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Proceeds of Crime Amendment Act 2015

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Proceeds of Crime Amendment Act 2015
FA E R
N

AT F
TQUO U

BERMUDA

PROCEEDS OF CRIME AMENDMENT ACT 2015

2015 : 53

TABLE OF CONTENTS

Citation

Amendments to the Proceeds of Crime Act 1997

Amends the Proceeds of Crime Act 1997 (“principal Act”)
Repeals and replaces section 12
Amends section 13
Amends section 15
Amends section 17
Amends section 18
Amends section 19
Amends section 23
Inserts section 26A
Amends section 42A
Repeals and replaces section 43
Amends section 44
Amends section 45
Amends section 49
Inserts section 49AA

Amendments to the Proceeds of Crime (Anti-Money Laundering and Anti-Terrorist Financing
Supervision and Enforcement) Act 2008

Amends section 10(3)(d)

Amendments to the Financial Intelligence Agency Act 2007

Amends section 4
Repeals and replaces section 6
Amends section 14
Repeals and replaces section 18

1

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

17

18
19
20
21

1

PROCEEDS OF CRIME AMENDMENT ACT 2015

Inserts section 21A

Amendments to the Criminal Justice (International Co-operation) (Bermuda) Act 1994

Amends section 11D

Amendments to the Anti-Terrorism (Financial and Other Measures) Act 2004

Repeals and replaces section 12A(1)

Amendments to the Companies Act 1981

Inserts section 64A

Amendments to the Revenue Act 1898

Repeals and replaces section 85

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

Amends regulation 2
Amends regulation 3(3)
Amends regulation 5
Amends regulation 6
Amends regulation 8
Amends regulation 10
Amends regulation 11
Amends regulation 12(1)
Amends regulation 14(1)(b)(i)
Inserts regulation 14A
Amends regulation 15
Amends regulation 16(1)
Amends regulation 17
Inserts regulation 17A
Amends regulation 18
Inserts regulation 18A
Amends regulation 21
Amends regulation 23
Amends regulation 25
Amends regulation 26
Amends regulation 27
Amends regulation 29
Amends regulation 30
Amends regulation 31
Amends the Schedule

Commencement

Commencement

22

23

24

25

26

27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51

52

2

PROCEEDS OF CRIME AMENDMENT ACT 2015

WHEREAS it is expedient to amend the Proceeds of Crime Act 1997, the Proceeds
of Crime (Anti-Money Laundering and Anti-Terrorist Financing Supervision and
Enforcement) Act 2008, the Financial Intelligence Agency Act 2007, the Criminal Justice
(International Co-operation) (Bermuda) Act 1994, the Anti-Terrorism (Financial and Other
Measures) Act 2004, the Companies Act 1981, the Revenue Act 1898, and the Proceeds of
Crime (Anti-Money Laundering and Anti-Terrorist Financing) Regulations 2008, in order to
strengthen the Anti-Money Laundering and Anti-Terrorist Financing (AML/ATF) Legislative
Framework in accordance with revised international standards:

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 Amendment Act 2015.

Amendments to the Proceeds of Crime Act 1997

Amends the Proceeds of Crime Act 1997 (“principal Act”)
The principal Act is amended—

by repealing and replacing sections 9 and 10 as follows—

“Confiscation orders
Where a defendant appears before the Supreme Court to be sentenced

for one or more drug trafficking offences or relevant offences, the court shall
proceed under this section—

on the application of the Director of Public Prosecutions; or

of its own motion where it considers it appropriate to do so.

The court shall first determine whether the defendant has benefited
from criminal conduct.

For the purposes of this Act, a person has benefited from criminal
conduct if he has at any time (whether before or after the commencement of this
Act)—

received any payment or other reward in connection with his or
another person’s criminal conduct;

obtained property as a result of or in connection with his or
another person’s criminal conduct; or

derived a pecuniary advantage as a result of or in connection with
his or another person’s criminal conduct.

If the court determines that he has so benefited, it shall, before
sentencing or otherwise dealing with him in respect of the offence or (as the case

9 (1)

(a)

(b)

(2)

(3)

(a)

(b)

(c)

(4)

1

2

(a)

3

PROCEEDS OF CRIME AMENDMENT ACT 2015

may be) any of the offences concerned, make a confiscation order and determine in
accordance with section 15 the amount to be recovered in his case under the order.

The court shall then, in respect of the offence or offences concerned—

order the defendant to pay the amount of the confiscation order
within such period as it may specify; and

take into account the confiscation order before—

imposing any fine on him;

making any other order involving any payment by him; and

making any order under section 37 of the Misuse of Drugs Act
1972 (forfeiture); but

subject to paragraph (b), leave the confiscation order out of
account in determining the appropriate sentence or other manner
of dealing with the defendant.”; and

(5)

(a)

(b)

(i)

(ii)

(iii)

(c)

and in consequence of the amendments made by way of paragraph (a)
amend sections 7, 11(1), 11(7), 13(1), 13(2), and 36.1E (9)(a), by deleting
all references to section 10 wherever they occur.

Repeals and replaces section 12
Section 12 of the principal Act is repealed and replaced as follows—

“Assessing the proceeds of criminal conduct
For the purposes of this Act—

any payments or other rewards received, property obtained or
pecuniary advantage derived by a person at any time (whether
before or after the commencement of this Act) as a result of or in
connection with criminal conduct carried on by him or another
person are his proceeds of criminal conduct; and

the value of his proceeds of criminal conduct is the aggregate of
the values of the payments or other rewards, property and
pecuniary advantage.

Subject to subsections (5) and (6), the court shall make the required
assumptions for the purpose—

of determining whether the defendant has benefited from criminal
conduct; and

if he has, of determining the value of his proceeds of criminal
conduct.

The required assumptions are—

that any property appearing to the court—

12 (1)

(a)

(b)

(2)

(a)

(b)

(3)

(a)

(b)

3

4

PROCEEDS OF CRIME AMENDMENT ACT 2015

to have been held by the defendant at any time since his
conviction; or

to have been transferred to him at any time since the beginning
of the period of six years ending when the proceedings were
instituted against him,

was received by him as a payment or reward, property or a pecuniary advantage in
connection with criminal conduct carried on by him;

that any expenditure of his since the beginning of that period was
met out of payments received by him in connection with criminal
conduct carried on by him;

that, for the purpose of valuing any property received or assumed
to have been received by him at any time as such a reward, he
received the property free of other interests in it.

For the purposes of this Act, if a person derives a pecuniary advantage
as a result of or in connection with the commission of an offence, he is to be treated
as if he had obtained instead a sum of money equal to the value of the pecuniary
advantage.

The court shall not make any of the required assumptions in relation
to any particular property or expenditure if—

that assumption is shown to be incorrect in the defendant’s case;
or

the court is satisfied that there would be a serious risk of injustice
in the defendant’s case if that assumption were to be made,

and where the court, by virtue of this subsection, does not make one of the required
assumptions it shall state its reasons.

For the purpose of assessing the value of the proceeds derived by the
defendant from criminal conduct in a case where a confiscation order has
previously been made against him (under this Act or the Drug Trafficking
Suppression Act 1988), the court shall leave out of account any such proceeds that
are shown to the court to have been taken into account in determining the amount
to be recovered under the previous order.”.

(i)

(ii)

(b)

(c)

(4)

(5)

(a)

(b)

(6)

Amends section 13
Section 13 of the principal Act is amended—

in subsection (1)(a), by deleting the words “as mentioned in the section in
question” and by substituting the words “from criminal conduct”;

by deleting and substituting subsection (1)(b) and substituting as
follows—

assessing the value of his proceeds of criminal conduct.”; and“(b)

4

(a)

(b)

5

PROCEEDS OF CRIME AMENDMENT ACT 2015

in subsection (8), by deleting the words “drug trafficking or from any
relevant offence” and by substituting the words “criminal conduct”.

Amends section 15
Section 15 of the principal Act is amended—

by deleting and substituting subsection (1) as follows—

Subject to subsection (3), the amount to be recovered under a
confiscation order shall be the amount the court assesses to be the value of the
defendant’s proceeds of criminal conduct.”; and

“(1)

by deleting and substituting subsection (3) as follows—

If the court is satisfied that the amount that might be realised at the
time that the confiscation order is made is less than the amount the court assesses
to be the value of the defendant’s proceeds of criminal conduct, the amount to be
recovered under the confiscation order shall be the amount appearing to the court
to be the amount that might be so realised.”.

“(3)

Amends section 17
Section 17 of the principal Act is amended by deleting and substituting subsections

(1) and (2) as follows—

This section applies where a defendant has appeared before the
Supreme Court to be sentenced in respect of one or more drug trafficking or relevant
offences but the court has not made a confiscation order because either—

it did not proceed under this Act; or

it has made a determination that the defendant has not benefited
from criminal conduct.

If the Director of Public Prosecutions has evidence which was not
previously available but which he believes would have led the court to determine
that the defendant had benefited from criminal conduct, he may make an
application to the court.”.

“17 (1)

(a)

(b)

(2)

Amends section 18
Section 18 of the principal Act is amended—

by deleting and substituting subsections (2), (3), and (4) as follows—

Where the Director of Public Prosecutions is of the opinion that the real
value of the defendant’s proceeds of criminal conduct was greater than their
assessed value, he may apply to the court for the evidence on which he has formed
his opinion to be considered by the court.

“(2)

(c)

5

(a)

(b)

6

7

(a)

6

PROCEEDS OF CRIME AMENDMENT ACT 2015

If, having considered the evidence, the court is satisfied that the real
value of the defendant’s proceeds of criminal conduct is greater than their assessed
value (whether because the real value at the time of the current determination was
higher than was thought or because the value of the proceeds or benefit in question
has subsequently increased), the court shall make a fresh determination of the
amount to be recovered under a confiscation order.

In this section—

“assessed value” means the value of the defendant’s proceeds of criminal
conduct as assessed by the court in accordance with section 15(1) of
this Act; and

“real value” means the value of the defendant’s proceeds of criminal
conduct which took place in the period by reference to which the
current determination was made or in any earlier period.”; and

(3)

(4)

by deleting subsection (6) and substituting the following—

For the avoidance of doubt, section 12(6) shall not apply in relation to
any of the defendant’s proceeds of criminal conduct taken into account in respect
of the current determination.”.

“(6)

Amends section 19
Section 19 of the principal Act is amended—

by deleting and substituting subsections (1) and (2) as follows—

On an application under section 17 or 18, the court may take into
account any payment or other reward, property or pecuniary advantage received
by the defendant on or after the date of the—

conviction (in the case of an application under section 17 by virtue
of subsection (1)(a));

determination (in the case of an application under section 17 by
virtue of subsection (1)(b)); or

current determination (in the case of an application under section
18),

but only if the Director of Public Prosecutions shows that it was received by the
defendant in connection with criminal conduct, on or before that date.

In considering any evidence which relates to any payment or reward,
property or pecuniary advantage in relation to criminal conduct to which
subsection (1) applies, the court shall not make the assumptions which would
otherwise be required by section 12.”; and

“(1)

(a)

(b)

(c)

(2)

in section 19(4), by deleting the reference to section 10.

(b)

8

(a)

(b)

7

PROCEEDS OF CRIME AMENDMENT ACT 2015

Amends section 23
Section 23 of the principal Act is amended, in subsection (2), by—

deleting the words “drug trafficking” and by substituting the words
“criminal conduct”; and

deleting the words “value of his benefit from relevant offences, or the
amount” and by substituting the word “amount”.

Inserts section 26A
The principal Act is amended by inserting next after section 26 the following—

“Enforcement of payment of confiscation order
Where—

the Supreme Court has made a confiscation order; and

any sum required to be paid by a person under a confiscation order
is not paid when it is required to be paid,

the court may issue a warrant under this section for the person’s arrest.

A warrant under this section shall be authority—

for any police officer, whether he has the warrant with him or not,
to arrest the person who is the subject of the warrant and bring
him before the court to be dealt with according to law; and

if the circumstances require, for the person to be detained in
custody at a police station for a period of not more than two days
after his arrest before he is brought before a court in accordance
with paragraph (a).

A police officer arresting a person by virtue of a warrant under this
section shall, at the time of the arrest, either—

show the warrant to the person being arrested; or

if the officer does not have the warrant with him at the time of the
arrest—

inform the person being arrested of the existence and purport
of the warrant; and

after such arrest, show the warrant to the person as soon as
reasonably practicable but not more than four hours after the
arrest.

The powers under subsection (1), for the issuance of a warrant, are
exercisable—

on application by a police officer;

on application by the Director of Public Prosecutions; or

26A (1)

(a)

(b)

(2)

(a)

(b)

(3)

(a)

(b)

(i)

(ii)

(4)

(a)

(b)

9

(a)

(b)

10

8

PROCEEDS OF CRIME AMENDMENT ACT 2015

by the court on its own motion.

Where a person has been brought before the court on a warrant issued
under this section the court may—

impose a period of imprisonment in default in accordance with
section 25;

order a fresh assessment of the realisable assets of the defendant;

vary or discharge the confiscation order;

exercise any of the powers as prescribed under sections 27 to 34;
or

make any other order that the court deems fit.”.

(c)

(5)

(a)

(b)

(c)

(d)

(e)

Amends section 42A
Section 42A of the principal Act is amended—

by inserting next to section number “42A” the subsection number “(1)”;

by inserting after the definition of “country” the following—

“ “criminal property” has the meaning set out in subsection (2);”; and

by inserting after subsection (1) the following—

“Criminal property” is property which—

constitutes a person’s benefit from criminal conduct or represents
such a benefit (in whole or part and whether directly or indirectly);
and

the alleged offender knows or suspects constitutes or represents
such benefit.

For the purposes of subsection (2), it is immaterial—

who carried out the conduct;

who benefited from it; or

whether it occurred before or after the passing of this Act.

For the purposes of subsection (2), a person benefits from criminal
conduct if he obtains property as a result of or in connection with the conduct.”.

“(2)

(a)

(b)

(3)

(a)

(b)

(c)

(4)

Repeals and replaces section 43
Section 43 of the principal Act is repealed and replaced as follows—

“Concealing or transferring proceeds of criminal conduct
A person commits an offence if he—43 (1)

11

(a)

(b)

(c)

12

9

PROCEEDS OF CRIME AMENDMENT ACT 2015

conceals criminal property;

disguises criminal property;

converts criminal property;

transfers criminal property; or

removes criminal property from Bermuda.

But a person does not commit such an offence if—

he makes a disclosure under section 46 and (if the disclosure is
made before he does the act mentioned in subsection (1)) he has
the consent of the FIA;

he intended to make such a disclosure but had a reasonable
excuse for not doing so; or

the act he does is done in carrying out a function he has relating
to the enforcement of any provision of this Act or of any other
enactment relating to criminal conduct or benefit from criminal
conduct.

A person may be treated as having the consent of the FIA if—

he makes a disclosure to the FIA; and

the condition in subsection (4) or the condition in subsection (5) is
satisfied.

The condition is that before the end of the notice period he does not
receive notice from the FIA that consent to the doing of the act is refused.

The condition is that—

before the end of the notice period he receives notice from the FIA
that the consent to the doing of the act is refused; and

the moratorium period has expired.

The notice period is the period of seven working days commencing on
the day after a disclosure is made.

The moratorium period is the period of 45 days and shall commence
on the day that the notice is given.

For the purposes of this section—

“a working day” means a day other than a Saturday or a public holiday as
prescribed by the Public Holidays Act 1947.

Concealing or disguising criminal property includes concealing or
disguising its nature, source, location, disposition, movement or ownership or any
rights with respect to it.”.

(a)

(b)

(c)

(d)

(e)

(2)

(a)

(b)

(c)

(3)

(a)

(b)

(4)

(5)

(a)

(b)

(6)

(7)

(8)

(9)

10

PROCEEDS OF CRIME AMENDMENT ACT 2015

Amends section 44
Section 44 of the principal Act is amended by inserting next after subsection (3) the

following—

A person may be treated as having the consent of the FIA under
subsection (3)(b)(i) if—

he makes a disclosure to the FIA; and

the condition in subsection (3B) or the condition in subsection (3C)
is satisfied.

The condition is that before the end of the notice period he does not
receive notice from the FIA that consent to the doing of the act is refused.

The condition is that—

before the end of the notice period he receives notice from the FIA
that consent to the doing of the act is refused; and

the moratorium period has expired.

The notice period is the period of seven working days commencing on
the day after a disclosure is made.

The moratorium period is the period of 45 days and shall commence
on the day that the notice is given.

For the purposes of this section—

“a working day” means a day other than a Saturday or a public holiday as
prescribed by the Public Holidays Act 1947.”.

“(3A)

(a)

(b)

(3B)

(3C)

(a)

(b)

(3D)

(3E)

(3F)

Amends section 45
Section 45 of the principal Act is amended—

by deleting and substituting subsection (1) as follows—

A person commits an offence if he—

acquires criminal property;

uses criminal property; or

has possession of criminal property.”; and

“(1)

(a)

(b)

(c)

by inserting next after subsection (5) the following—

A person may be treated as having the consent of the FIA under
subsection (5)(b)(i) if—

he makes a disclosure to the FIA; and

“(5A)

(a)

13

14

(a)

(b)

11

PROCEEDS OF CRIME AMENDMENT ACT 2015

the condition in subsection (5B) or the condition in subsection (5C)
is satisfied.

The condition is that before the end of the notice period he does not
receive notice from the FIA that consent to the doing of the act is refused.

The condition is that—

before the end of the notice period he receives notice from the FIA
that consent to the doing of the act is refused; and

the moratorium period has expired.

The notice period is the period of seven working days commencing on
the day after a disclosure is made.

The moratorium period is the period of 45 days and shall commence
on the day that the notice is given.

For the purposes of this section—

“a working day” means a day other than a Saturday or a public holiday as
prescribed by the Public Holidays Act 1947.”.

(b)

(5B)

(5C)

(a)

(b)

(5D)

(5E)

(5F)

Amends section 49
Section 49 of the principal Act is amended—

in subsection (2), by—

deleting paragraph (c); and

inserting next after paragraph “(ec)” the following—

the National Coordinator;

the Registrar General;

the Registrar of Companies (including when acting in his capacity
as Superintendent of Real Estate); or”;

“(ed)

(ee)

(ef)

by inserting after subsection (5) the following—

In this section “the National Coordinator” means a person appointed
as head of the office of the National Anti-Money Laundering Committee.”.

“(5A)

Inserts section 49AA
The principal Act is amended by inserting next after section 49 the following—

“Prohibition against the import and export of proceeds of criminal conduct
A person shall not without lawful authority import into Bermuda or

export from Bermuda proceeds of criminal conduct in any form whatsoever.
49AA (1)

15

(a)

(i)

(ii)

(b)

16

12

PROCEEDS OF CRIME AMENDMENT ACT 2015

Any person who knowingly contravenes subsection (1) commits an
offence and shall be liable—

on summary conviction, to imprisonment for five years or a fine of
$50,000 or both; or

on conviction on indictment, to imprisonment for twenty years or
an unlimited fine or both.

For the avoidance of doubt, the word “goods” in section 100 of the
Revenue Act 1898 includes the proceeds of criminal conduct in any form
whatsoever.”.

(2)

(a)

(b)

(3)

Amendments to the Proceeds of Crime (Anti-Money Laundering and Anti-Terrorist Financing
Supervision and Enforcement) Act 2008

Amends section 10(3)(d)
Section 10(3)(d) of the Proceeds of Crime (Anti-Money Laundering and Anti-

Terrorist Financing Supervision and Enforcement) Act 2008 is amended by deleting the
words “, if any,”.

Amendments to the Financial Intelligence Agency Act 2007

Amends section 4
Section 4 of the Financial Intelligence Agency Act 2007 is amended—

in the headnote, by inserting next after the word “Board” the words “and
operational independence”; and

by deleting and substituting subsection (6) as follows—

The FIA shall be operationally independent and have the authority and
capacity to carry out its functions freely, including the autonomous authority to—

analyse;

request; and

disseminate,

information in accordance with the provisions of this Act.”.

“(6)

(a)

(b)

(c)

Repeals and replaces section 6
Section 6 of the Financial Intelligence Agency Act 2007 is repealed and replaced as

follows—

“Employment of officers, servants and agents
The FIA shall, subject to such terms and conditions as it thinks fit and

subject to subsection (2), employ such officers, servants and agents as it considers
6 (1)

17

18

(a)

(b)

19

13

PROCEEDS OF CRIME AMENDMENT ACT 2015

necessary for the due performance of its functions, and shall ensure that amongst
their number is a barrister and attorney.

The FIA shall ensure that all—

officers;

servants; and

agents,

have the necessary security clearances and an understanding of their
responsibilities in handling and disseminating sensitive or confidential
information.

The FIA shall, subject to the provisions of this Act, have the
independent operational authority to acquire and to deploy the necessary human
resources needed to carry out its functions—

on a singular basis; or

on an ongoing basis,

free from any undue influence (including political, governmental, or industry-
specific undue influence) of a nature that may compromise the operational
independence of the FIA.”.

(2)

(a)

(b)

(c)

(3)

(a)

(b)

Amends section 14
Section 14 of the Financial Intelligence Agency Act 2007 is amended—

in subsection (1), by deleting the word “and” at the end of paragraph (a)
and inserting after paragraph (a) the following—

of maintaining secure and restricted access to its facilities and to
the information referred to in paragraph (a), including its
information technology systems; and”; and

“(aa)

by inserting next after subsection (2) the following—

This subsection applies where the FIA receives from a foreign financial
intelligence authority a request for information relating to suspected proceeds of
criminal conduct, potential money laundering offences and potential terrorist
financing offences. The FIA may—

conduct enquires in relation to such request, in accordance with
its functions and powers under this Act; and

subject to subsection (4), disseminate to the requesting foreign
financial intelligence authority any information obtained by the
FIA in connection with the exercise of its functions.

Where a foreign financial intelligence authority makes a request for
information to the FIA, the FIA may refuse to provide information to that authority

“(3)

(a)

(b)

(4)

20

(a)

(b)

14

PROCEEDS OF CRIME AMENDMENT ACT 2015

if, in the opinion of the FIA, that authority cannot effectively protect the information
to be disseminated in accordance with subsection (3).”.

Repeals and replaces section 18
Section 18 of the Financial Intelligence Agency Act 2007 is repealed and replaced

as follows—

“Permitted disclosure and limitations
Information obtained by the FIA in connection with the exercise of its

functions may be disclosed by the FIA, of its own volition or upon request, if the
disclosure is for the purpose of enabling or assisting (“permitted purpose”)—

the FIA to discharge its functions under section 14;

the Minister of Finance, the Minister responsible for justice and
the Minister responsible for defence to discharge their functions
under any statutory provision;

the Collector of Customs, or a customs officer designated by him,
to discharge his functions under any statutory provision;

the Registrar of Companies to discharge his functions under any
statutory provision;

the Registrar-General to discharge his functions under any
statutory provision; or

the Bermuda Monetary Authority to discharge its functions under
any statutory provision.”.

18

(a)

(b)

(c)

(d)

(e)

(f)

Inserts section 21A
The Financial Intelligence Agency Act 2007 is amended by inserting next after

section 21 the following—

All information—

received;

processed;

held; or

disseminated,

by the FIA, shall be securely protected and disseminated or disclosed or used only
in accordance with agreed procedures, policies and applicable laws and
regulations.”.

“21A

(a)

(b)

(c)

(d)

21

22

15

PROCEEDS OF CRIME AMENDMENT ACT 2015

Amendments to the Criminal Justice (International Co-operation) (Bermuda) Act 1994

Amends section 11D
Section 11D of the Criminal Justice (International Co-operation) (Bermuda) Act

1994 is amended by inserting next after subsection (2) the following—

For the purposes of this section, no person who—

receives from a requesting state a request for assistance; or

obtains information directly or indirectly for the purposes of
subsection (3)(a),

shall disclose the request or the information to another person without the consent
of the requesting state.

Subsection (3) 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.

Any person who discloses information in contravention of subsection
(3) 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; or

on conviction on indictment, to imprisonment for ten years or an
unlimited fine or both.

This section shall have effect notwithstanding the provisions of the
Public Access to Information Act 2010.”.

“(3)

(a)

(b)

(4)

(5)

(a)

(b)

(6)

Amendments to the Anti-Terrorism (Financial and Other Measures) Act 2004

Repeals and replaces section 12A(1)
Section 12A(1) of the Anti-Terrorism (Financial and Other Measures) Act 2004 is

repealed and replaced as follows—

The Minister may, after consulting the National Anti-Money
Laundering Committee, make such regulations as he thinks fit for the purposes
of—

detecting and preventing the financing of terrorism; or

detecting and preventing the financing of proliferation of weapons
of mass destruction.”.

“12A (1)

(a)

(b)

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Amendments to the Companies Act 1981

Inserts section 64A
The Companies Act 1981 is amended by inserting next after section 64 the following—

“Register of Directors
Every company registered in Bermuda shall file with the Registrar a current

listing of directors, in such form as prescribed in accordance with this section, and it shall
be produced—

annually; and

whenever there has been a change to its listing of directors.

The current listing of directors must contain the following particulars with
respect to each director—

in the case of an individual, his present first name, surname and address;
and

in the case of a company, its name and the address of its registered office.

The Registrar shall keep a register in accordance with subsection (2) and
section 273 containing a current listing of directors of companies registered in Bermuda, and
such register shall be available for public inspection, on payment of such fee as may be
prescribed.

If default is made in complying with subsection (1) or (2), by a company
registered in Bermuda, an offence is committed by—

the company; and

every officer of the company.

If default is made in complying with this section the company or every officer
of the company who is in default shall be liable to a default fine.”.

64A (1)

(a)

(b)

(2)

(a)

(b)

(3)

(4)

(a)

(b)

(5)

Amendments to the Revenue Act 1898

Repeals and replaces section 85
Section 85 of the Revenue Act 1898 is repealed and replaced as follows—

“Penalty for false documents or statements
If any person, in connection with a customs and excise matter, makes,

signs, or submits or uses a document or makes a statement before a customs officer
or otherwise, which is untrue in any particular, the person making, signing,
submitting or using the document or making the statement shall forfeit and pay a
sum in the level 4 amount.

Any person who, with intent to deceive, in connection with a customs
and excise matter—

85 (1)

(2)

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makes, signs, submits or uses a document or makes a statement
before a customs officer or otherwise, which is untrue in any
material particular; or

counterfeits any document or any seal, signature, initials, or other
mark on any document,

shall be guilty of an offence and liable on conviction on indictment to imprisonment
for up to a maximum of 5 years or to a maximum fine of the level 7 amount or to
both such imprisonment and fine.

In addition to any penalty under subsection (1) or (2), the goods in
respect of which the document is made, signed, submitted or used, or the statement
is made shall be liable to forfeiture.

In this section—

“a customs and excise matter” includes—

the collection or protection of revenue;

the importation or exportation of any goods; or

the removal of goods from a bonded warehouse or a customs
area.”.

(a)

(b)

(3)

(4)

(a)

(b)

(c)

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

Amends regulation 2
Regulation 2 of the Proceeds of Crime (Anti-Money Laundering and Anti-Terrorist

Financing) Regulations 2008 (the “principal Regulations”) is amended—

in paragraph (1), by inserting, in the appropriate alphabetical order, the
following—

“ “AML” means anti-money laundering;

“ATF” means anti-terrorist financing;

“chief executive” means a person who, either alone or jointly with one or
more persons, is responsible under the immediate authority of the
directors for the conduct of the business of a legal entity or legal
arrangement;

“Compliance Officer” has the meaning given in regulation 18A;

“International Organisation” means an organisation—

that is established by formal political agreement between its
member countries, where such agreement has the status of
international treaty;

(a)

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(a)

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whose existence is recognised by law in its member countries; and

that is not treated as a resident institutional unit of the country in
which it is located;

“Reporting Officer” means a person designated to carry out the functions
set out in regulation 17;”; and

(b)

(c)

in paragraph (2)(i), by deleting “section 8” and by substituting “section 4”.

Amends regulation 3(3)
Regulation 3(3) of the principal Regulations is amended—

by deleting the full-stop at the end of paragraph (c) and replacing it with a
semi-colon; and

by inserting next after paragraph (c) the following—

the settlor of the trust.”.“(d)

Amends regulation 5
Regulation 5 of the principal Regulations is amended—

by deleting the word “and” at the end of paragraph (b);

by deleting paragraph (c) and substituting the following—

in the case of a legal entity or legal arrangement, identifying the
name and verifying the identity of the relevant natural person
having the position of chief executive or a person of equivalent or
similar position;

in the case of a legal entity, identifying and verifying the identity of
a natural person (either customer, beneficial owner, person of
control or ownership) by some means and, where no natural
person has been identified, identifying a relevant natural person
holding the position of—

a chief executive; or

a person of equivalent or similar position to the official under
subparagraph (i); and

obtaining information on and taking steps to understand the
purpose and intended nature of the business relationship;”

“(c)

(d)

(i)

(ii)

(e)

Amends regulation 6
Regulation 6 of the principal Regulations is amended—

by inserting after paragraph (1) the following—

(b)

28

(a)

(b)

29

(a)

(b)

30

(a)

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Subject to paragraph (1), in the case of a trust or life insurance policy,
a relevant person shall apply customer due diligence measures on a beneficiary as
soon as the beneficiary is designated—

for a beneficiary that is identified as a specifically named natural
person, legal entity or legal arrangement, taking the name of the
person, entity or arrangement;

for a beneficiary that is designated by characteristics or by class,
obtaining sufficient information concerning the beneficiary to
satisfy the relevant person that it will be able to establish the
identity of the beneficiary at the time of payout.”;

“(1A)

(a)

(b)

in paragraph (3)(a), by inserting next after the words “business
relationship,” the words “geographic areas, services, delivery channels,”;
and

by inserting next after paragraph (4) the following—

A relevant person shall not perform customer due diligence measures
where doing so may result in a disclosure (tipping off) to any other person—

information; or

any other matter,

which is likely to prejudice an investigation or proposed investigation.

Where a relevant person is unable to perform customer due diligence
in accordance with paragraph (5) he shall, in lieu, file the necessary disclosure with
the FIA.

For the purpose of paragraph (1A), “beneficiary” means the person
named as beneficiary in a life insurance policy or a trust instrument.”.

“(5)

(a)

(b)

(6)

(7)

Amends regulation 8
Regulation 8 of the principal Regulations is amended—

in paragraph (1), by—

inserting after the words “regulations 6(1)(a) and (b)”, the words “and
regulation 6(1A)”;

deleting the words “regulations 5(a) and (b)” and substituting the words
“regulation 5”;

in paragraph (3), by—

deleting the full stop at the end of paragraph “(b)” and substituting “;
and” ;

inserting next after paragraph (b) the following—

(b)

(c)

31

(a)

(i)

(ii)

(b)

(i)

(ii)

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PROCEEDS OF CRIME AMENDMENT ACT 2015

any money laundering or terrorist financing risks that may arise
are effectively managed.”;

“(c)

in paragraph (4), by—

inserting next after the words “life insurance policy” the words “or a
trust”; and

inserting next after the words “under the policy” the words “or trust”.

Amends regulation 10
Regulation 10 of the principal Regulations is amended—

in paragraph (1), by—

deleting the words “regulation 5(a), (b) or (c)” and substituting the words
“regulation 5”;

deleting the words “6(1)(a), (b) or (d)” and substituting the words “6(1)
(a) or (b), or regulation 6(1A)”;

in paragraph (2)(b), by—

deleting the word “and” at the end of subparagraph (i); and

inserting after subparagraph (i) the following—

has effectively implemented those requirements; and”;“(ii)

renumbering the existing subparagraph (ii) as subparagraph (iii); and

in paragraph (4)(a), by—

deleting the word “and” at the end of subparagraph (i);

inserting after subparagraph (i) the following—

the independent professional has effectively implemented
those requirements; and”;

“(ii)

renumbering the existing subparagraph (ii) as subparagraph (iii).

Amends regulation 11
Regulation 11 of the principal Regulations is amended—

in paragraph (1), by deleting paragraph (aa) and substituting the
following—

in instances where a person or a transaction is from or in a country
that has been identified as having a higher risk by the Financial
Action Task Force;

“(aa)

(c)

(i)

(ii)

32

(a)

(i)

(ii)

(b)

(i)

(ii)

(iii)

(c)

(i)

(ii)

(iii)

33

(a)

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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;”;

(ab)

in paragraph (4), by deleting the word “A” and by substituting the words
“Subject to paragraph (6B), a”;

in paragraph (5), by deleting the words “paragraph (6)” and by substituting
the words “paragraphs (6) and (6A)”;

at the beginning of paragraph (6), by inserting next after the word “in” the
words “or from”;

in paragraph (6)(a), by inserting immediately after the word “functions” the
words “or a prominent function by an international organisation”; and

by inserting next after paragraph (6) the following—

This paragraph applies to any of the following persons who are in or
from Bermuda—

an individual who is or has, at any time in the preceding year, been
entrusted with prominent public functions or a prominent
function by an international organisation;

a person who falls into any of the categories listed in paragraph
2(1)(a) of the Schedule;

an immediate family member of a person referred to in
subparagraph (a), including a person who falls into any of the
categories listed in paragraph 2(1)(d) of the Schedule; or

a known close associate of a person referred to in subparagraph
(a), including a person who falls into either of the categories listed
in paragraph 2(1)(e) of the Schedule.

In relation to a person described in paragraph (6A), where a relevant
person determines that the business relationship or occasional transaction with
that person is a higher risk, then the relevant person must carry out the enhanced
due diligence measures set out in paragraph (4).”.

“(6A)

(a)

(b)

(c)

(d)

(6B)

Amends regulation 12(1)
Regulation 12(1) of the principal Regulations is amended by deleting the words

which follow immediately after the words “other than Bermuda”, and by substituting
therefor the following—

to adopt group-wide policies and procedures that—

facilitate the sharing of customer due diligence and transaction
information; and

“(a)

(i)

(b)

(c)

(d)

(e)

(f)

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ensure adequate safeguards on the confidentiality and use of
information exchanged,

in order to manage the risk of money laundering and terrorist
financing through the application of AML/ATF compliance
functions; and

to apply, to the extent permitted by the law of that country or
territory, measures at least equivalent to those set out in these
Regulations with regard to customer due diligence measures,
ongoing monitoring and record-keeping.”.

(ii)

(b)

Amends regulation 14(1)(b)(i)
Regulation 14(1)(b)(i) of the principal Regulations is amended by inserting next after

the word “must” the word “immediately”.

Inserts regulation 14A
The principal Regulations are amended by inserting next after regulation 14 the

following—

“Outsourcing
Where a relevant person delegates its AML/ATF compliance function

to another entity (outsourcing), the relevant person shall retain ultimate
responsibility for the AML/ATF compliance function.

In this regulation, ultimate responsibility includes the obligation to—

ensure that the provider of the outsourced AML/ATF compliance
function has in place—

AML/ATF systems;

AML/ATF controls; and

AML/ATF procedures,

that are in compliance with the Bermuda AML/ATF requirements;

consider the effect that outsourcing compliance functions has on
the money laundering and terrorist financing risk;

assess the money laundering and terrorist financing risk
associated with outsourced functions and record its assessment;
and

monitor any perceived risk on an ongoing basis and, where the
compliance functions (Compliance Officer or Reporting Officer) are
involved to—

ensure that the roles, responsibilities and respective duties are
clearly defined and documented; and

14A (1)

(2)

(a)

(i)

(ii)

(iii)

(b)

(c)

(d)

(i)

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ensure that the Compliance Officer or Reporting Officer and all
employees understand the roles, responsibilities and the
respective duties of all parties.

Where a relevant person delegates its compliance function to another
entity (outsourcing), the relevant person shall adopt policies and procedures to
monitor and manage the service provider carrying out those compliance functions.

In this regulation, “outsourcing” and “outsourced” means—

AML/ATF systems;

AML/ATF controls; and

AML/ATF procedures,

obtained outside of a relevant person.”.

(ii)

(3)

(4)

(a)

(b)

(c)

Amends regulation 15
Regulation 15 of the principal Regulations is amended by inserting next after

paragraph (7) the following—

A relevant person must not rely on a person referred to in regulation
14(2)(c) (a third party) or enter into outsourcing arrangements, referred to in
regulation 14A, where access to records specified under this regulation in
paragraphs (2) and (5A) without delay is likely to be impeded by confidentiality or
data protection restrictions.”.

“(7A)

Amends regulation 16(1)
Regulation 16(1) of the principal Regulations is amended—

in regulation 16(1), by inserting after the words “risk-sensitive policies and
procedures” the words “, approved by its governing body,”;

in regulation 16(1), by deleting paragraph (e) and by substituting the
following—

the performance and documentation of any products or services
(prior to launch) and the continual documentation of risk
assessment and management of such products and services, in a
form available to share with the supervisory authority;

risk mitigation mechanisms which include—

consideration of the national or of the relevant person’s risk
assessment results or conclusions;

the ability to effectively supply information to the supervisory
authority; and

the application of enhanced measures where the relevant
person’s risk assessments identify a higher risk;”; and

“(e)

(ea)

(i)

(ii)

(iii)

37

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(a)

(b)

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by inserting next after paragraph (1) the following—

Where a relevant person intends to introduce a new product, practice
or technology, the relevant person must perform and document a risk assessment
prior to the launch of such product, practice or technology.”.

“(1A)

Amends regulation 17
Regulation 17 of the principal Regulations is amended—

in paragraph (1), by inserting after the words “A relevant person must”, the
words “appoint a Reporting Officer and”;

in paragraph (1)(a), by deleting the words “the reporting officer to whom a
report is to be made” and by substituting “a report is to be made to the
Reporting Officer”;

in paragraphs 1(b), 1(c) and 1(d), by deleting (where they appear) the words
“reporting officer” and by substituting the words “Reporting Officer”; and

by inserting after paragraph (2) the following—

The relevant person shall be responsible for ensuring its Reporting
Officer is adequately trained to carry out the role.”.

“(3)

Inserts regulation 17A
The principal Regulations are amended by inserting after regulation 17 the

following—

“Independent audit function
A relevant person must maintain an independent audit function to be

conducted by a qualified independent third party or internally by persons
independent of any other function, the lines of business over which the function
has audit responsibilities, and financial operations.

An independent audit function must provide and document an
independent and objective evaluation of the robustness of the AML/ATF
framework, and the reliability, integrity and completeness of the design and
effectiveness of the AML/ATF risk management function and AML/ATF internal
controls framework, and the AML/ATF compliance.”.

17A (1)

(2)

Amends regulation 18
Regulation 18 of the principal Regulations is amended by inserting next after

paragraph (2) the following—

For the purposes of paragraph (1), the relevant employee includes an
individual working on a temporary basis whether under a contract of employment,
contract for services or otherwise.”.

“(3)

(c)

39

(a)

(b)

(c)

(d)

40

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Inserts regulation 18A
The principal Regulations are amended by inserting next after regulation 18 the

following—

“Compliance officer
A relevant person shall designate a person employed at managerial

level as the Compliance Officer of that AML/ATF regulated financial institution.

The relevant person shall be responsible for ensuring its Compliance
Officer is adequately trained to carry out the role.

The Compliance Officer shall—

ensure that the necessary compliance programme procedures and
controls required by these Regulations are in place; and

coordinate and monitor the compliance programme to ensure
continuous compliance with these Regulations.

A Compliance Officer may also be appointed as a Reporting Officer.”.

18A (1)

(2)

(3)

(a)

(b)

(4)

Amends regulation 21
Regulation 21 of the principal Regulations is amended by inserting before the

definition of “complete information on the payer”, the following—

“ “complete information on the payee” means information consisting of the
payee’s name and account number, but where the payee does not have
an account number, the payee’s PSP shall substitute it with a unique
identifier that allows the transaction to be traced to the payee;”.

Amends regulation 23
Regulation 23 of the principal Regulations is amended—

in paragraph (1), by deleting the full-stop at the end of paragraph (1) and
by substituting the words “and payee,”; and

by deleting paragraph (5) and by substituting the following new paragraphs
(5) and (6)—

A payer’s PSP shall not allow the transfer of funds in accordance with
this regulation if the required information for doing so is not available.

The payer’s PSP shall for five years keep records of complete
information on the payer and payee that accompanies transfers of funds.”.

“(5)

(6)

Amends regulation 25
Regulation 25 of the principal Regulations is amended—

in paragraph (a), by inserting after the word “payer” the words “and payee”;
and

42

43

44

(a)

(b)

45

(a)

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in paragraph (b), by—

inserting after the word “payer” the words “and payee”; and

inserting after the word “identifier” the words “where an account
number is not available”.

Amends regulation 26
Regulation 26 of the principal Regulations is amended—

in the headnote, by inserting after the word “payer” the words “or payee”;

in paragraph (1), by inserting after the word “payer” the words “or payee”;

in paragraph (2), by inserting after the word “payer” the words “or payee”;

in paragraph (2)(b), by inserting after the word “payer,” the word “and
payee”; and

in paragraph (2)(c) by inserting after the word “payer” the words “and
payee”.

Amends regulation 27
Regulation 27 of the principal Regulations is amended—

in the headnote, by inserting after the word “payer” the words “or payee”;
and

in paragraph (1), by inserting after the word “payer” the words “or payee”.

Amends regulation 29
The principal Regulations are amended by deleting and substituting regulation 29

as follows—

“Timing of verification and record keeping
The payee’s PSP shall, before transferring funds, verify the complete

information on the payee on the basis of documents, data or information obtained
from a reliable and independent source.

In the case of transfers of funds from an account, the complete
information on a payee shall be deemed to have been verified if the payee’s PSP has
complied with the requirements of customer due diligence under Part 2.

In the case of transfers of funds not made from an account, the payee’s
PSP shall verify the information on the payee only where the amount exceeds
$1,000, unless the transaction is carried out in several operations that appear to
be linked and together exceed $1,000.

The payee’s PSP shall keep for five years records of any information
received on the payer and payee.”.

29 (1)

(2)

(3)

(4)

(b)

(i)

(ii)

46

(a)

(b)

(c)

(d)

(e)

47

(a)

(b)

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Amends regulation 30
Regulation 30 of the principal Regulations is amended—

in the headnote, by inserting after the word “payer” the words “and payee”;
and

by inserting after the word “payer” the words “and payee”.

Amends regulation 31
Regulation 31 of the principal Regulations is amended—

in paragraph (2), by—

inserting after the word “payer” the words “or payee”;

after the words “transfers of funds to the”, substituting the word
“payer’s” with the word “payee’s”;

in paragraph (3), by inserting after the words “information on the payer”
the words “or payee”; and

in paragraph (4), by inserting after the word “payer” the words “or payee”.

Amends the Schedule
The Schedule to the principal Regulations is amended by inserting after paragraph

2(2) the following—

For the purposes of regulation 11(6A)—

individuals who are or have been entrusted with prominent public
functions include the following—

the Governor, Premier, Ministers and Junior Ministers;

Members of the Legislature;

Permanent Secretaries;

Judges of the Supreme Court and Court of Appeal and
Magistrates;

members of the Board or senior management of the Bermuda
Monetary Authority and the Bermuda Regulatory Authority;

commissioned officers in the Royal Bermuda Regiment and
senior officers above the rank of Sergeant (which includes the
Commissioner of Police) of the Bermuda Police Service; and

members of the Board of Directors and the Chief Executive
Officer (by whatever name called) of the Bermuda Government
owned or controlled enterprises or authorities, including but
not limited to— West End Development Corporation; Bermuda
Land Development Corporation; Bermuda Development

“(3)

(a)

(i)

(ii)

(iii)

(iv)

(v)

(vi)

(vii)

49

(a)

(b)

50

(a)

(i)

(ii)

(b)

(c)

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Agency; Bermuda Tourism Authority; Bermuda Deposit
Insurance Corporation; Bermuda Casino Gaming Commission;

the categories set out in subparagraphs (i) to (vi) of paragraph (a)
do not include middle-ranking or more junior officials;

the categories set out in subparagraphs (i) to (v) of paragraph (a)
include, where applicable, positions at domestic and international
levels;

immediate family members include the following—

a spouse;

children and their spouses; and

parents;

persons known to be close associates include the following—

any individual who is known to have joint beneficial ownership
of a legal entity or legal arrangement, or any other close
business relations, with a person referred to in regulation
11(6A)(a); and

any individual who has sole beneficial ownership of a legal
entity or legal arrangement which is known to have been set up
for the benefit of a person referred to in regulation 11(6A)(a).”.

(b)

(c)

(d)

(i)

(ii)

(iii)

(e)

(i)

(ii)

Commencement

Commencement
The provisions of this Act shall come into operation on such date or on such

days as the Minister may appoint by notice in the Gazette.

The Minister may appoint different days for the provisions of this Act to come
into operation.

[Assent Date: 23 December 2015]

[Operative Date: 01 January 2016]

52 (1)

(2)

29