Advanced Search

Proceeds of Crime Amendment Act 2007

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$40 per month.
Proceeds of Crime Amendment Act 2007
PROCEEDS OF CRIME AMENDMENT ACT 2007



BERMUDA

2007 : 25

PROCEEDS OF CRIME AMENDMENT ACT 2007

Date of Assent: 22 June 2007
Operative Date: 15 November 2008


ARRANGEMENT OF SECTIONS

1 Short title and commencement
2 Interpretation
3 Section 7 of principal Act

amended
4 Section 37 of principal Act

amended
5 Section 39 of principal Act

amended
6 Section 41 of the principal Act

amended
7 Section 41A to 41G added to

principal Act
8 Section 44 of principal Act

amended
9 Section 45 of principal Act

amended
10 Sections 45A and 45B added

to principal Act
11 Section 46 of principal Act

amended
12 Section 47 of principal Act

amended

13 Section 49 of principal Act
amended

14 Section 50 of principal Act
amended

15 Section 52A and 52B added to
principal Act

16 Section 55A of principal Act
amended

17 Section 58 of principal Act
repealed and replaced

18 Section 64 of principal Act
amended

19 Section 65 of principal Act
amended

20 Miscellaneous amendments
21 Consequential amendments

SCHEDULE




1



PROCEEDS OF CRIME AMENDMENT ACT 2007


2 1989 Revision




WHEREAS it is expedient to make provision for widening the
scope of production orders and search warrants to include money
laundering investigations, for customer information orders, for the
avoidance of agreements in furtherance of money laundering, for a
defence to money laundering where overseas conduct is legal, for the
freezing of funds for minor and consequential amendments; and for
connected matters:

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:

Short title and commencement
1 This Act may be cited as the Proceeds of Crime Amendment Act
2007 and shall come into operation on such day as the Minister may
appoint by notice published in the Gazette.

Interpretation
2 In this Act, "principal Act" means the Proceeds of Crime Act
1997.

Section 7 of principal Act amended
3 Section 7 of the principal Act is amended ⎯

(a) by designating the existing section as subsection (1);

(b) by deleting the definition of “money laundering” and
substituting the following definition ⎯

“ “money laundering” means an act which ⎯

(a) constitutes an offence under section 43, 44 or
45;

(b) constitutes an attempt, conspiracy or
incitement to commit an offence specified in
paragraph (a);

(c) constitutes aiding, abetting, counselling or
procuring the commission of an offence
specified in paragraph (a); or

(d) would constitute an offence specified in
paragraph (a), (b) or (c) if done in Bermuda;

for these purposes, having possession of any property
shall be taken to be doing an act in relation to it; and
“money laundering offence” and “money laundering
investigation” have a corresponding meaning;”;

PROCEEDS OF CRIME AMENDMENT ACT 2007


3



(c) by inserting the following definitions in their proper
alphabetical place —

“banking institution” means an institution licensed
under the Banks and Deposit Companies Act 1999;

“confiscation investigation” means an investigation
into⎯

(a) whether a person has benefited from his
criminal conduct; or

(b) the extent or whereabouts of his benefit from
his criminal conduct;

“FIA” means the Financial Intelligence Agency
established under section 3 of the Financial
Intelligence Agency Act 2007;

“Minister” means the Minister responsible for justice;

“relevant institution” has the meaning given in
subsection (2)”;

(d) inserting the following subsections after subsection (1)


“ (2) In this Act “relevant institution” means ⎯

(a) a banking institution; or

(b) an institution falling within a class of
institutions designated as relevant
institutions by order of the Minister.

(3) The Minister may by order subject to negative
resolution procedure designate institutions for the
purposes of subsection (2).”.

Section 37 of principal Act amended
4 Section 37 of the principal Act is amended ⎯

(a) in subsection (1) by inserting the following paragraph
after paragraph (a) ⎯

“(aa) money laundering,”;

(b) in subsection (4)(a) by inserting “, or money laundering”
after “drug trafficking”.

Section 39 of principal Act amended
5 Section 39 of the principal Act is amended ⎯

(a) in subsection (1) by inserting the following paragraph
after paragraph (a) —

PROCEEDS OF CRIME AMENDMENT ACT 2007


4 1989 Revision



“(aa) money laundering,”;

(b) in subsection (3)(a) by inserting “ , or money laundering”
after “drug trafficking”;

(c) in subsection (4)(a) by inserting “, money laundering”
after “drug trafficking”;

(d) in subsection (4)(b) by inserting the following
subparagraph after subparagraph (ii)—

“(iia) to money laundering;”.

Section 41 of principal Act amended
6 Section 41 of the principal Act is amended by repealing
paragraph (a) of subsection (9).

Sections 41A to 41G added to principal Act
7 The principal Act is amended by inserting the following sections
next after section 41 —

“Customer information orders
41A (1) A magistrate may, on an application made to him by a
police officer make a customer information order if he is satisfied
that each of the requirements for the making of the order is
fulfilled.

(2) The application for a customer information order must
state that a person specified in the application is subject to a
confiscation investigation or a money laundering investigation.

(3) The application must also state that—

(a) the order is sought for the purposes of the
investigation;

(b) the order is sought against the relevant institution
or institutions specified in the application.

(4) An application for a customer information order may
specify—

(a) all relevant institutions, or

(b) a particular relevant institution.

(5) A customer information order is an order that a
relevant institution covered by the application for the order
must, on being required to do so by notice in writing given by a
police officer, provide any such customer information as it has
relating to the person specified in the application as soon as
practicable.

PROCEEDS OF CRIME AMENDMENT ACT 2007


5



(6) A relevant institution which is required to provide
information under a customer information order must provide
the information to a police officer in such manner as the officer
requires.

(7) If a relevant institution on which a requirement is
imposed by a notice given under a customer information order
requires the production of evidence of authority to give the
notice, it is not bound to comply with the requirement unless
evidence of the authority has been produced to it.

Meaning of customer information
41B (1) "Customer information", in relation to a person and a
relevant institution, is information whether the person holds, or
has held, an account or accounts at the relevant institution
(whether solely or jointly with another) and (if so) information as
to —

(a) the matters specified in subsection (2) if the
person is an individual;

(b) the matters specified in subsection (3) if the
person is a company or limited liability
partnership or a similar body incorporated or
otherwise established outside Bermuda, or a
partnership.

(2) The matters referred to in subsection (1) (a) are—

(a) the account number or numbers;

(b) the person's full name;

(c) his date of birth;

(d) his most recent address and any previous
addresses;

(e) the date or dates on which he began to hold the
account or accounts and, if he has ceased to hold
the account or any of the accounts, the date or
dates on which he did so;

(f) such evidence of his identity as was obtained by
the institution under or for the purposes of this
Act or any regulations thereunder;

(g) the full name, date of birth and most recent
address, and any previous addresses over the
most recent 10 years, of any person who holds, or
has held, an account at the institution jointly with
him;

PROCEEDS OF CRIME AMENDMENT ACT 2007


6 1989 Revision



(h) the account number or numbers of any other
account or accounts held at the institution to
which he is a signatory and details of the person
holding the other account or accounts;

(i) the source of the funds in the account.

(3) The matters referred to in subsection (1) (b) are—

(a) the account number or numbers;

(b) the person's full name;

(c) a description of any business which the person
carries on;

(d) the country or territory in which it is incorporated
or otherwise established;

(e) its registered office, and any previous registered
offices, under the Companies Act 1981 or
anything similar under corresponding legislation
of any country or territory outside Bermuda;

(f) its registered office, and any previous registered
offices, under the Limited Partnerships Act 1883
or anything similar under corresponding
legislation of any country or territory outside
Bermuda;

(g) the date or dates on which it began to hold the
account or accounts and, if it has ceased to hold
the account or any of the accounts, the date or
dates on which it did so;

(h) such evidence of its identity as was obtained by
the institution under or for the purposes of this
Act or any regulations thereunder;

(i) the full name, date of birth and most recent
address, and any previous addresses over the
most recent 10 years, of any person who is a
signatory to the account or any of the accounts;

(j) the source of the funds in the account.

(4) The Minister may by order subject to affirmative
resolution procedure provide for information of a description
specified in the order ⎯

(a) to be customer information; or

(b) no longer to be customer information.

PROCEEDS OF CRIME AMENDMENT ACT 2007


7



Requirements for making of customer information order
41C (1) These are the requirements for the making of a
customer information order.

(2) In the case of a confiscation investigation, there must
be reasonable grounds for suspecting that the person specified
in the application for the order has benefited from his criminal
conduct.

(3) In the case of a money laundering investigation, there
must be reasonable grounds for suspecting that the person
specified in the application for the order has committed a money
laundering offence.

(4) In the case of any investigation, there must be
reasonable grounds for believing that —

(a) customer information which may be provided in
compliance with the order is likely to be of
substantial value (whether or not by itself) to the
investigation for the purposes of which the order
is sought; and

(b) there must be reasonable grounds for believing
that it is in the public interest for the customer
information to be provided, having regard to the
benefit likely to accrue to the investigation if the
information is obtained.

Offences
41D (1) A relevant institution commits an offence if without
reasonable excuse it fails to comply with a requirement imposed
on it under a customer information order.

(2) A relevant institution guilty of an offence under
subsection (1) is liable on summary conviction to a fine of
$50,000.

(3) A relevant institution commits an offence if, in
purported compliance with a customer information order, it—

(a) makes a statement which it knows to be false in a
material particular; or

(b) recklessly makes a statement which is false or
misleading in a material particular.

(4) A relevant institution guilty of an offence under
subsection (3) is liable —

(a) on summary conviction, to a fine of $50,000, or

PROCEEDS OF CRIME AMENDMENT ACT 2007


8 1989 Revision



(b) on conviction on indictment, to a fine of
$100,000.

Statements
41E (1) A statement made by a relevant institution in response
to a customer information order may not be used in evidence
against it in criminal proceedings.

(2) But subsection (1) does not apply on a prosecution
for ⎯

(a) an offence under section 41D(1) or (3); or

(b) some other offence where, in giving evidence, the
relevant institution makes a statement
inconsistent with the statement mentioned in
subsection (1).

(3) A statement may not be used by virtue of subsection
(2)(b) against a relevant institution unless —

(a) evidence relating to it is adduced; or

(b) a question relating to it is asked;

by or on behalf of the relevant institution in the proceedings
arising out of the prosecution.

Disclosure of information
41F A customer information order has effect notwithstanding
any restriction on the disclosure of information (however
imposed).

Supplementary
41G (1) An application to discharge or vary a customer
information order may be made to the magistrate by —

(a) a police officer;

(b) any person affected by the order.

(2) The magistrate may —

(a) discharge the order;

(b) vary the order.

(3) Magistrates’ Court Rules may make provision as to the
practice and procedure to be followed in connection with
proceedings relating to customer information orders.

PROCEEDS OF CRIME AMENDMENT ACT 2007


9



Section 44 of principal Act amended
8 Section 44 of the principal Act is amended by deleting “ a police
officer” and “the police officer” where they occur in subsections (3), (4)
and (5) and substituting in each case “the FIA”.

Section 45 of principal Act amended
9 Section 45 of the principal Act is amended ─

(a) by deleting “a police officer” and “the police officer”
where they occur in subsections (5), (7) and (8)
and substituting in each case “the FIA”;

(b) in subsection (9) by deleting “No police officer or”
and substituting “Neither the FIA nor any”.

Sections 45A and 45B added to principal Act
10 The principal Act is amended by adding the following sections
after section 45 ─

“Agreement in furtherance of money laundering void
45A Any agreement entered into for the purposes of facilitating
the commission of money laundering is void.

Money laundering: defence when overseas conduct is legal
45B (1) A person does not commit an offence under section 43,
44 or 45 if —

(a) he knows or believes on reasonable grounds that
the relevant criminal conduct occurred in a
particular country or territory outside Bermuda;
and

(b) the relevant criminal conduct —

(i) was not, at the time it occurred, unlawful
under the criminal law then applying in that
country or territory, and

(ii) is not of a description prescribed by an order
made by the Minister.

(2) The Minister may by order subject to negative
resolution procedure prescribe conduct for the purpose of
subsection (1)(b)(ii).”

Section 46 of principal Act amended
11 Section 46 of the principal Act is amended —

(a) by deleting “a police officer” and “the police officer”
where they occur in subsections (1), (2) and (5) and
substituting in each case “the FIA”.

PROCEEDS OF CRIME AMENDMENT ACT 2007


10 1989 Revision



(b) in subsection (2)(a) by deleting “drug trafficking” and
substituting “criminal conduct”.

Section 47 of principal Act amended
12 Section 47 of the principal Act is amended in subsection (2)(a) by
deleting “a police officer” and substituting “the FIA”.

Section 49 of principal Act amended
13 Section 49 of the principal Act is amended ─

(a) in subsection (2)—

(i) by deleting “Financial Secretary” and substituting
“Solicitor General”;

“(ia) by deleting “Attorney General” and
substituting “Financial Secretary”;

(ii) by inserting the following paragraph after paragraph
(d) —

“(da) a representative of the FIA,”;

(iii) by deleting “General Manager” and substituting
“Chief Executive Officer”;

(b) in subsection (4) ─

(i) by repealing paragraph (a) and substituting the
following ⎯

“(a) require such financial and other institutions
(being institutions engaged in the financial
services industry) and such other persons as
may be prescribed, to establish and maintain
procedures relating to the identification of
clients, the keeping of records, the making of
reports, the vetting of employees, the
verification of the effective design and
operation of anti-money laundering systems
and the training of employees;”;

(ii) by inserting the following paragraph after
paragraph (a) —

“(aa) require professional legal advisers and
accountants in independent practice who
engage in financial transactions for their
clients falling within a class of activity
specified in subsection (5), to establish and
maintain procedures relating to the
identification of clients, the keeping of
records, the making of reports, the vetting

PROCEEDS OF CRIME AMENDMENT ACT 2007


11



of employees, verification of the effective
design and operation of anti-money
laundering systems and the training of
employees;”;

(iii) by inserting the following subsections after
subsection (4) ⎯

“ (5) For the purposes of paragraph (aa) of
subsection (4) the following are specified
activities ⎯

(a) buying and selling real property;

(b) managing of client monies, securities
and other assets;

(c) management of bank, savings or
securities accounts;

(d) organisation of contributions for the
creation, operation or management
of companies;

(e) creation, operation or management
of legal persons or arrangements,
and buying and selling business
entities.

(6) For the purposes of paragraph (aa) of
subsection (4) ⎯

(i) a professional legal adviser is a
barrister and attorney who is a
member of the Bermuda Bar
Association;

(ii) a professional accountant is a
member of the Institute of
Chartered Accountants of
Bermuda.”.

Section 50 of principal Act amended
14 Section 50 of the principal Act is amended by inserting the
following subsections after subsection (2) ─

“(2A) The period of forty-eight hours mentioned in
subsection (2) shall be calculated in accordance with subsection
(2B).

(2B) In calculating the period of forty-eight hours in
accordance with this subsection no account shall be taken of —

(a) a Saturday; or

PROCEEDS OF CRIME AMENDMENT ACT 2007


12 1989 Revision



(b) a public holiday within the meaning of the Public
Holidays Act 1947.”.

Section 52A added to principal Act
15 The principal Act is amended by adding the following section
after section 52 —

“Freezing of funds
52A (1) An application for the freezing of funds may be made
to a magistrate by a police officer in the course of a confiscation
investigation or an investigation into money laundering.

(2) Where the magistrate is satisfied that a person by, for
or on behalf of whom any funds are held is suspected of having
benefited from criminal conduct or having committed a money
laundering offence, the magistrate may make an order requiring
the relevant institution that holds those funds not to make them
available to any person.

(3) An order made under subsection (2) shall specify a
period, not exceeding seven days, for which the order is to have
effect.

(4) The period of seven days mentioned in subsection (3)
shall be calculated in accordance with subsection (5).

(5) In calculating the period of seven days in accordance
with this subsection no account shall be taken of —

(a) a Saturday; or

(b) a public holiday within the meaning of the Public
Holidays Act 1947.

(6) In this section “funds” means monies deposited with
designated institution.

(7) Magistrates’ Court Rules may make provision as to the
practice and procedure to be followed in connection with
proceedings relating to orders under this section.”.

Section 55A of principal Act amended
16 Section 55A(3) of the principal Act is amended by inserting the
following paragraph after paragraph (a)(iii) —

“(iv) training of officials in the effective implementation of the
provisions of this Act in relation to money laundering and in
relation to terrorist financing within the meaning of sections
5 to 8 of the Anti-Terrorism (Financial and Other Measures)
Act 2004.”.

PROCEEDS OF CRIME AMENDMENT ACT 2007


13



Section 58 of principal Act repealed and replaced
17 Section 58 of the principal Act is repealed and the following
section substituted —

“Duty of confidentiality
58 (1) Except as provided in this section, no person who
under or for the purposes of this Act receives information from
any person shall disclose it without the consent of the person to
whom it relates ( and if different) the person from whom it was
received as aforesaid..

(2) This section does not apply to information which at
the time of the disclosure is or has already been made available
to the public from other sources, or to information in the form of
a summary or collection of information so framed as not to
enable information relating to any particular person to be
ascertained from it.

(3) A person who contravenes subsection (1) shall be
guilty of an offence and liable on summary conviction to a fine of
$50,000 or to imprisonment for two years or to both.

(4) Subsection (1) does not preclude the disclosure of
information in any case in which disclosure is for the purpose of
enabling or assisting the Bermuda police service or the FIA to
discharge their functions under any statutory provision.

(5) Subsection (1) does not preclude the disclosure of
information to the Minister of Finance or to the Bermuda
Monetary Authority in any case in which the disclosure is for the
purpose of enabling or assisting the Minister of Finance or the
Authority to discharge their functions under any statutory
provisions.”.

Section 64 of principal Act amended
18 Section 64 of the principal Act is amended by inserting the
following entries in their alphabetical place —

“customer information orders section 41A

freezing of funds section 52A”.

Section 65 of principal Act amended
19 Section 65 of the principal Act is amended by repealing
subsection (1) and substituting the following ─

“(1) The Minister may make regulations prescribing
anything which may be prescribed under this Act and generally
for carrying out the purposes and provisions of this Act.”.

PROCEEDS OF CRIME AMENDMENT ACT 2007


14 1989 Revision



Miscellaneous amendments
20 The principal Act is amended by deleting “Attorney General” in
every place where it occurs in the Act and substituting “Director of
Public Prosecutions”.

(2) The principal Act is further amended as set out in the
Schedule.

Consequential amendments
21 The Bermuda Monetary Authority Act 1969 is amended in
section 3(1) by inserting the following paragraph after paragraph (bc)—

“(bd) to monitor compliance with the reporting and
other obligations of regulated persons under the
Proceeds of Crime Act 1997, regulations and
orders made thereunder, and the Anti-
Terrorism (Financial and Other Measures) Act
2004, regulations and orders made thereunder;
and in this paragraph “regulated person” means
a person that is licensed or registered by the
Authority under any enactment;”.



SCHEDULE (section 20(2))
AMENDMENTS RELATING TO REFERENCES TO MINISTER



Provision amended Amendment

29(5)(a)(vi) for “Minister of Finance” there is substituted
“Minister”

40(ii)(b) for “Minister responsible for the police” there is
substituted “Minister”

41(9)(c) for “Minister of Finance” there is substituted
“Minister”

49(1)(a) for “Minister of Finance” there is substituted
“Minister”

49(2)(f) for “Minister of Finance” there is substituted
“Minister”

49(3) for “Minister of Finance” there is substituted
“Minister”

53(1) for “Minister responsible for the police” there is
substituted “Minister”

PROCEEDS OF CRIME AMENDMENT ACT 2007


15



55A(3) for “Minister of Finance” there is substituted
“Minister”

55B(3) for “Minister of Finance” there is substituted
“Minister