Proceeds of Crime Regulations (Supervision and Enforcement) Act 2008
PROCEEDS OF CRIME REGULATIONS (SUPERVISION AND
ENFORCEMENT) ACT 2008
BERMUDA
2008 : 49
PROCEEDS OF CRIME REGULATIONS (SUPERVISION AND
ENFORCEMENT) ACT 2008
Date of Assent: 23 December 2008
Operative Date: 1 January 2009
ARRANGEMENT OF SECTIONS
PART 1
PRELIMINARY
1 Short title
2 Interpretation
PART 2
SUPERVISION
3 Supervisory authorities
4 Designated professional bodies
5 Duties of supervisory
authorities
PART 3
SUPERVISION BY BMA
CHAPTER 1
FUNCTIONS OF THE BMA
6 Functions of the BMA
7 Statement of principles
1
8 Duty to maintain register
CHAPTER 2
REGISTRATION OF NON-LICENSED
PERSONS
9 Non-licensed persons must be
registered
10 Application for registration
11 Determination of application
12 Cancellation of registration
13 Procedure for cancelling
registration
14 Fees
15 Appeals: registration
CHAPTER 3
INFORMATION GATHERING
POWERS: AML/ATF REGULATED
FINANCIAL INSTITUTIONS
16 Power to require information
and documents
17 Site visits
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18 Entry to premises under
warrant
19 Failure to comply with
information requirement
CHAPTER 4
CIVIL PENALTIES
20 Power to impose civil penalties
on AML/ATF regulated
financial institutions
21 Power to publish decision to
impose penalty
22 Procedure for imposing civil
penalties
23 Appeals: penalties
24 Payment of penalties towards
costs of BMA
PART 4
APPEAL TRIBUNAL
25 Appeal tribunal
26 Powers of tribunal
27 Procedure and evidence
28 Decisions of tribunal
29 Costs of appeal
30 Appeal to Supreme Court
PART 5
SUPPLEMENTARY
Restricted information
31 Restricted information
32 Permitted disclosure
Criminal offences
33 Offences relating to
registration
34 Offences relating to appeal
tribunal
35 Offence of disclosing restricted
information
Final provisions
36 Notices
37 Regulations and orders
38 Transitional
39 Consequential amendments
40 Correction of errors relating to
offences
41 Commencement
SCHEDULE
Appeal tribunal
WHEREAS it is expedient to make provision for the purpose of
requiring supervisory authorities to monitor certain persons and take
measures to secure compliance by such persons with regulations made
under the Proceeds of Crime Act 1997 and the Anti-Terrorism (Financial
and Other Measures) Act 2004; to provide powers for the Bermuda
Monetary Authority to discharge effectively its functions as supervisory
authority for certain financial institutions, including power to impose
civil penalties; to establish an appeal tribunal; to correct errors in the
Anti-Terrorism (Financial and Other Measures) Act 2004 and the
Proceeds of Crime (Anti-Money Laundering and Anti-Terrorist Financing)
Regulations 2008, and for connected matters:
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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:
PART I
PRELIMINARY
Short title
1 This Act may be cited as the Proceeds of Crime Regulations
(Supervision and Enforcement) Act 2008.
Interpretation
2 (1) In this Act, unless the context otherwise requires,—
“AML/ATF regulated financial institution” means a person who⎯
(a) carries on deposit-taking business within the meaning of
section 4 of the Banks and Deposit Companies Act 1999;
(b) carries on investment business within the meaning of
section 3 of the Investment Business Act 2003;
(c) is an insurer (and not a reinsurer) registered under
section 4 of the Insurance Act 1978 who carries on long
term business falling within paragraph (a) or (c) of the
definition of “long-term business” in section 1(1) of the
Insurance Act 1978;
(d) is an insurance manager or broker registered under
section 10 of the Insurance Act 1978 in so far as he acts
as a manager or broker in connection with long term
business (other than reinsurance business) falling within
paragraph (a) or (c) of the definition of “long-term
business” in section 1(1) of the Insurance Act 1978;
(e) carries on the business of a fund administrator within
the meaning of section 2(2) of the Investment Funds Act
2006;
(f) carries on money service business within the meaning of
section 20AA of the Bermuda Monetary Authority Act
1969;
(g) carries on trust business within the meaning of section
9(3) of the Trusts (Regulation of Trust Business) Act
2001 and is not otherwise exempted by or under
paragraph 3 of the Trusts (Regulation of Trust Business)
Exemption Order 2002; or
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(h) is the operator of an investment fund within the
meaning of section 2 of the Investment Funds Act 2006;
“AML/ATF Regulations” means the Proceeds of Crime (Anti-
Money Laundering and Anti-Terrorist Financing) Regulations
2008, and any subsequent regulations made under section
49(3) of the Proceeds of Crime Act 1997 or section 12A of the
Anti-Terrorism (Financial and other Measures) Act 2004;
“appeal tribunal” means the tribunal established under section
25;
"BMA" means the Bermuda Monetary Authority established
under the Bermuda Monetary Authority Act 1969;
“designated professional body” means a professional body
designated by the Minister under section 4;
“licensed person” means a person who is for the time being
licensed under any of the regulatory Acts;
“Minister” means the minister responsible for justice;
“non-licensed person” means an AML/ATF regulated financial
institution which is not a licensed person;
“officer”, except in sections 16(9) and 19(3), means a duly
authorised officer of the BMA, and includes a member of its
staff and an agent of the BMA;
“professional body” means any body which regulates or is
representative of any trade, profession, business or
description of employment;
“regulatory Acts” means—
(a) Insurance Act 1978;
(b) Credit Unions Act 1982;
(c) Banks and Deposit Companies Act 1999;
(d) Trusts (Regulation of Trust Business) Act 2001;
(e) Investment Business Act 2003;
(f) Investment Funds Act 2006; and
(g) Money Service Business Regulations 2007;
“relevant person” means a person to whom the AML/ATF
Regulations apply;
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“supervisory authority” in relation to any relevant person, means
the supervisory authority specified for such a person by
section 3.
(2) The Minister may, after consulting the National Anti-Money
Laundering Committee, by order amend the definition of AML/ATF
regulated financial institution.
PART 2
SUPERVISION
Supervisory authorities
3 The following bodies are supervisory authorities for the purposes
of this Act—
(a) the BMA for AML/ATF regulated financial institutions
that carry on business in or from Bermuda;
(b) a designated professional body for the relevant persons
regulated by it.
Designated professional bodies
4 (1) The Minister may by order designate a professional body as
a supervisory authority for the purposes of section 3(b).
(2) The Minister must not designate a professional body unless
satisfied that it is able to discharge effectively the duties specified under
section 5.
Duties of supervisory authorities
5 (1) A supervisory authority must effectively monitor the
relevant persons for whom it is the supervisory authority and take
necessary measures for the purpose of securing compliance by such
persons with the AML/ATF Regulations.
(2) A supervisory authority must issue from time to time
guidance as to compliance with—
(a) the AML/ATF Regulations;
(b) Part V of the Proceeds of Crime Act 1997; and
(c) paragraph 1 of Schedule 1 to the Anti-Terrorism
(Financial and Other Measures) Act 2004.
(3) A supervisory authority must, as soon as practicable after
the end of each of its financial years,—
(a) make a report on its activities under this Act in that year
to the Minister; and
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(b) publish the report in such manner as it thinks
appropriate.
(4) A supervisory authority which, in the course of carrying out
any of its functions, knows or suspects that a person is engaging, or has
engaged, in money laundering or terrorist financing must as soon as
practicable inform the Financial Intelligence Agency.
(5) A disclosure made under subsection (4) is not to be taken to
breach any restriction, however imposed, on the disclosure of
information.
PART 3
SUPERVISION BY THE BMA
CHAPTER 1
FUNCTIONS OF BMA
Functions of BMA
6 (1) The BMA has the functions conferred on it by section 5 in
relation to AML/ATF regulated financial institutions.
(2) For the avoidance of doubt, nothing in this Act precludes
the BMA from exercising its supervisory powers over licensed persons
under the Bermuda Monetary Authority Act 1969 and the regulatory
Acts in relation to a failure to comply with the AML/ATF Regulations.
Statement of principles
7 (1) The BMA must, as soon as practicable after the coming into
force of this Act, publish in such manner as it thinks fit a statement of
principles in accordance with which it is acting or proposing to act—
(a) in exercising its power to cancel the registration of a
non-licensed person under section 12;
(b) in exercising its powers in relation to AML/ATF
regulated financial institutions to obtain information, to
require the attendance of persons and to require
production of documents under sections 16 to 18;
(c) in exercising its powers—
(i) to impose penalties against AML/ATF regulated
financial institutions under section 20; and
(ii) to publish decisions to do so under section 21;
and
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(d) in applying any amounts paid to it by way of penalties
under Chapter 4 in accordance with the duty in section
24(3).
(2) If the BMA makes a material change to the principles it
must publish a statement of the change or the revised statement of
principles in the same manner as it published the statement under
subsection (1).
Duty to maintain the register
8 (1) For the purpose of discharging its duties under section 5,
the BMA must establish and maintain in such form as it may determine
a register of AML/ATF regulated financial institutions, comprising—
(a) the licensed persons which are AML/ATF regulated
financial institutions; and
(b) the non-licensed persons which are currently registered
under Chapter 2.
(2) The BMA must, from time to time, publish the register in
such manner as it considers appropriate.
CHAPTER 2
REGISTRATION OF NON-LICENSED PERSONS
Non-licensed persons must be registered
9 A non-licensed person must not carry on business unless he is
included in the register.
Application for registration
10 (1) An application to the BMA for registration must be made in
accordance with this section.
(2) An application must be in such form and provide such
information as the BMA may specify.
(3) The information which the BMA may specify shall include—
(a) the applicant’s name and (if different) the name of the
business;
(b) the applicant’s address;
(c) the nature of the business; and
(d) the name of the reporting officer, if any, appointed for
the purposes of the Proceeds of Crime (Anti-Money
Laundering and Anti-Terrorist Financing) Regulations
2008.
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(4) At any time after receiving an application and before
determining it, the BMA may require the applicant to provide, within 28
days beginning with the date of being requested to do so, such further
information as it reasonably considers necessary to enable it to
determine the application.
(5) If at any time after the applicant has provided the BMA with
any information under subsection (2) or (4)—
(a) there is a material change affecting any matter
contained in that information; or
(b) it becomes apparent to that person that the information
contains a significant inaccuracy,
it must provide the BMA with details of the change or, as
the case may be, a correction of the inaccuracy within 28
days beginning with the date of the occurrence of the
change (or the discovery of the inaccuracy) or within such
later time as may be agreed with the BMA.
(6) The obligation in subsection (5) applies also to material
changes or significant inaccuracies affecting any matter contained in any
supplementary information provided pursuant to that subsection.
(7) Any information to be provided to the BMA under this
section shall be in such form or verified in such manner as it may
specify.
Determination of application
11 (1) The BMA may refuse to register an applicant only if—
(a) any requirement of, or imposed under, section 10 has
not been complied with;
(b) it appears to the BMA that any information provided
pursuant to section 10 is false or misleading in a
material particular; or
(c) the applicant has failed to pay the application fee
imposed under section 14.
(2) The BMA must, within three months beginning either with
the date on which it receives the application or, where applicable, with
the date on which it receives any further information required under
section 10(4), give the applicant notice of—
(a) its decision to register the applicant; or
(b) the following matters—
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(i) its decision not to register the applicant;
(ii) its reasons for its decision; and
(iii) the right to appeal to the appeal tribunal.
(3) The BMA must include the applicant in the register as soon
as practicable after notifying him of its decision to do so.
(4) A person whose name is included in the register must not,
solely by virtue of such inclusion, represent to the public at large that it
is authorised, licensed, registered or otherwise regulated by the BMA.
Cancellation of registration
12 The BMA may cancel the registration of a non-licensed person
if—
(a) at any time after registration, it appears to the BMA that
it would have had grounds to refuse registration under
section 11(1)(b);
(b) the non-licensed person is in breach of a material
provision of the AML/ATF regulations;
(c) the non-licensed person has failed to comply with any
obligation imposed by or under this Act; or
(d) the BMA is satisfied that the non-licensed person has
ceased to carry on business.
Procedure for cancelling registration
13 (1) Subject to subsection (4), where the BMA proposes to cancel
a non-licensed person’s registration it must give notice to the non-
licensed person (a “warning notice”) indicating—
(a) the proposed date from which the cancellation is to take
effect;
(b) the reasons for its decision; and
(c) the right to make representations within a specified
period (which must not be less than 28 days).
(2) After considering any representations made by the non-
licensed person, the BMA must decide within three months of the end of
the period specified in subsection (1)(c) whether to cancel the non-
licensed person’s registration.
(3) The BMA must give the non-licensed person notice (a
“decision notice”)—
(a) of the decision not to cancel its registration; or
(b) of the following matters—
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(i) the decision to cancel its registration;
(ii) the reasons for that decision; and
(iii) the right to appeal to the appeal tribunal.
(4) Subsections (1) to (3) and section 15 do not apply if the
cancellation is under section 12(d) and either—
(a) the non-licensed person confirms, in such manner as
the BMA may determine, that it—
(i) has ceased to carry on business; and
(ii) has no objection to the cancellation; or
(b) the non-licensed person is a company which has been
struck off the register of companies by the Registrar of
Companies under section 261 of the Companies Act
1981 (Registrar may strike defunct company off register).
Fees
14 (1) An application for registration under section 10 must be
accompanied by the application fee.
(2) A non-licensed person must pay to the BMA an annual
fee—
(a) on registration; and
(b) on or before 30 April in every year following the year of
registration.
(3) The first annual fee payable on registration under
subsection (2)(a) shall be a proportion of the annual fee from the period
from the date of registration to 31 December next following, counting
part of a month as one month for the purpose of calculating the annual
fee.
(4) The application fee and annual fee shall be of such amounts
as may be prescribed under section 20BB of, and the Fourth Schedule
to, the Bermuda Monetary Authority Act 1969.
(5) The BMA may recover any fee payable under this Act as a
debt owing to it in any court of competent jurisdiction.
Appeals: registration
15 (1) A person may appeal a decision by the BMA—
(a) not to register an applicant in the register maintained
under section 8;
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(b) to cancel the registration of a non-licensed person under
section 12.
(2) An appeal from a decision by the BMA shall lie to the appeal
tribunal.
(3) A decision to cancel the registration of a non-licensed
person shall not have effect―
(a) until the end of the period within which the appeal can
be brought; and
(b) if such an appeal is brought, until it is determined or
withdrawn.
CHAPTER 3
INFORMATION GATHERING POWERS: AML/ATF REGULATED
FINANCIAL INSTITUTIONS
Power to require information and documents
16 (1) An officer may, by notice in writing to an AML/ATF regulated
financial institution or to a person connected with an AML/ATF
regulated financial institution, require the institution or connected
person, as the case may be—
(a) to provide such information as may be specified in the
notice;
(b) to produce such recorded information as may be so
specified; or
(c) to attend before an officer at a time and place specified
in the notice and answer questions.
(2) For the purposes of subsection (1), a person is connected
with an AML/ATF regulated financial institution if he is, or has at any
time been, in relation to the institution, a person specified in subsection
(9).
(3) An officer may exercise powers under this section only if the
information sought to be obtained as a result is reasonably required in
connection with the exercise by the BMA of its functions under this Act.
(4) Where an officer requires information to be provided or
produced pursuant to subsection (1)(a) or (b)—
(a) the notice must set out the reasons why the officer
requires the information to be provided or produced; and
(b) such information must be provided or produced—
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(i) before the end of such reasonable period as may
be specified in the notice; and
(ii) at such place as may be so specified.
(5) In relation to information recorded otherwise than in legible
form, the power to require production of it includes a power to require
the production of a copy of it in legible form or in a form from which it
can readily be produced in visible and legible form.
(6) The production of a document does not affect any lien
which a person has on the document.
(7) A person shall not be required under this section to provide
or produce information or to answer questions which he would be
entitled to refuse to provide, produce or answer on grounds of legal
professional privilege in proceedings in the Supreme Court, except that
an attorney may be required to provide the name and address of his
client.
(8) Section 41E of the Proceeds of Crime Act 1997 (statements
made in response to customer information orders may not be used in
criminal proceedings except in certain circumstances) applies with
appropriate modifications to statements made by a person in compliance
with a requirement imposed on him under subsection (1)(c) as it applies
to statements made by a relevant institution in response to a customer
information order.
(9) For the purposes of subsection (2), the following are
connected persons—
(a) if the AML/ATF regulated financial institution is a body
corporate, a person who is—
(i) an officer or manager of the body corporate or of
a holding company of the body corporate;
(ii) an employee of the body corporate;
(iii) an agent of the body corporate or of a holding
company of the body corporate;
(b) if the AML/ATF regulated financial institution is a
partnership, a person who is a member, manager,
employee or agent of the partnership;
(c) if the AML/ATF regulated financial institution is an
unincorporated association of persons which is not a
partnership, a person who is an officer, manager,
employee or agent of the unincorporated association.
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(d) if the AML/ATF regulated financial institution is an
individual, a person who is an employee or agent of that
individual.
(10) In subsection (9)—
“holding company” has the meaning given in section 86 of the
Companies Act 1981;
“officer” includes a director, secretary or senior executive of the
body corporate or unincorporated association, regardless of
job title.
Site visits
17 (1) Subsection (2) applies where an officer has reasonable
cause to believe that any premises are being used by an AML/ATF
regulated financial institution in connection with its business.
(2) The officer may at any reasonable time, on producing
evidence of his authority,—
(a) enter the premises;
(b) inspect the premises;
(c) observe the carrying on of business;
(d)inspect any recorded information found on the premises
and take copies of, or make extracts from, any such
information;
(e) require any person on the premises to provide an
explanation of any recorded information or to state
where it may be found.
(3) An officer may exercise powers under this section only if the
information sought to be obtained as a result is reasonably required in
connection with the exercise by the BMA of its functions under this Act.
Entry to premises under warrant
18 (1) A magistrate may issue a warrant under this subsection if
satisfied on information on oath given by an officer that there are
reasonable grounds for believing that condition A, B or C is satisfied.
(2) Condition A is—
(a) that there is on the premises specified in the warrant
recorded information in relation to which a requirement
could be imposed under section 16(1)(b); and
(b) that if such a requirement were to be imposed —
(i) it would not be complied with; or
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(ii) the recorded information to which it relates
would be removed, tampered with or destroyed.
(3) Condition B is—
(a) that a person on whom a requirement has been imposed
under section 16(1)(b) has failed to comply with it
(whether wholly or in part); and
(b) that there is on the premises specified in the warrant
recorded information which has been required to be
produced.
(4) Condition C is—
(a) that an officer has been obstructed in the exercise of a
power under section 17(2); and
(b) that there is on the premises specified in the warrant
recorded information which could be inspected under
section 17(2)(d).
(5) A magistrate may issue a warrant under this subsection if
satisfied on information on oath given by an officer that there are
reasonable grounds for suspecting that—
(a) an offence under this Act has been, is being, or is about
to be, committed by an AML/ATF regulated financial
institution; and
(b) there is on the premises specified in the warrant
recorded information relevant to whether that offence
has been, is being, or is about to be, committed.
(6) A warrant issued under subsection (1) or (5) shall authorise
any police officer not below the rank of inspector together with one or
more officers of the BMA and such other persons as the circumstances
may require—
(a) to enter the premises specified in the warrant;
(b) to search the premises and take possession of any
recorded information or anything appearing to be
recorded information specified in the warrant or to take,
in relation to any such recorded information, any other
steps which may appear to be necessary for preserving it
or preventing interference with it;
(c) to take copies of, or extracts from, any recorded
information specified in the warrant;
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(d) to require any person on the premises to provide an
explanation of any recorded information appearing to be
of the kind specified in the warrant or to state where it
may be found;
(e) to use such force as may reasonably be necessary.
Failure to comply with information requirement
19 (1) If, on an application made by the BMA it appears to the
Supreme Court that a person (the “information defaulter”) has failed to
do something that he was required to do under section 16(1), the Court
may make an order under this section.
(2) An order under this section may require the information
defaulter—
(a) to do the thing that he failed to do within such period as
may be specified in the order;
(b) otherwise to take such steps to remedy the
consequences of the failure as may be so specified.
(3) If the information defaulter is a body corporate, a
partnership or an unincorporated body of persons which is not a
partnership, the order may require any officer of the body corporate,
partnership or unincorporated body, who is (wholly or partly) responsible
for the failure to meet such costs of the application as are specified in the
order.
(4) In subsection (3), “officer” includes a director, secretary or
senior executive of the body corporate, partnership or unincorporated
body, regardless of job title.
CHAPTER 4
CIVIL PENALTIES
Power to impose civil penalties on AML/ATF regulated financial
institutions
20 (1) The BMA may impose a penalty of such amount not
exceeding $500,000 as it considers appropriate on an AML/ATF
regulated financial institution which fails to comply with any
requirement of the AML/ATF Regulations specified in subsection (3).
(2) For the purposes of subsection (1), “appropriate” means
effective, proportionate and dissuasive.
(3) The following provisions of the Proceeds of Crime (Anti-
Money Laundering and Anti-Terrorist Financing) Regulations 2008 are
specified for the purposes of subsection (1)—
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regulation 6(1), (2) and (3) (customer due diligence
measures);
regulation 7(1) and (3) (ongoing monitoring);
regulation 8(2) (timing of verification);
regulation 9(1)(a), (b) and (c) (requirement to cease
transactions etc);
regulation 11(1) (enhanced customer due diligence);
regulation 12(1) and (2) (branches and subsidiaries);
regulation 13(1), (2), (3) and (4) (shell banks, anonymous
accounts etc);
regulation 15(1), (4), (5), (6) and (7) (record-keeping);
regulation 16(1), (3) and (4) (systems);
regulation 17(1) (internal reporting procedures);
regulation 18(1) (training etc).
(4) The Minister may by order amend subsection (3) to add to,
or remove from, the list any provisions of the AML/ATF regulations.
(5) The BMA must not impose a penalty where there are
reasonable grounds for it to be satisfied that the AML/ATF regulated
financial institution took all reasonable steps and exercised all due
diligence to ensure that the requirement would be complied with.
(6) In deciding whether an AML/ATF regulated financial
institution has failed to comply with a requirement of the regulations, the
BMA must consider whether the institution followed any relevant
guidance which was at the time—
(a) issued by the BMA;
(b) approved by the Minister; and
(c) published in the Gazette.
(7) In this Chapter, “penalty” means a penalty imposed under
subsection (1).
Power to publish decision to impose penalty
21 (1) The BMA may publish a decision to impose a penalty on an
AML/ATF regulated financial institution in such manner as it considers
appropriate.
(2) But the BMA must not publish such a decision—
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(a) before notifying the institution in question; or
(b) pending an appeal under section 23.
Procedure for imposing civil penalties
22 (1) Where the BMA proposes to impose a penalty it must give
the AML/ATF regulated financial institution notice (a “warning notice”)
of—
(a) its proposal to impose the penalty and the proposed
amount;
(b) the reasons for imposing the penalty; and
(c) the right to make representations to the BMA within a
specified period (which may not be less than 28 days).
(2) After considering any representations made by the
AML/ATF regulated financial institution, the BMA must decide, within
three months from the end of the period specified in subsection (1)(c)
whether to impose a penalty.
(3) The BMA must give the AML/ATF regulated financial
institution notice (a “decision notice”) of—
(a) its decision not to impose a penalty; or
(b) its decision to impose a penalty and—
(i) the amount of the penalty;
(ii) the reasons for its decision; and
(iii) the right to appeal to the appeal tribunal.
Appeals: penalties
23 (1) A person may appeal a decision by the BMA to impose a
penalty.
(2) An appeal from a decision by the BMA shall lie to the appeal
tribunal.
(3) A decision appealed against under this section shall not
have effect―
(a) until the end of the period within which the appeal can
be brought; and
(b) if such an appeal is brought, until it is determined or
withdrawn.
Payment of penalties towards costs of BMA
24 (1) A penalty is payable to the BMA.
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(2) The BMA may recover any penalty as a debt owing to it in
any court of competent jurisdiction.
(3) The BMA must apply amounts paid to it by way of penalties
towards the costs of carrying out its functions of monitoring AML/AFT
regulated financial institutions and securing their compliance with the
AML/ATF Regulations.
(4) But when deciding—
(a) whether to impose a penalty; and
(b) the amount of any penalty,
the BMA must not take account of the costs which it incurs, or
expects to incur, in carrying out those functions.
(5) The BMA’s annual report under section 5(3) must—
(a) state the total amount of any penalties paid to it; and
(b) indicate how that amount was, or will be, applied in
accordance with the duty imposed by subsection (3).
PART 4
APPEAL TRIBUNAL
Appeal tribunal
25 (1) There shall be an appeal tribunal for the purposes of this
Act.
(2) The Schedule has effect as to the appointment of the appeal
tribunal and other matters relating to the appeal tribunal.
Powers of tribunal
26 The appeal tribunal has the power—
(a) to quash or vary a decision of the BMA not to register, or
to cancel the registration of, a non-licensed person;
(b) to quash or vary a decision of the BMA to impose a
penalty under section 20, including the power to reduce
any penalty to such amount (including nil) as the
tribunal think proper; and
(c) to substitute their own decision for any decision
quashed on appeal.
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Procedure and evidence
27 The Minister may make regulations with respect to appeals and
those regulations may in particular make provision⎯
(a) as to the period within which and the manner in which
such appeals are to be brought;
(b) as to the manner in which such appeals are to be
conducted, including provision for any hearing to be
held in private and as to the persons entitled to appear
on behalf of the parties;
(c) for requiring an appellant or the BMA to disclose or
allow the inspection of documents in his or its custody
or under his or its control;
(d) for requiring any person, on tender of the necessary
expenses of his attendance, to attend and give evidence
or produce documents in his custody or under his
control and for authorising the administration of oaths
to witnesses;
(e) for enabling an appellant to withdraw an appeal or the
BMA to withdraw its opposition to an appeal and for the
consequences of any such withdrawal;
(f) for taxing or otherwise settling any costs or expenses
which the tribunal directs to be paid and for the
enforcement of any such direction;
(g) for enabling any preliminary or incidental functions in
relation to an appeal to be discharged by the chairman
of the tribunal; and
(h) as to any other matter connected with such appeals.
Decisions of tribunal
28 (1) A decision of the tribunal may be taken by a majority.
(2) The decision must—
(a) state whether it was unanimous or taken by a majority;
(b) be recorded in a document which—
(i) contains a statement of the reasons for the
decision; and
(ii) is signed and dated by the chairman or deputy
chairman as the case may be.
(3) The tribunal must—
(a) inform each party of its decision; and
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(b) as soon as reasonably practicable, send to each party a
copy of its decision.
Costs of appeal
29 (1) Subject to subsections (2) and (3), a tribunal may give such
directions as it thinks fit for the payment of costs or expenses by any
party to the appeal.
(2) If the tribunal considers that a party to any proceedings on
an appeal has acted vexatiously, frivolously or unreasonably it may order
that party to pay to another party to the proceedings the whole or part of
the costs or expenses incurred by the other party in connection with the
proceedings.
(3) If, in any proceedings on an appeal, the tribunal considers
that a decision of the BMA which is the subject of the appeal was
unreasonable it may order the BMA to pay to another party to the
proceedings the whole or part of the costs or expenses incurred by the
other party in connection with the proceedings.
Appeal to Supreme Court
30 (1) Any party, including the BMA, may appeal to the Supreme
Court on any question of law arising from the decision of the appeal
tribunal.
(2) If the Supreme Court is of the opinion that the decision was
erroneous in point of law it shall remit the matter to the tribunal for re-
hearing and determination.
(3) No appeal to the Court of Appeal shall be brought from a
decision of the Supreme Court on an appeal brought under this section,
except with leave of the Court of Appeal.
PART 5
SUPPLEMENTARY
Restricted information
Restricted information
31 (1) Except as provided by section 32―
(a) no person who under, or for the purposes of, this Act
receives information relating to the business or other
affairs of any person; and
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(b) no person who obtains such information directly or
indirectly from a person who has received it as
mentioned in paragraph (a),
shall disclose the information without the consent of the
person to whom it relates and (if different) the person from
whom it was received.
(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.
Permitted disclosure
32 (1) Section 31 does not preclude the disclosure of information if
the disclosure is for the purpose of enabling or assisting—
(a) the BMA to discharge its functions under this Act or any
other statutory provision;
(b) the Financial Intelligence Agency to discharge its
functions under any statutory provision; or
(c) the Minister of Justice or the Minister of Finance to
discharge any of their functions.
(2) Section 31 does not preclude the disclosure of information
to a police officer not below the rank of inspector, or to the Director of
Public Prosecutions, in relation to any criminal proceedings.
(3) Section 31 does not preclude the disclosure of information
for the purpose of enabling or assisting an authority in a country or
territory outside Bermuda (a “foreign authority”) to exercise functions
corresponding to the BMA’s functions under this Act.
(4) But subsection (3) does not apply in relation to disclosures
unless the BMA is satisfied that the foreign authority is subject to
restrictions on further disclosure at least equivalent to section 31 and
this section.
Criminal offences
Offences relating to registration
33 (1) A person is guilty of an offence if he fails to comply with any
requirement imposed under the following sections—
section 9 (carrying on business when not registered);
section 10(5) (failing to correct inaccuracy in application
etc);
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section 11(4) (false representation that authorised etc by
BMA).
(2) A person guilty of an offence under this section is liable—
(a) on summary conviction, to a fine of $25,000 or
imprisonment for a term of 12 months or to both;
(b) on conviction on indictment, to a fine of $100,000 or to
imprisonment for a term of five years or to both.
(3) A person is not guilty of an offence under this section if he
took all reasonable steps and exercised all due diligence to avoid
committing the offence.
Offences relating to appeal tribunal
34 (1) A person who, having been required in accordance with
regulations made under section 27 to attend the appeal tribunal and give
evidence, fails without reasonable excuse to attend or give evidence, shall
be guilty of an offence and liable on summary conviction to a fine of
$10,000.
(2) A person who without reasonable excuse alters, suppresses,
conceals, destroys or refuses to produce any document which he has
been required to produce in accordance with regulations under section
27, or which he is liable to be so required to produce, shall be guilty of
an offence and liable ⎯
(a) on summary conviction to a fine of $25,000 or to
imprisonment for six months or to both;
(b) on conviction on indictment to a fine of $50,000 or to
imprisonment for two years or to both.
Offence of disclosing restricted information
35 A person who discloses information in contravention of section
31 is guilty of an offence and is liable on summary conviction to a fine of
$50,000 or to imprisonment for two years or to both.
Final provisions
Notices
36 (1) Subject to subsection (3), any notice or other document
required or authorised by or under this Act to be given to or served on
any person may be given to or served on the person in question⎯
(a) by delivering it to him;
(b) by leaving it at his principal place of business; or
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(c) by sending it to him at that address by facsimile,
electronic mail or other similar means which produce a
document containing the text of the communication.
(2) Any such notice or document may in the case of a company
be given or served⎯
(a) by delivering it to the company's principal place of
business or registered office in Bermuda; or
(b) by sending it by registered post addressed to the
company's principal place of business or registered office
in Bermuda.
(3) No notice or document required by this Act to be given or
served on the BMA shall be regarded as given or served until it is
received; but such notice or document may be given by facsimile,
electronic mail or other similar means which produce a document
containing the text of the communication.
Regulations and orders
37 (1) The Minister may make such regulations as the Minister
considers necessary or expedient for the implementation of this Act, and
regulations may make different provision for different cases.
(2) Regulations made under this section and orders made
under section 2(2) (definition of AML/ATF regulated financial institution)
and section 20(4) (breach of certain regulations may attract civil penalty)
are subject to the affirmative resolution procedure.
(3) Orders made under section 4(1) (designation of professional
bodies as supervisory authorities) and regulations made under section
27 (appeals) are subject to the negative resolution procedure.
Transitional
38 A non-licensed person who on the day of commencement of this
Act is carrying on business may continue to carry on business without
being included in the register (as required by section 9)—
(a) for a period not exceeding six months beginning with
that date; and
(b) if within that period application is made for registration,
until that application is disposed of or withdrawn.
Consequential amendments
39 (1) The Government Authorities (Fees) Act 1971 is amended in
Part B of the First Schedule by inserting in the proper place in
alphabetical order the following—
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“Appeal Tribunal constituted under section 25 of, and
the Schedule to, the Proceeds of Crime Regulations
(Supervision and Enforcement) Act 2008”.
(2) Section 3(1)(be) of the Bermuda Monetary Authority Act
1969 (power to supervise institutions in relation to money laundering
regulations) is repealed and replaced with the following—
“(be) to perform the duties conferred on it by section 5 of
the Proceeds of Crime Regulations (Supervision and
Enforcement) Act 2008;”.
(3) In the Fourth Schedule to the Bermuda Monetary Authority
Act 1969 (fees) there shall be added at the end the following—
“Proceeds of Crime Regulations (Supervision and
Enforcement) Act 2008
Application fee under section 14(1) $100”
(4) In regulation 2 (interpretation) of the Proceeds of Crime
(Anti-Money Laundering and Anti-Terrorist Financing) Regulations
2008—
(a) in paragraph (1) in the definition of “financial institution”
for “financial institution” substitute “AML/ATF regulated
financial institution”, and put the definition in the
appropriate place in alphabetical order;
(b) in paragraph (1) in the definition of “supervisory
authority” for “financial institution” substitute
“AML/ATF regulated financial institution”;
(c) in paragraph (2) for “ “financial institution” means”
substitute “ “AML/ATF regulated financial institution”
means”.
(5) In regulation 4 of those Regulations (application), in
paragraph (a) for “financial institution” substitute “AML/ATF regulated
financial institution”.
(6) In regulations 10(2)(a), 10(2)(b), 11(2)(b), 12(1) and (2), 13(3)
and (4), 14(2)(a), 14(2)(c)(i), 16(3) and 16(4) of those Regulations, for
“financial institution” in each place substitute “AML/ATF regulated
financial institution”.
Correction of errors relating to offences
40 (1) The Anti-Terrorism (Financial and Other Measures) Act
2004 is amended in section 13 (penalties) by renumbering the section as
subsection (1) and inserting after it the following—
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“(2) A person guilty of an offence under section 10A (tipping
off) shall be liable—
(a) on summary conviction, to a fine of $15,000 or
imprisonment for three years or to both;
(b) on conviction on indictment, to an unlimited fine
or to imprisonment for ten years, or to both.”
(2) In regulation 19(1) of the Proceeds of Crime (Anti-Money
Laundering and Anti-Terrorist Financing) Regulations 2008 (offences)—
(a) for “section 13(1), (2), (4) and (5)” substitute “section
13(1), (2), (3) and (4)”; and
(b) for “and 18(1)” substitute “17(1) and 18(1)”.
Commencement
41 This Act shall come into operation on such day as the Minister
may appoint by notice published in the Gazette; and the Minister may
appoint different days for different provisions.
SCHEDULE (section 25)
APPEAL TRIBUNAL
Constitution of Tribunal
1 (1) The tribunal shall consist of a chairman, a deputy chairman
and a panel of not less than five members, appointed by the Minister by
notice published in the Gazette.
(2) For the purpose of hearing an appeal under this Act, the
tribunal shall be composed of—
(a) the chairman or deputy chairman; and
(b) two members selected by the chairman or, in his
absence, the deputy chairman.
Appointments
2 (1) The chairman and deputy chairman shall hold office for a
period of three years, and may be reappointed from time to time for a like
period.
(2) The members of the panel shall hold office for a period of
two years, and may be reappointed from time to time for a like period.
(3) During any period of time when the chairman or deputy
chairman is absent from Bermuda or for any other reason unable to act
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the Minister may, by notice published in the Gazette, appoint a person to
act in his place for that period of time, but shall not appoint a person
unless that person is himself qualified under paragraph 3.
(4) The chairman, deputy chairman or any member of the
panel may at any time, except during the course of proceedings before
them under this Act, resign his appointment by notice in writing
addressed to the Minister.
Eligibility for appointment
3 (1) No person shall be qualified to be the chairman or deputy
chairman unless he is a barrister and attorney of at least ten years’
standing.
(2) No person shall be qualified to be a member of the panel
unless he has relevant experience or knowledge of the financial services
industry.
(3) A person shall not be eligible for appointment as chairman,
deputy chairman or a member of the tribunal if he is or has at any time
during the period of two years ending with his appointment been an
officer, servant or agent of the BMA.
Vacancies
4 Where, during any proceedings, a vacancy occurs in the
membership of the tribunal it may, with the consent of all parties,
continue to act notwithstanding the vacancy; and no act, proceeding or
determination of a tribunal shall be called in question or invalidated by
reason of the vacancy.
Tribunal autonomous
5 In the exercise of the powers conferred on it by this Act, the
tribunal shall not be subject to the direction or control of any other
person or authority.
Proceedings
6 Parties to any proceedings before the tribunal may appear
personally or be represented, by counsel or otherwise.
7 The tribunal may impose reporting restrictions where it
considers it necessary or desirable to protect the privacy of parties to a
hearing.
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8 Save as otherwise provided by this Act or in regulations made by
the Minister regulating the procedure to be followed by the tribunal, the
tribunal shall regulate its own proceedings as it thinks fit.
