this paragraph may
specify the information to be disclosed, the person or authority to whom
it is to be disclosed and the manner in which, and any conditions subject
to which, it is to be disclosed.
(3) The information that may, or may be directed to be,
disclosed under this paragraph includes information obtained before the
commencement of this paragraph.
(4) It is an offence to fail to comply with a direction given by
the Minister under this paragraph, and any person guilty of such an
offence shall be liable —
(a) on summary conviction, to a fine of $10,000 or to
imprisonment for six months, or to both; or
(b) on conviction on indictment, to a fine of $100,000 or to
imprisonment for five years, or to both.
(5) The purposes to which this paragraph applies are —
(a) the purposes of any terrorist finance criminal
investigation which is being or may be carried out,
whether in Bermuda or elsewhere;
(b) the purposes of any terrorist finance criminal
proceedings which have been or may be initiated,
whether in Bermuda or elsewhere;
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(c) the purposes of the initiation or bringing to an end of
any such investigation or proceedings;
(d) the purpose of facilitating a determination of whether
any such investigation or proceedings should be initiated
or brought to an end.
(6) Nothing in this paragraph shall be taken to prejudice any
power to disclose information which exists apart from this paragraph.
(7) In this paragraph —
"conduct" includes acts, omissions and statements;
"information" includes documents;
"specified public authority" means an authority that is for the
time being specified for the purposes of this paragraph by an
order made by the Minister;
"specified public officer" means any person holding or acting in
any office that is for the time being specified for the purposes
of this paragraph by an order made by the Minister;
"terrorist finance criminal investigation" means an investigation
of any conduct which —
(a) constitutes one or more terrorist finance offences; or
(b) is, or corresponds to, conduct which, if it all took place
in Bermuda, would constitute such an offence or such
offences;
and includes an investigation of any alleged or suspected such
conduct and an investigation of whether any such conduct has
taken place;
"terrorist finance criminal proceedings" means proceedings for a
terrorist finance offence or, if they are proceedings outside
Bermuda, for an offence or offences substantially
corresponding to a terrorist finance offence; and
"terrorist finance offence" means an offence under any of
sections 5 to 8.
Restriction on disclosure of information for overseas purposes
4. (1) The Minister may give a direction which —
(a) specifies any overseas proceedings or overseas
investigation or any description of such proceedings or
investigations; and
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(b) prohibits, either absolutely or in such cases, or subject
to such conditions as to consent or otherwise, as may be
specified in the direction, the making of any relevant
disclosures for the purposes of those proceedings or that
investigation or, as the case may be, proceedings or
investigations of that description.
(2) In subparagraph (1) the reference, in relation to a direction,
to a relevant disclosure is a reference to a disclosure which —
(a) is authorised by paragraph 3 or by or under any other
law for the time being in force in Bermuda; and
(b) is a disclosure of such information as is described in the
direction.
(3) A person who discloses any information in contravention of
a direction under this paragraph shall be guilty of an offence and shall
be liable —
(a) on summary conviction, to a fine of $5,000 or to
imprisonment for three months, or to both;
(b) on conviction on indictment, to a fine of $50,000 or
imprisonment for two years, or to both;
(4) In this paragraph
"information" includes documents;
"overseas investigation" means a terrorist finance criminal
investigation (as defined in paragraph 3(7)) which is being, or
will or may be, conducted by an authority of a country
outside Bermuda;
"overseas proceedings" means terrorist finance criminal
proceedings (as defined in paragraph 3(7)) which are taking
place, or will or may take place, in a country outside
Bermuda.
SCHEDULE 2 (section 14)
FORFEITURE ORDERS
Part 1
Bermuda Orders
Interpretation
1. In this Schedule —
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"forfeiture order" means an order made by a court under section
14; and
"forfeited property" means the money or other property to which
a forfeiture order applies.
Implementation of forfeiture orders
2. (1) Where a court makes a forfeiture order it may make such
other provision as appears to it to be necessary for giving effect to the
order, and in particular it may —
(a) require any of the forfeited property to be paid or handed
over to the proper officer or to a police officer ;
(b) direct any of the forfeited property other than money or
land to be sold or otherwise disposed of in such manner
as the court may direct and the proceeds (if any) to be
paid to the proper officer;
(c) appoint a receiver to take possession, subject to such
conditions and exceptions as may be specified by the
court, of any of the forfeited property, to realise it in
such manner as the court may direct and to pay the
proceeds to the proper officer;
(d) direct a specified part of any forfeited money, or of the
proceeds of the sale, disposal or realisation of any
forfeited property, to be paid by the proper officer to a
specified person falling within section 14(7).
(2) A forfeiture order shall not come into force until there is no
further possibility of it being varied or set aside on appeal (disregarding
any power of a court to grant leave to appeal out of time).
(3) In subparagraphs (1)(b) and (d) a reference to the proceeds
of the sale, disposal or realisation of property is a reference to the
proceeds after deduction of the costs of sale, disposal or realisation.
Remuneration of receiver
3. (1) A receiver appointed under paragraph 2 shall be entitled to
be paid his remuneration and expenses out of the proceeds of the
property realised by the receiver and paid to the proper officer under
paragraph 2(1)(c).
(2) If and so far as those proceeds are insufficient, the receiver
shall be entitled to be paid his remuneration and expenses out of the
Confiscated Assets Fund.
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(3) A receiver appointed under paragraph 2 shall not be liable
to any person in respect of any loss or damage resulting from action —
(a) which he takes in relation to property which is not
forfeited property, but which he reasonably believes to
be forfeited property;
(b) which he would be entitled to take if the property were
forfeited property; and
(c) which he reasonably believes that he is entitled to take
because of his belief that the property is forfeited
property.
(4) Subparagraph (3) does not apply in so far as the loss or
damage is caused by the receiver's negligence.
Meaning of "proper officer"
4. (1) In paragraphs 2 and 3 "the proper officer" means the person
holding or acting in the office (however styled) of clerk to the court by
which the forfeiture order was made.
(2) The proper officer shall issue a certificate in respect of a
forfeiture order if an application is made by —
(a) the prosecutor in the proceedings in which the forfeiture
order was made;
(b) the defendant in those proceedings; or
(c) a person whom the court heard under section 14(7)
before making the order.
(3) The certificate shall state the extent (if any) to which, at the
date of the certificate, effect has been given to the forfeiture order.
Restraint orders
5. (1) The Supreme Court may make a restraint order under this
paragraph where ¯
(a) proceedings have been instituted for an offence under
any of sections 5 to 8;
(b) the proceedings have not been concluded;
(c) an application for a restraint order is made to the
Supreme Court by the prosecutor; and
(d) a forfeiture order has been made, or it appears to the
Supreme Court that a forfeiture order may be made, in
the proceedings for the offence.
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(2) The Supreme Court may also make a restraint order under
this paragraph where
(a) a criminal investigation has been started with regard to
an offence under any of sections 5 to 8;
(b) an application for a restraint order is made to the
Supreme Court by a person who the Supreme Court is
satisfied will have the conduct of any proceedings for the
offence; and
(c) it appears to the Supreme Court that a forfeiture order
may be made in any proceedings for the offence.
(3) A restraint order prohibits a person to whom notice of it is
given, subject to any conditions and exceptions specified in the order,
from dealing with property in respect of which a forfeiture order has been
or could be made in any proceedings referred to in subparagraph (1) or
(2).
(4) An application for a restraint order may be made ex parte to
a judge in Chambers.
(5) In this paragraph a reference to dealing with property
includes a reference to removing the property from Bermuda.
(6) In this paragraph "criminal investigation" means an
investigation which police officers or others have a duty to conduct with
a view to it being ascertained whether a person should be charged with
an offence.
Restraint orders: discharge of order
6. (1) A restraint order shall provide for notice of it to be given to
any person affected by the order.
(2) A restraint order may be discharged or varied by the
Supreme Court on the application of a person affected by it.
(3) A restraint order made under paragraph 5(1) shall in
particular be discharged on an application under subparagraph (2) if the
proceedings for the offence have been concluded.
(4) A restraint order made under paragraph 5(2) shall in
particular be discharged on an application under subparagraph (2) —
(a) if no proceedings in respect of offences under any of
sections 5 to 8 are instituted within such time as the
Supreme Court considers reasonable; or
(b) if all proceedings in respect of offences under any of
sections 5 to 8 have been concluded.
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Restrain orders: power to seize property
7. (1) A police officer may seize any property subject to a restraint
order for the purpose of preventing it from being removed from Bermuda.
(2) Property seized under this paragraph shall be dealt with in
accordance with the Supreme Court's directions.
Restraint orders: land charges and registration
8. (1) Any provision of any law in force in Bermuda with respect to
land charges —
(a) shall apply in relation to restraint orders as they apply
in relation to orders affecting land made by the court for
the purpose of enforcing judgments or recognizances;
and
(b) shall apply in relation to applications for restraint orders
as they apply in relation to other pending land actions.
(2) Where a restraint order is made under paragraph 5(l) or an
application for such an order is made, the prosecutor in the proceedings
for the offence shall be treated for the purposes of any provision relating
to inhibitions contained in any law in force in Bermuda with respect to
land as a person interested in respect of any land to which the restraint
order or the application for the restraint order relates.
(3) Where a restraint order is made under paragraph 5(2) or an
application for such an order is made, the person who the Supreme
Court is satisfied will have the conduct of any proceedings for an offence
under any of sections 5 to 8 shall be treated for the purposes of any such
provision as is referred to in subparagraph (2) as a person interested in
respect of any land to which the restraint order or the application for a
restraint order relates.
Compensation
9. (1) This paragraph applies where a restraint order is
discharged under paragraph 6(4)(a).
(2) This paragraph also applies where a forfeiture order or a
restraint order is made in or in relation to proceedings for an offence
under any of sections 5 to 8 which —
(a) do not result in conviction for an offence under any of
those sections;
(b) result in conviction for an offence under any of those
sections in respect of which the person convicted is
subsequently pardoned by Her Majesty; or
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(c) result in conviction for an offence under any of those
sections which is subsequently quashed.
(3) A person who has an interest in any property which was
subject to the order may apply to the Supreme Court for compensation.
(4) The Supreme Court may order compensation to be paid to
the applicant if satisfied —
(a) that there was a serious default on the part of a person
concerned in the investigation or prosecution of the
offence;
(b) that the person concerned was or was acting as a
member of the police service or was or was acting under
the authority of the Attorney General or the Director of
Public Prosecutions;
(c) that the applicant has suffered loss in consequence of
anything done in relation to the property by or in
pursuance of the forfeiture order or restraint order; and
(d) that, having regard to all the circumstances, it is
appropriate to order compensation to be paid.
(5) The Supreme Court shall not order compensation to be paid
where it appears to it that proceedings for the offence would have been
instituted even if the serious default had not occurred.
(6) Compensation payable under this paragraph shall be paid
out of the Confiscated Assets Fund.
Proceedings for an offence: timing
10. (1) For the purpose of this Part of this Schedule, proceedings
for an offence are instituted —
(a) when a summons or warrant is issued, or a complaint is
laid, in respect of the offence;
(b) when a person is charged with the offence after being
taken into custody without a warrant; or
(c) when a bill of indictment charging a person with the
offence is preferred.
(2) Where the application of subparagraph (1) would result in
there being more than one time for the institution of proceedings they
shall be taken to be instituted at the earliest of those times.
(3) For the purposes of this Part of this Schedule proceedings
are concluded —
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(a) when a forfeiture order has been made in those
proceedings and effect has been given to it in respect of
all the forfeited property; or
(b) when no forfeiture order has been made in those
proceedings and there is no further possibility of one
being made as a result of an appeal (disregarding any
power of a court to grant leave to appeal out of time).
Part 2
External Orders
Enforcement of orders made in designated countries
11 (1) The Minister may by order make provision for the purpose
of enabling the enforcement in Bermuda of external orders.
(2) An "external order" means an order —
(a) which is made in a country that is designated for the
purposes of this paragraph by the order made by the
Minister; and
(b) which makes relevant provision.
(3) "Relevant provision" means —
(a) provision for the forfeiture of terrorist property ("an
external forfeiture order"); or
(b) provision prohibiting dealing with property which is
subject to an external forfeiture order or in respect of
which such an order could be made in proceedings
which have been or are to be instituted in the designated
country ("an external restraint order").
(4) An order made by the Minister under this paragraph may,
in particular, include provision —
(a) which, for the purpose of facilitating the enforcement of
an external order that may be made, has effect at times
before there is an external order to be enforced;
(b) which disapplies, or qualifies or modifies the application
of, any of the provisions of subparagraphs (6)(b) and (7)
to (14) of this paragraph to or in relation to any specified
external order (or any specified class of such orders)
made in a specified designated country;
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(c) for the proof of any matter relevant for the purposes of
anything falling to be done in pursuance of the order
made by the Minister.
(5) An order made by the Minister under this paragraph may
also make provision with respect to anything falling to be done on behalf
of Bermuda in a designated country in relation to proceedings in that
country for or in connection with the making of an external order.
(6) An external order shall be enforced in Bermuda only in
accordance with —
(a) the provisions of, or any provisions made under, this
paragraph, and
(b) any provisions made by rules of court as to the manner
in which, and the conditions subject to which, such
orders are to be enforced there.
(7) On an application made to it in accordance with rules of
court for registration of an external order made in a designated country,
the Supreme Court shall direct that the order shall, in accordance with
such rules, be registered in that Court.
(8) Rules of court shall also make provision —
(a) for cancelling or varying the registration of an external
forfeiture order when effect has been given to it, whether
in Bermuda or elsewhere, in respect of all or, as the case
may be, part of the money or other property to which the
order applies; and
(b) for cancelling or varying the registration of an external
restraint order which has been discharged or varied by
the court by which it was made.
(9) If an external forfeiture order is registered under this
paragraph, the Supreme Court shall have, in relation to that order, the
same powers as a court has under paragraph 2(1) to give effect to a
forfeiture order made by it; and —
(a) paragraphs 3 and 4 shall apply accordingly; and
(b) after making any payments required by virtue of
paragraph 2(1)(d) or (3), the balance of any sums
received by the proper officer (as defined by paragraph
4(1)) by virtue of an order made under this
subparagraph shall be paid by him to the Minister.
(10) If an external restraint order is registered under this
paragraph —
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(a) paragraphs 7 and 8 shall apply as they apply to a
restraint order under paragraph 5; and
(b) the Supreme Court shall have the like power, in relation
to proceedings brought or likely to be brought for that
order, to make an order for inspection of property or for
related matters as it would have, under any law for the
time being in force in Bermuda, if those proceedings had
been brought or were likely to be brought in the
Supreme Court.
(11) In addition, if an external order is registered under this
paragraph —
(a) the Supreme Court shall have, in relation to its
enforcement, the same power as if the order had
originally been made in the Supreme Court;
(b) proceedings for or with respect to its enforcement may
be taken as if the order had originally been made in the
Supreme Court; and
(c) proceedings for or with respect to contravention of such
an order, whether before or after such registration, may
be taken as if the order had originally been made in the
Supreme Court.
(12) The Supreme Court may also make such orders or do
otherwise as seems to it appropriate for the purpose of —
(a) assisting the achievement in Bermuda of the purposes of
an external order that has been registered under this
paragraph; or
(b) assisting a receiver or other person directed by such an
external order to sell or otherwise dispose of property.
(13) The following documents shall be received in evidence in
Bermuda without further proof
(a) a document purporting to be a copy of an external order
and to be certified as such by a proper officer of the
court by which it was made; and
(b) a document purporting to be a certificate for purposes
corresponding to those of paragraphs 4(2) and (3) and to
be certified by a proper officer of the court concerned.
(14) Where, under any of the provisions of this paragraph, a
thing is to be done in accordance with rules of court, it may, if there are
for the time being no rules of court in force in Bermuda governing that
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matter, be done in accordance with such directions in that behalf as may
be given by a judge of the Supreme Court on application made ex parte
to him in Chambers.
(15) An order made by the Minister under this paragraph may
make different provision for different cases.
Part 3
Insolvency
General
12. In this Part of this Schedule —
"ancillary order" means an order made in connection with a
forfeiture, other than the forfeiture order;
"forfeiture order" means an order made in Bermuda under
section 14 or an external forfeiture order which is enforceable
in Bermuda by virtue of an order made by the Minister under
paragraph 11;
"forfeited property" means the money or other property to which
a forfeiture order applies; and
"restraint order" means an order made under paragraph 5 or an
external restraint order which is enforceable in Bermuda by
virtue of an order made by the Minister under paragraph 11.
Protection of creditors against forfeiture
13. (1) During the period of six months beginning with the making
of a forfeiture order, the following shall not be finally disposed of under
this Schedule —
(a) the money to which the order applies; and
(b) the money which represents any property to which the
order applies.
(2) For the purposes of this paragraph money is finally
disposed of under this Schedule when —
(a) in the case of a forfeiture order made in Bermuda, it is
paid to the person or authority authorised by law to
receive the proceeds of fines; or
(b) in the case of an external forfeiture order, it is paid to
the Minister under paragraph 11(9)(b).
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Insolvency
14. (1) This paragraph applies where —
(a) before or after a forfeiture order is made, the
commencement of qualifying insolvency proceedings
occurs;
(b) an insolvency officer would, but for the forfeiture order,
exercise a function in those proceedings in relation to
property to which the forfeiture order applies; and
(c) he gives written notice to the relevant officer of the
matters referred to in subparagraphs (a) and (b) before
the end of the period of six months beginning with the
making of the forfeiture order.
(2) Subparagraph (3) shall apply to —
(a) the property in relation to which the insolvency officer
would, but for the forfeiture order, exercise a function as
described in subparagraph (l)(b); and
(b) the proceeds of sale of that property.
(3) The property —
(a) shall cease to be subject to the forfeiture order and any
ancillary order; and
(b) shall be dealt with in the qualifying insolvency
proceedings as if the forfeiture order had never been
made.
(4) But —
(a) the property to which subparagraph (3) applies is the
balance remaining after the relevant officer has exercised
his powers under paragraph 17(1); and
(b) subparagraph (3) shall not take effect in respect of
property in relation to which the relevant officer, or any
person acting in pursuance of an ancillary order, has
incurred obligations until those obligations have been
discharged.
(5) In this paragraph "the commencement of qualifying
insolvency proceedings" means —
(a) the making of a receiving order in bankruptcy
proceedings;
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(b) in the case of the insolvent estate of a deceased person,
the making of a bankruptcy administration order; or
(c) in the case of a company, the passing of a resolution for
its winding up or, where no such resolution has been
passed, the making of an order by a court for its winding
up.
Minister's debt
15 (1) Where by virtue of paragraph 14(3) property falls to be dealt
with in qualifying insolvency proceedings, the Minister shall be taken to
be a creditor in those proceedings for a debt to the amount or value of
the property.
(2) The Minister's debt —
(a) shall rank after the debts of all other creditors; and
(b) shall not be paid until they have been paid in full with
interest under the relevant provision.
(3) In subparagraph (2)(b) the "relevant provision" means —
(a) in relation to the winding up of a company, the
provisions of the Companies Act 1981 relating to such
winding up on insolvency that provides for the payment,
from any surplus remaining after the payment of debts
proved on the winding up, of interest on those debts in
respect of the periods during which they have been
outstanding since the commencement of the liquidation
to which they would have been entitled but for the
existence of the Minister's debt; and
(b) in relation to a bankruptcy, the provisions of the
Bankruptcy Act 1989 that provide for the payment, from
any surplus remaining after the payment of debts proved
in the bankruptcy, of interest on those debts in respect
of the periods during which they have been outstanding
since the commencement of the bankruptcy.
(4) Subparagraphs (2) and (3) apply notwithstanding any other
law for the time being in force in Bermuda.
Property subject to forfeiture where bankruptcy order annulled
16. (1) This paragraph applies to any property which ceased to be
subject to a forfeiture order by virtue of paragraph 14(3) in consequence
of the making of a bankruptcy order.
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(2) The property shall again become subject to the forfeiture
order and, if applicable, any ancillary order if the bankruptcy order is
annulled.
(3) Where the property is money or has been converted into
money —
(a) the court which ordered the annulment of the
bankruptcy shall make an order specifying property
comprised in the estate of the bankrupt or debtor to the
amount or value of the property; and
(b) the specified property shall become subject to the
forfeiture order, and any applicable ancillary order, in
place of the property.
Allowable forfeiture expenses
17. (1) Where money or other property falls to be dealt with in
accordance with paragraph 14(3), the relevant officer may —
(a) deduct allowable forfeiture expenses from that money;
(b) retain so much of that property as he considers
necessary for the purpose of realising it and deducting
allowable forfeiture expenses from the proceeds of
realisation.
(2) Where property is delivered up in pursuance of paragraph
14(3) and the relevant officer has not made provision under sub-
paragraph (1) for all the allowable forfeiture expenses, then —
(a) a person who has incurred allowable forfeiture expenses
for which provision has not been made shall have a
claim to their value in qualifying insolvency proceedings;
and
(b) the expenses in question shall be treated for the
purposes of the qualifying insolvency proceedings as if
they were expenses of those proceedings.
Protection of insolvency officers
18. (1) This paragraph applies where an insolvency officer seizes or
disposes of property which is subject to a forfeiture order or a restraint
order and —
(a) he reasonably believes that he is entitled to do so in the
exercise of his functions; and
(b) he would be so entitled if the property were not subject
to a forfeiture order or a restraint order
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(2) The insolvency officer shall not be liable to any person in
respect of any loss or damage resulting from the seizure or disposal
except in so far as the loss or damage is caused by his negligence.
(3) The insolvency officer shall have a lien on the property
seized or the proceeds of its sale —
(a) for such of his expenses as were incurred in connection
with the qualifying insolvency proceedings in relation to
which the seizure or disposal purported to take place;
and
(b) for so much of his remuneration as may be reasonably
assigned for his acting in connection with those
proceedings.
(4) Subparagraphs (1) to (3) are without prejudice to the
generality of any provision contained in any law relating to insolvency for
the time being in force in Bermuda.
(5) In this paragraph "insolvency officer" means a person acting
as such and, for the purposes of this paragraph, the question whether
any person is acting as such shall be determined in accordance with
subparagraphs (6), (7) and (8) except that the expression shall also
include an Official Receiver (however styled) acting as receiver or
manager of property.
(6) For the purposes of this paragraph a person acts as an
insolvency officer in relation to a company by acting as its liquidator,
provisional liquidator or administrator.
(7) For the purposes of this paragraph a person acts as an
insolvency officer in relation to an individual by acting —
(a) as his trustee in bankruptcy or interim receiver of his
property; or
(b) as trustee under a deed which is a deed of arrangement
made for the benefit of his creditors; or
(c) as supervisor of a voluntary arrangement proposed by
him and approved under the law for the time being in
force in Bermuda relating to the insolvency of
individuals; or
(d) in the case of a deceased individual to whose estate the
provisions of the law for the time being in force in
Bermuda relating to the administration of the insolvent
estates of deceased persons apply, as administrator of
that estate.
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(8) References in subparagraph (7) to an individual include,
except in so far as the context otherwise requires, references to a
partnership.
Application of this part to external insolvency officer
19. (1) The Minister may make an order under this paragraph to
secure that an external insolvency officer has the same rights under this
Part of this Schedule in relation to property situated in Bermuda as he
would have if he were an insolvency officer in Bermuda.
(2) An order made under this paragraph may, in particular,
include —
(a) provision which modifies the rights under this Part of
this Schedule which are to be conferred under the order;
(b) provision as to the manner in which the rights conferred
under the order are to be exercised;
(c) provision as to the conditions subject to which those
rights are to be exercised, including the obtaining of
leave from a court;
(d) provision empowering a court granting such leave to
impose such conditions as it thinks fit.
(3) In this paragraph —
(a) "external insolvency officer" means a person exercising
under the insolvency law of a designated country (that is
to say, a country designated as mentioned in paragraph
11), functions corresponding to those exercised by
insolvency officers under the insolvency law of Bermuda;
(b) "the insolvency law of Bermuda" means the provisions of
the law for the time being in force in Bermuda relating to
insolvency;
(c) "the insolvency law of a designated country" means so
much of the law for the time being in force in that
country as corresponds to provisions falling within sub-
paragraph (b).
Interpretation
20. (1) In this Part of this Schedule (other than in paragraph 18)
"insolvency officer" means a person acting in any qualifying insolvency
proceedings in Bermuda as —
(a) a liquidator of a company ;
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(b) a trustee in bankruptcy;
(c) an administrator of the insolvent estate of a deceased
person;
(d) a receiver or manager of any property; or
(e) the Official Receiver when acting in any capacity move
subparagraphs (a) to (d)
(2) In this Part of this Schedule "qualifying insolvency
proceedings" means —
(a) any proceedings for the winding up of a company and
includes any voluntary winding up of a company;
(b) any proceedings under the Bankruptcy Act 1989.
(3) In this Part of this Schedule "the relevant officer" means the
proper officer within the meaning given in paragraph 4.
(4) In this Part of this Schedule references to the proceeds of
sale or realisation of property are references to the proceeds after
deduction of the costs of sale or realisation.
SCHEDULE 3 (section 15)
FORFEITURE OF TERRORIST CASH
Part 1
Introductory
Terrorist cash
1. (1) This Schedule applies to cash ("terrorist cash") which —
(a) is within section 15(1)(a); or
(b) is property earmarked as terrorist property.
(2) "Cash" means —
(a) coins and notes in any currency;
(b) postal orders;
(c) cheques of any kind, including travellers' cheques;
(d) bankers' drafts;
(e) bearer bonds and bearer shares, found at any place in
Bermuda.
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(3) Cash also includes any kind of monetary instrument found
at any place in Bermuda if the instrument is specified by order made
under subparagraph (4).
(4) The Minister may, by order specify a monetary instrument
for the purposes of this paragraph.
Part 2
Seizure and Detention
Seizure of cash
2. (1) An authorised officer may seize any cash if he has
reasonable grounds for suspecting that it is terrorist cash.
(2) An authorised officer may also seize cash part of which he
has reasonable grounds for suspecting to be terrorist cash if it is not
reasonably practicable to seize only that part.
Detention of seized cash
3. (1) While the authorised officer continues to have reasonable
grounds for his suspicion, cash seized under this Schedule may be
detained initially for a period of 48 hours.
(2) The period for which the cash or any part of it may be
detained may be extended by an order made by a magistrates' court; but
the order may not authorise the detention of any of the cash —
(a) beyond the end of the period of three months beginning
with the date of the order; and
(b) in the case of any further order under this paragraph,
beyond the end of the period of two years beginning with
the date of the first order.
(3) A justice of the peace or magistrate may also exercise the
power of a magistrates' court to make the first order under sub-
paragraph (2) extending the period.
(4) An order under subparagraph (2) must provide for notice to
be given to persons affected by it.
(5) An application for an order under subparagraph (2) may be
made by an authorised officer, and the court or justice or magistrate may
make the order if satisfied, in relation to any cash to be further detained,
that one of the following conditions is met.
(6) The first condition is that there are reasonable grounds for
suspecting that the cash is intended to be used for the purposes of
terrorism and that either —
ANTI-TERRORISM (FINANCIAL AND OTHER MEASURES) ACT
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(a) its continued detention is justified while its intended use
is further investigated or consideration is given to
bringing (in Bermuda or elsewhere) proceedings against
a person for an offence with which the cash is
connected; or
(b) proceedings against any person for an offence with
which the cash is connected have been started (in
Bermuda or elsewhere) and have not been concluded.
(7) The second condition is that there are reasonable grounds
for suspecting that the cash is property earmarked as terrorist property
and that either —
(a) its continued detention is justified while its derivation is
further investigated or consideration is given to bringing
(in Bermuda or elsewhere) proceedings against any
person for an offence with which the cash is connected;
or
(b) proceedings against any person for an offence with
which the cash is connected have been started (in
Bermuda or elsewhere) and have not been concluded.
Payment of detained cash into an account
4. (1) If cash is detained under this Schedule for more than 48
hours, it is to be held in an interest-bearing account and the interest
accruing on it is to be added to it on its forfeiture or release.
(2) In the case of cash seized under paragraph 2(2) of this Part,
the authorised officer must, on paying it into the account, release so
much of it as is not attributable to terrorist cash.
(3) Subparagraph (1) does not apply if the cash is required as
evidence of an offence or evidence in proceedings under this Schedule.
Release of detained cash
5. (1) This paragraph applies while any cash is detained under
this Schedule.
(2) A magistrates' court may direct the release of the whole or
any part of the cash if satisfied, on an application by the person from
whom it was seized, that the conditions in paragraph 3 for the detention
of cash are no longer met in relation to the cash to be released.
(3) An authorised officer may, after notifying the magistrates'
court or justice or magistrate under whose order cash is being detained,
release the whole or any part of it if satisfied that the detention of the
cash to be released is no longer justified.
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(4) But cash is not to be released —
(a) if an application for its forfeiture under paragraph 6, or
for its release under paragraph 9, is made, until any
proceedings in pursuance of the application (including
any proceedings on appeal) are concluded;
(b) if (in Bermuda or elsewhere) proceedings are started
against any person for an offence with which the cash is
connected, until the proceedings are concluded.
Part 3
Forfeiture
Forfeiture
6. (1) While cash is detained under this Schedule, an application
for the forfeiture of the whole or any part of it may be made to a
magistrates' court by an authorised officer.
(2) The court may order the forfeiture of the cash or any part of
it if satisfied that the cash or part is terrorist cash.
(3) In the case of property earmarked as terrorist property
which belongs to joint tenants one of whom is an excepted joint owner,
the order may not apply to so much of it as the court thinks is
attributable to the excepted joint owner's share.
(4) An excepted joint owner is a joint tenant who obtained the
property in circumstances in which it would not (as against him) be
earmarked; and references to his share of the earmarked property are
references to so much of the property as would have been his if the joint
tenancy had been severed.
Appeal against forfeiture
7. (1) Any party to proceedings in which an order is made under
paragraph 6 ("a forfeiture order") who is aggrieved by the order may
appeal to the Supreme Court.
(2) An appeal under subparagraph (1) must be made within the
period of 30 days beginning with the date on which the order is made.
(3) The Court may make any order it thinks appropriate.
(4) If the Court upholds the appeal, it may order the release of
the cash.
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Application of forfeited cash
8. (1) Cash forfeited under this Schedule, and any accrued
interest on it, is to be paid into the Confiscated Assets Fund.
(2) But it is not to be paid in —
(a) before the end of the period within which an appeal
under paragraph 7 may be made; or
(b) if a person appeals under that paragraph, before the
appeal is determined or otherwise disposed of.
Part 4
Miscellaneous
Victims
9. (1) A person who claims that any cash detained under this
Schedule, or any part of it, belongs to him may apply to a magistrates'
court for the cash or part to be released to him under this paragraph.
(2) The application may be made in the course of proceedings
under paragraph 3 or 6 or at any other time.
(3) If it appears to the court that —
(a) the applicant was deprived of the cash claimed, or of
property which it represents, by criminal conduct;
(b) the property he was deprived of was not, immediately
before he was deprived of it, property obtained by or in
return for criminal conduct and nor did it then represent
such property; and
(c) the cash claimed belongs to him,
the court may order the cash to be released to the applicant.
Compensation
10. (1) If no forfeiture order is made in respect of any cash
detained under this Schedule, the person to whom the cash belongs or
from whom it was seized may make an application to the magistrates'
court for compensation.
(2) If, for any period after the initial detention of the cash for 48
hours, the cash was not held in an interest-bearing account while
detained, the court may order an amount of compensation to be paid to
the applicant.
(3) The amount of compensation to be paid under sub-
paragraph (2) is the amount the court thinks would have been earned in
ANTI-TERRORISM (FINANCIAL AND OTHER MEASURES) ACT
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interest in the period in question if the cash had been held in an
interest-bearing account.
(4) If the court is satisfied that, taking account of any interest
to be paid under this Schedule or any amount to be paid under
subparagraph (2), the applicant has suffered loss as a result of the
detention of the cash and that the circumstances are exceptional, the
court may order compensation (or additional compensation) to be paid to
him.
(5) The amount of compensation to be paid under sub-
paragraph (4) is the amount the court thinks reasonable, having regard
to the loss suffered and any other relevant circumstances.
(6) Any compensation ordered to be paid under this paragraph
is to be paid out of the Confiscated Assets Fund
(7) If a forfeiture order is made in respect only of a part of any
cash detained under this Schedule, this paragraph has effect in relation
to the other part.
(8) This paragraph does not apply if the court makes an order
under paragraph 9.
Part 5
Property Earmarked as Terrorist Property
Property obtained through terrorism
11. (1) A person obtains property through terrorism if he obtains
property by or in return for acts of terrorism, or acts carried out for the
purposes of terrorism.
(2) In deciding whether any property was obtained through
terrorism —
(a) it is immaterial whether or not any money, goods or
services were provided in order to put the person in
question in a position to carry out the acts; and
(b) it is not necessary to show that the acts were of a
particular kind if it is shown that the property was
obtained through acts of one of a number of kinds, each
of which would have been an act of terrorism, or an act
carried out for the purposes of terrorism.
Property earmarked as terrorist property
12. (1) Property obtained through terrorism is earmarked as
terrorist property.
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(2) But if property obtained through terrorism has been
disposed of (since it was so obtained), it is earmarked as terrorist
property only if it is held by a person into whose hands it may be
followed.
(3) Property may be followed into the hands of a person
obtaining it on a disposal by —
(a) the person who obtained the property through terrorism;
or
(b) a person into whose hands it may (by virtue of this
subparagraph) be followed.
Tracing property
13. (1) Where property obtained through terrorism ("the original
property") is or has been earmarked as terrorist property, property which
represents the original property is also earmarked.
(2) If a person enters into a transaction by which —
(a) he disposes of the original property or of property which
(by virtue of this Part) represents the original property;
and
(b) he obtains other property in place of it;
the other property represents the original property.
(3) If a person disposes of property which represents the
original property, the property may be followed into the hands of a
person who obtains it (and it continues to represent the original
property).
Mixing property
14. (1) Subparagraph (2) applies if a person's property which is
earmarked as terrorist property is mixed with other property (whether his
property or another's).
(2) The portion of the mixed property which is attributable to
the property earmarked as terrorist property represents the property
obtained through terrorism.
(3) Property earmarked as terrorist property is mixed with
other property if (for example) it is used —
(a) to increase funds held in a bank account;
(b) in part payment for the acquisition of an asset;
(c) for the restoration or improvement of land;
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(d) by a person holding a leasehold interest in the property
to acquire the freehold.
Accruing profits
15. (1) This paragraph applies where a person who has property
earmarked as terrorist property obtains further property consisting of
profits accruing in respect of the earmarked property.
(2) The further property is to be treated as representing the
property obtained through terrorism.
General exceptions
16. (1) If —
(a) a person disposes of property earmarked as terrorist
property; and
(b) the person who obtains it on the disposal does so in
good faith, for value and without notice that it was
earmarked;
the property may not be followed into that person's hands and,
accordingly, it ceases to be earmarked.
(2) If —
(a) in pursuance of a judgment in civil proceedings (whether
in Bermuda or elsewhere), the defendant makes a
payment to the plaintiff or the plaintiff otherwise obtains
property from the defendant;
(b) the plaintiff's claim is based on the defendant's criminal
conduct; and
(c) apart from this subparagraph, the sum received, or the
property obtained, by the plaintiff would be earmarked
as terrorist property;
the property ceases to be earmarked.
(3) If —
(a) under any law in force in Bermuda, a payment is made
to any person, or a person otherwise obtains property, in
pursuance of a compensation order or a restitution order
made in respect of loss or injury suffered in consequence
of criminal conduct or other misconduct; and
(b) apart from this subparagraph, the sum received, or the
property obtained, would be earmarked as terrorist
property;
ANTI-TERRORISM (FINANCIAL AND OTHER MEASURES) ACT
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the property ceases to be earmarked.
(4) Where —
(a) a person enters into a transaction to which paragraph
13(2) applies; and
(b) the disposal is one to which subparagraph (1) applies;
this paragraph does not affect the question whether (by virtue of
paragraph 13(2)) any property obtained on the transaction in place of the
property disposed of is earmarked.
Part 6
Exercise of Officers' Powers
General
17. An authorised officer may enter any premises for the purposes of
exercising any of the functions conferred on him by virtue of this
Schedule.
18. An authorised officer may if necessary use reasonable force for
the purpose of exercising a power conferred on him by virtue of this
Schedule.
Information
19. (1) Information acquired by an authorised officer may be
supplied —
(a) to a customs officer;
(b) to a police officer;
(c) to a person specified by order of the Minister for use of a
kind specified in the order.
Part 7
Interpretation
Property
20. (1) Property is all property wherever situated and includes —
(a) money;
(b) all forms of property, real or personal, heritable or
moveable;
(c) things in action and other intangible or incorporeal
property.
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(2) Any reference to a person's property (whether expressed as
a reference to the property he holds or otherwise) is to be read as
follows.
(3) In relation to land, it is a reference to any interest which he
holds in the land.
(4) In relation to property other than land, it is a reference —
(a) to the property (if it belongs to him); or
(b) to any other interest which he holds in the property.
Obtaining and disposing of property
21. (1) References to a person disposing of his property include a
reference —
(a) to his disposing of a part of it; or
(b) to his granting an interest in it;
(or to both); and references to the property disposed of are references to
any property obtained on the disposal.
(2) If a person grants an interest in property of his which is
earmarked as terrorist property, the question whether the interest is also
earmarked is to be determined in the same manner as it is on any other
disposal of earmarked property.
(3) A person who makes a payment to another is to be treated
as making a disposal of his property to the other, whatever form the
payment takes.
(4) Where a person's property passes to another under a will or
intestacy or by operation of law, it is to be treated as disposed of by him
to the other.
(5) A person is only to be treated as having obtained his
property for value in a case where he gave unexecuted consideration if
the consideration has become executed consideration.
General interpretation
22. (1) In this Schedule —
"authorised officer" means a police officer, a customs officer or
an immigration officer;
"cash" has the meaning given by paragraph 1;
"criminal conduct" means conduct which constitutes an offence
in Bermuda, or would constitute an offence in Bermuda if it
occurred there;
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"forfeiture order" has the meaning given by paragraph 7;
"interest" means —
(a) in relation to land, any legal estate and any equitable
interest or power; and
(b) in relation to property other than land, includes any
right (including a right to possession of the property);
"part", in relation to property, includes a portion;
"property earmarked as terrorist property" is to be read in
accordance with Part 5;
"property obtained through terrorism" has the meaning given by
paragraph 11;
"terrorist cash" has the meaning given by paragraph 1;
"value" means market value.
(2) Paragraphs 20 and 21 and the following provisions apply
for the purposes of this Schedule.
(3) For the purpose of deciding whether or not property was
earmarked as terrorist property at any time (including times before the
commencement of this Act), it is to be assumed that this Schedule was in
force at that and any other relevant time.
(4) Proceedings against any person for an offence are
concluded when —
(a) the person is convicted or acquitted;
(b) the prosecution is discontinued; or
(c) the jury is discharged without a finding.
SCHEDULE 4 (section 16)
ACCOUNT MONITORING ORDERS
Interpretation
1. (1) In this Schedule, "financial institution" means —
(a) a bank or a deposit company licensed under the Banks
and Deposit Companies Act 1999;
(b) a credit union authorised to operate as such under the
Credit Unions Act 1982;
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(c) a person who is licensed to carry on an investment
business under the Investment Business Act 2001 or is
exempt therefrom;
(d) a person who is licensed to carry on an insurance or
reinsurance business under the Insurance Act 1978.
(2) The Minister may by order provide for a class of person —
(a) to be a financial institution for the purposes of this
Schedule; or
(b) to cease to be a financial institution for the purposes of
this Schedule.
(3) An institution which ceases to be a financial institution for
the purposes of this Schedule (whether by virtue of subparagraph
(2)(b) or otherwise) shall continue to be treated as a financial
institution for the purposes of any requirement under this Schedule
to provide information which relates to a time when the institution
was a financial institution.
(4) In this Schedule "the court" means the Supreme Court and
"judge" means a judge of that Court.
Account monitoring orders
2. (1) A judge may, on application made to him by a police officer,
make an account monitoring order if he is satisfied that —
(a) the order is sought for the purposes of a terrorist
investigation;
(b) the tracing of terrorist property is desirable for the
purposes of the investigation; and
(c) the order will enhance the effectiveness of the
investigation.
(2) The application for an account monitoring order must state
that the order is sought against the financial institution specified in the
application in relation to information which —
(a) relates to an account or accounts held at the institution
by the person specified in the application (whether solely
or jointly with another); and
(b) is of the description so specified.
(3) The application for an account monitoring order may
specify information relating to
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(a) all accounts held by the person specified in the
application for the order at the financial institution so
specified;
(b) a particular description, or particular descriptions, of
accounts so held; or
(c) a particular account, or particular accounts, so held.
(4) An account monitoring order is an order that the financial
institution specified in the application for the order must —
(a) for the period specified in the order;
(b) in the manner so specified;
(c) at or by the time or times so specified; and
(d) at the place or places so specified;
provide information of the description specified in the application to a
police officer.
(5) The period stated in an account monitoring order must not
exceed the period of 90 days beginning with the day on which the order
is made.
Applications
3. (1) An application for an account monitoring order may be
made ex parte to a judge in Chambers.
(2) The description of information specified in an application for
an account monitoring order may be varied by the police officer who
made the application or by any other police officer.
Discharge or variation
4. (1) An application to discharge or vary an account monitoring
order may be made to the court by —
(a) the police officer who applied for the order or any other
police officer;
(b) any person affected by the order.
(2) The court —
(a) may discharge the order;
(b) may vary the order.
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Rules of court
5. Rules of court may make provision as to the practice and
procedure to be followed in connection with proceedings relating to
account monitoring orders.
Effect of orders
6. (1) An account monitoring order has effect as if it were an order
of the court.
(2) An account monitoring order has effect in spite of any
restriction on the disclosure of information (however imposed).
Statements
7. (1) A statement made by a financial institution in response to
an account monitoring order may not be used in evidence against it in
criminal proceedings.
(2) But subparagraph (1) does not apply —
(a) in the case of proceedings for contempt of court;
(b) in the case of proceedings under section 14 where the
financial institution has been convicted of an offence
under any of sections 5 to 8;
(c) on a prosecution for an offence where, in giving
evidence, the financial institution makes a statement
inconsistent with the statement mentioned in sub-
paragraph (1).
(3) A statement may not be used by virtue of subparagraph
(2)(c) against a financial institution unless —
(a) evidence relating to it is adduced; or
(b) a question relating to it is asked;
by or on behalf of the financial institution in the proceedings arising out
of the prosecution.
