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Proceeds of Crime and Related Measures Amendment Act 2013

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Proceeds of Crime and Related Measures Amendment Act 2013
FA E R
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BERMUDA

PROCEEDS OF CRIME AND RELATED MEASURES AMENDMENT ACT 2013

2013 : 30

TABLE OF CONTENTS

Citation

Proceeds of Crime Act 1997

Amends section 46
Amends section 47
Amends section 49
Amends section 55A(2)(a)

Anti-Terrorism (Financial and Other Measures) Act 2004

Amends section 3(1)
Amends section 3(2)
Amends section 5
Amends section 9
Amends section 10A
Amends section 12O
Amends section 15A
Amends Schedule 3

Criminal Code Act 1907

Amends part note and inserts section 70IA
Deletes section 127(3)
Amends penalties relating to offences of corruption etc

Criminal Justice (International Cooperation) (Bermuda) Act 1994

Amends section 11C
Inserts section 27A

Proceeds of Crime (Anti-Money Laundering and Anti-Terrorist Financing) Regulations 2008

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PROCEEDS OF CRIME AND RELATED MEASURES AMENDMENT ACT 2013

Amends regulation 7
Amends regulation 11
Amends regulation 14
Amends regulation 15
Amends regulation 18
Amends regulation 19
Consequential amendments
Commencement

SCHEDULE
CONSEQUENTIAL AMENDMENTS

WHEREAS it is expedient to amend the Proceeds of Crime Act 1997, the Anti-
Terrorism (Financial and Other Measures) Act 2004, the Criminal Code Act 1907, the
Criminal Justice (International Cooperation) (Bermuda) Act 1994 and the Proceeds of Crime
(Anti-Money Laundering and Anti-Terrorist Financing) Regulations 2008, to give effect to
recommendations of the Financial Action Task Force:

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:

Citation
This Act may be cited as the Proceeds of Crime and Related Measures Amendment

Act 2013.

Proceeds of Crime Act 1997

Amends section 46
Section 46 of the Proceeds of Crime Act 1997 (“the 1997 Act”) is amended by

inserting, immediately before subsection (1)─

A person shall make a disclosure to the FIA when they know or suspect
that—

any currency, funds or other assets are derived from or used in
connection with any criminal conduct; or

a money laundering offence has been committed, is in the course
of being committed or has been attempted,

and this information has come to him in the course of his trade,
profession, business or employment”.

“(A1)

(a)

(b)

Amends section 47
Section 47 of the 1997 Act is amended──

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PROCEEDS OF CRIME AND RELATED MEASURES AMENDMENT ACT 2013

by deleting subsection (2)(b) and substituting the following──

he discloses to any other person──

his knowledge or suspicion that a disclosure or related
information has been filed with the FIA; or

information or any other matter which is likely to prejudice any
investigation which might be conducted following such a
disclosure.”

“(b)

(i)

(ii)

in subsection (4) by deleting “(2)” and substituting “(2)(b)(ii)”.

by inserting next after subsection (5)──

No person shall be guilty of an offence under this section where he
discloses information to a supervisory authority in the course of it carrying out its
statutory duties.

For the purposes of this section supervisory authority shall have the
same meaning as under section 2 of the Proceeds of Crime (Anti-Money Laundering
and Terrorist Financing Supervision and Enforcement) Act 2008.”.

“(6)

(7)

Amends section 49
Section 49(1) of the 1997 Act is amended─

in paragraph (a) by inserting after “money laundering” (in both places), the
words “,terrorist financing and the financing of proliferation”; and

in paragraph (c) by inserting after “money laundering” the words “, terrorist
financing and the financing of proliferation”; and

inserting at the end of paragraph (c) the word “and”; and

by inserting after paragraph (c)─

advising the Minister in the development of policies to combat
money laundering, terrorist financing and the financing of
proliferation.”.

“(d)

Amends section 55A(2)(a)
Section 55A(2)(a) of the 1997 Act is amended by inserting next after the words

“confiscation order” the words “or a deprivation order”.

Anti-Terrorism (Financial and Other Measures) Act 2004

Amends section 3(1)
Section 3(1) of the Anti-Terrorism (Financial and Other Measures) Act 2004 (“the

2004 Act”) is amended by deleting and substituting paragraph (c) as follows─

(a)

(b)

(c)

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(a)

(b)

(c)

(d)

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PROCEEDS OF CRIME AND RELATED MEASURES AMENDMENT ACT 2013

the use or threat is made for the purpose of advancing a political,
religious, racial, ethnic or philosophical, or ideological cause;”.

“(c)

Amends section 3(2)
Section 3(2) of the 2004 Act is amended by inserting after paragraph (g)─

involves unlawful acts against the safety of civil aviation;

involves the seizure or detention of another person (“the hostage”)
and threatens to kill, to injure or to continue to detain the hostage;

involves nuclear material such that it─

involves serious interference with the physical protection of
nuclear material; or

involves an act that without lawful authority constitutes the
receipt, possession, use, transfer, alteration, disposal or
dispersal of nuclear material,

and which causes or is likely to cause death or serious injury to
any person or substantial damage to property;

involves unlawful violence at airports serving international civil
aviation;

involves unlawful violence against the safety of fixed platforms
located on the continental shelf; or

involves terrorist bombings, the unlawful and intentional delivery,
placement, discharge or detonation of an explosive or other lethal
device in, into or against a place of public use, a government
facility, a public transportation system or an infrastructure
facility.”.

“(h)

(i)

(j)

(i)

(ii)

(k)

(l)

(m)

Amends section 5
Section 5 of the 2004 Act is amended by deleting paragraph (b) of subsections (1),

(2) and (3), and substituting each paragraph as follows─

intends that it should be used, or suspects that it may be used, for
the purposes of─

terrorism;

financing of terrorist organisations; or

financing of a person or persons participating in terrorist
activity.”.

“(b)

(i)

(ii)

(iii)

Amends section 9
Section 9(9) of the 2004 Act is amended─

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PROCEEDS OF CRIME AND RELATED MEASURES AMENDMENT ACT 2013

in paragraph (a) by deleting “$10,000 or imprisonment for six months or
both”, and substituting “$15,000 or imprisonment for three years or both;
and

in paragraph (b) by deleting “to a fine of $100,000 or imprisonment for five
years or both”, and substituting “to an unlimited fine or imprisonment for
ten years or both” .

Amends section 10A
Section 10A of the 2004 Act is amended─

by deleting subsection (2)(b) and substituting the following──

he discloses to any other person──

his knowledge or suspicion that a disclosure or related
information has been filed with the FIA; or

information or any other matter which is likely to prejudice any
investigation which might be conducted following such a
disclosure.”

“(b)

(i)

(ii)

in subsection (4) by deleting “(2)” and substituting “(2)(b)(ii)”.

Amends section 12O
Section 12O(1) of the 2004 Act is amended by deleting “8” and substituting “9”.

Amends section 15A
Section 15A of the 2004 Act is amended by deleting “Terrorism (United Nations

Measures) (Overseas Territories) Order 2001 and substituting “Terrorist-Asset Freezing etc.
Act 2010 (Overseas Territories) Order 2011.

Amends Schedule 3
Paragraph 9(1) of Schedule 3 to the 2004 Act is amended by inserting after “claims”

the words “(including a person who asserts an interest in any property)”.

Criminal Code Act 1907

Amends part note and inserts section 70IA
The Criminal Code Act 1907 is amended─

by deleting the Part note “RESTITUTION AND REPARATION”, and
substituting the Part note “RESTITUTION, REPARATION AND
DEPRIVATION”; and

by inserting next after section 70I the following─

(a)

(b)

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(a)

(b)

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(a)

(b)

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PROCEEDS OF CRIME AND RELATED MEASURES AMENDMENT ACT 2013

“Deprivation Orders
Where, upon application by the Director of Public Prosecutions, the

court that heard the criminal case, is satisfied that property is tainted property in
respect of an offence of which a person has been convicted, the court may order
that the specified property be deprived from the convicted person.

In determining whether property is tainted property the court may
infer, in the absence of evidence to the contrary, that the property was used in or
in connection with the commission of an offence if it was in the person’s possession
at the time of, or immediately after the commission of the offence for which the
person was convicted.

In considering whether a deprivation order should be made under
subsection (1), the court shall have regard to─

the rights and interests, if any, of third parties in the property;

the gravity of the offence concerned;

any hardship that may reasonably be expected to be caused to any
person by the operation of the order; and

the use that is ordinarily made of the property, or the use to which
the property was intended to be put.

An order under this section shall operate to deprive the offender of his
rights, if any, in the property to which it relates and the property shall (if not already
in their possession) be taken into the possession of the police.

Subject to subsection (3) property deprived from a person under
subsection (1) may, after the expiry of six months from the date of the deprivation
order, be disposed of and the proceeds shall be deposited into the Confiscated Asset
Fund.”

70IA (1)

(2)

(3)

(a)

(b)

(c)

(d)

(4)

(5)

Deletes section 127(3)
Section 127(3) of the Criminal Code Act 1907 is deleted.

Amends penalties relating to offences of corruption etc
The Criminal Code Act 1907 is amended─

in section 111, by deleting “to imprisonment for three years” and
substituting “on summary conviction to a fine of $50,000 or to
imprisonment for five years, or both; and on conviction on indictment to
an unlimited fine or imprisonment for 15 years, or both”;

in section 112—

by deleting “a summary” and substituting “an”; and

by deleting “to imprisonment for twelve months” and substituting “on
summary conviction to a fine of $50,000 or to imprisonment for five

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(a)

(b)

(i)

(ii)

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PROCEEDS OF CRIME AND RELATED MEASURES AMENDMENT ACT 2013

years, or both; and on conviction on indictment to an unlimited fine or
imprisonment for 15 years, or both”;

in section 116(1), by deleting—

“a felony” and substitute “an offence”;

“to imprisonment for five years” and substituting “on summary
conviction to a fine of $50,000 or to imprisonment for five years, or both;
and on conviction on indictment to an unlimited fine or imprisonment
for 15 years, or both”;

in section 116(4), by deleting “three years” and substitute with “four years
or to a fine of $50,000, or both”;

in section 117, by deleting—

“a felony” and substitute “an offence”;

“to imprisonment for five years” and substitute “on summary conviction
to a fine of $50,000 or to imprisonment for five years, or both; and on
conviction on indictment to an unlimited fine or imprisonment for 15
years, or both”;

in section 118, by deleting—

in the headnote “of” and substitute “or”;

“a summary offence and is liable to imprisonment for twelve months”,
and substituting “an offence, and is liable on summary conviction to a
fine of $50,000 or to imprisonment for five years, or both; and on
conviction on indictment to an unlimited fine or imprisonment for 15
years, or both”;

in section 120(1), by deleting— “to imprisonment for five years” and
substituting “on summary conviction to a fine of $50,000 or to
imprisonment for five years, or both; and on conviction on indictment to
an unlimited fine or imprisonment for ten years, or both”;

in sections 122(1), 123, 124, 125(1) and 125(2), by deleting “to
imprisonment for three years” and substituting “on summary conviction to
a fine of $50,000 or to imprisonment for five years, or both; and on
conviction on indictment to an unlimited fine or imprisonment for ten
years, or both”;

in sections 122,123, 125(1) and 125(2), by deleting “misdemeanor” and
substitute “offence”;

in section 125(3), by deleting “of a summary offence, and is liable to
imprisonment for twelve months” and substituting “of an offence and is
liable on summary conviction to a fine of $50,000 or to imprisonment for
five years, or both; and on conviction on indictment to an unlimited fine or
imprisonment for ten years, or both”;

(c)

(i)

(ii)

(d)

(e)

(i)

(ii)

(f)

(i)

(ii)

(g)

(h)

(i)

(j)

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PROCEEDS OF CRIME AND RELATED MEASURES AMENDMENT ACT 2013

in section 125A by deleting—

“misdemeanor” and substitute “offence”;

“on conviction to imprisonment for five years”, and substituting “on
summary conviction to a fine of $50,000 or to imprisonment for five
years, or both; and on conviction on indictment to an unlimited fine or
imprisonment for ten years, or both”;

in sections 125B, by deleting “on conviction to imprisonment for twelve
months” and substituting “on summary conviction to a fine of $50,000 or
to imprisonment for four years, or both;

in sections 126, 127(4) and 128, by deleting “to imprisonment for three
years” and substituting “on summary conviction to a fine of $50,000 or to
imprisonment for five years, or both; and on conviction on indictment to
an unlimited fine or imprisonment for ten years, or both”;

in sections 126, 127, and 128, by deleting “misdemeanor” and substitute
“offence”;

in section 129, by deleting—

“a summary” and substitute “an”;

“to imprisonment for twelve months” and substituting “on summary
conviction to a fine of $50,000 or to imprisonment for five years, or both;
and on conviction on indictment to an unlimited fine or imprisonment
for ten years, or both”;

in section 129 by deleting, wherever it appears, “felony” and substitute
“offence”;

in section 392(1), by deleting the words from “liable on conviction” to the
end of that subsection, and substituting “liable on summary conviction to
a fine of $50,000 or to imprisonment for five years, or both; and on
conviction on indictment to an unlimited fine or imprisonment for ten
years, or both”;

Criminal Justice (International Cooperation) (Bermuda) Act 1994

Amends section 11C
Section 11C of the Criminal Justice (International Cooperation) (Bermuda) Act

1994 (“the 1994 Act”) is amended by inserting after subsection (2)─

For the avoidance of doubt, nothing in this Act shall prevent the giving
of assistance by persons in Bermuda, in connection with the obligations assumed
by Bermuda under─

a lawful agreement; or

a treaty,

“(3)

(a)

(b)

(k)

(i)

(ii)

(l)

(m)

(n)

(o)

(i)

(ii)

(p)

(q)

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in the freezing or seizure of assets which are the subject of an agreement or a
treaty.”.

Inserts section 27A
The 1994 Act is amended by inserting next after section 27, the following─

“Non-prosecution of witnesses
Subject to the written consent of the Director of Public Prosecutions,

a witness, expert or other person who, at the request of prosecuting authorities in
Bermuda, consents to─

give evidence in a proceeding in Bermuda; or

assist in an investigation, prosecution or judicial proceeding in
Bermuda,

shall be afforded safe conduct, and shall not be prosecuted, detained, punished or
subjected to any other restriction of his personal liberty, in Bermuda, in respect of
acts, omissions or convictions prior to his departure from the requested State Party.

Such safe conduct shall cease when the witness, expert or other person
having had, for a period of fifteen consecutive days or for any period agreed upon
by the States Parties from the date on which he─

has been officially informed that his presence is no longer required
by prosecuting authorities;

(although having an opportunity to leave without condition) has,
nevertheless remained voluntarily in Bermuda; or

having left Bermuda, has returned of his or her own free will.

In this section─

“State Party” means any country or territory, and includes Bermuda.”.

27A (1)

(a)

(b)

(2)

(a)

(b)

(c)

(3)

Proceeds of Crime (Anti-Money Laundering and
Anti-Terrorist Financing) Regulations 2008

Amends regulation 7
Regulation 7 of the Proceeds of Crime (Anti-Money Laundering and Anti-Terrorist

Financing) Regulations 2008 (“the 2008 Regulations”) is amended by inserting after
“including”, the words “all complex, unusually large transactions, and all unusual patterns
of transactions which have no apparent economic or lawful purpose, and”.

Amends regulation 11
Regulation 11 of the 2008 Regulations is amended─

in the headnote, by deleting the word “customer”;

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PROCEEDS OF CRIME AND RELATED MEASURES AMENDMENT ACT 2013

in paragraph (1) by inserting after “measures”, the words “to business
relationships with natural and legal persons”; and

by inserting after paragraph (1)(a)─

in instances where a person or a transaction is from or in a country
which represents a higher risk of money laundering, corruption,
terrorist financing or being subject to international sanctions.”.

“(aa)

Amends regulation 14
Regulation 14 of the 2008 Regulations is amended by deleting paragraph (1)(b) and

substituting the following─

notwithstanding the relevant person’s reliance on the other
person, the relevant person─

must obtain information sufficient to identify customers;

must satisfy itself that reliance is appropriate given the level of
risk for the jurisdiction in which the party to be relied upon is
usually resident; and

will remain liable for any failure to apply such measures.”.

“(b)

(i)

(ii)

(iii)

Amends regulation 15
Regulation 15 of the 2008 Regulations is amended by inserting after paragraph (5)─

For the avoidance of doubt, all documents related to the investigations
of─

complex transactions;

unusually large transactions; or

unusual patterns of transactions,

in relation to regulation 7, must be recorded and kept for a minimum period of five
years.”.

“(5A)

(a)

(b)

(c)

Amends regulation 18
Regulation 18 of the 2008 Regulations is amended—

in subsection (1), by deleting the “and” at the end of paragraph (a), inserting
“and” at the end of paragraph (b), and adding—

screened prior to hiring to ensure high standards.”;“(c)

by deleting paragraph (2) and substituting─

(b)

(c)

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(a)

(b)

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PROCEEDS OF CRIME AND RELATED MEASURES AMENDMENT ACT 2013

For the purposes of this paragraph, an employee is a relevant employee
if─

at any time in the course of his duties, he has, or may have, access
to any information which may be relevant in determining whether
any person is engaged in money laundering or terrorist financing;

at any time plays a role in implementing and monitoring
compliance with anti-money laundering or anti-terrorist financing
requirements.”.

“(2)

(a)

(b)

Amends regulation 19
Regulation 19 of the 2008 Regulations is amended by inserting, immediately before

reference “15(1)”, reference “14(1),”.

Consequential amendments
The amendments set out in the Schedule shall have effect.

Commencement
This Act shall come into operation on such day as may be appointed by the Minister

by notice published in the Gazette, and different days may be appointed for different
provisions.

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PROCEEDS OF CRIME AND RELATED MEASURES AMENDMENT ACT 2013

SCHEDULE

(Section 23)

CONSEQUENTIAL AMENDMENTS

Amends the Criminal Code Act 1907
The Criminal Code Act 1907 is amended by inserting, next section 118, the

following—

“Corrupting or threatening a holder of a judicial office or law enforcement
official

Any person—

who attempts by threats or intimidation of any kind, or by benefits
or promises of benefit of any kind, or by other corrupt means, to
influence any person, whether a particular person or not, in his
conduct as a holder of a judicial office or law enforcement official;

who threatens to do any injury or cause any detriment of any kind
to any person on account of anything done by him as a holder of
a judicial office or law enforcement official; or

who accepts any benefit or promise of benefit on account of
anything to be done or that has been done by him as a holder of a
judicial office or law enforcement official,

is guilty of an offence:

Punishment on summary conviction: a fine of $50,000 or to imprisonment
for 5 years, or both; and on conviction on indictment: a fine of $100,000 or
imprisonment for ten years, or both.”.

118A

(a)

(b)

(c)

Amends the Parliament Act 1957
The Parliament Act 1957 is amended—

in section 15 by deleting the final paragraph and substituting—

“Punishment on summary conviction: a fine of $50,000 or to imprisonment
for 5 years, or both; and on conviction on indictment: an unlimited fine or
imprisonment for 15 years, or both.”.

in section 16 by deleting the final paragraph and substituting—

“Punishment on summary conviction to a fine of $50,000 or to
imprisonment for 5 years, or both; and on conviction on indictment: an unlimited
fine or imprisonment for 15 years, or both.”.

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(a)

(b)

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PROCEEDS OF CRIME AND RELATED MEASURES AMENDMENT ACT 2013

Public Treasury (Administration and Payments) Act 1969
The Public Treasury (Administration and Payments) Act 1969 is amended by

deleting section 33B(5) and substituting the following—

A person guilty of an offence under this section is liable on summary
conviction to a fine of $50,000 or to imprisonment for 5 years, or both; and on
conviction on indictment to an unlimited fine or imprisonment for 15 years, or
both.”.

“(5)

Parliamentary Election Act 1978
The Parliamentary Election Act 1978 is amended, in section 66, by deleting the final

paragraph and substituting—

“Punishment on summary conviction: a fine of $50,000 or to imprisonment
for 5 years, or both; and on conviction on indictment: an unlimited fine or
imprisonment for 15 years, or both.”.

[Assent Date: 04 October 2013]

[Operative Date: 08 November 2013]

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