Proceeds of Crime Act
MONTSERRAT

CHAPTER 4.04
PROCEEDS OF CRIME ACT and Subsidiary Legislation

Revised Edition showing the law as at 1 January 2008
This is a revised edition of the law, prepared by the Law Revision Commissioner under the authority of the Revised Edition of the Laws Act.
This edition contains a consolidation of the following laws— Page PROCEEDS OF CRIME ACT 3 Act 20 of 1999 .. in force 28 February 2000 Amended by Acts: 10 of 2000 11 of 2002 .. in force 11 February, 2003 5 of 2004 .. in force 1 January 2005 (S.R.O. 72/2005)
REPORTING AUTHORITY (CONSTITUTION AND PROCEDURE) ORDER – Section 30 65 S.R.O. 53/2002 .. in force 15 October 2002 PROCEEDS OF CRIME (DESIGNATED COUNTRIES AND TERRITORIES) ORDER – Section 41 67 S.R.O. 59/2000 .. in force 15 June 2000
ANTI-MONEY LAUNDERING REGULATIONS – Section 49 77 S.R.O. 63/2005 .. in force 4 October 2005


MONTSERRAT

CHAPTER 4.04
PROCEEDS OF CRIME ACT and Subsidiary Legislation

Revised Edition showing the law as at 1 January 2008
This is a revised edition of the law, prepared by the Law Revision Commissioner under the authority of the Revised Edition of the Laws Act.
This edition contains a consolidation of the following laws— Page PROCEEDS OF CRIME ACT 3 Act 20 of 1999 .. in force 28 February 2000 Amended by Acts: 10 of 2000 11 of 2002 .. in force 11 February, 2003 5 of 2004 .. in force 1 January 2005 (S.R.O. 72/2005)
REPORTING AUTHORITY (CONSTITUTION AND PROCEDURE) ORDER – Section 30 65 S.R.O. 53/2002 .. in force 15 October 2002 PROCEEDS OF CRIME (DESIGNATED COUNTRIES AND TERRITORIES) ORDER – Section 41 67 S.R.O. 59/2000 .. in force 15 June 2000
ANTI-MONEY LAUNDERING REGULATIONS – Section 49 77 S.R.O. 63/2005 .. in force 4 October 2005

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CHAPTER 4.04
PROCEEDS OF CRIME ACT
ARRANGEMENT OF SECTIONS
PART I
PRELIMINARY
SECTION 1. Short title 2. Interpretation
PART II
GENERAL PROVISIONS
3. Application 4. Property and references to property 5. Realisable property 6. Value of property 7. Gifts 8. Proceedings 9. Application, appeals etc
PART III
CONFISCATION ORDERS, RESTRAINT ORDERS, CHARGING ORDERS AND RELATED MATTERS
10. Amount to be recovered under confiscation Order 11. Making of confiscation Orders 12. Confiscation relating to a course of criminal conduct 13. Postponed determinations 14. Statement etc, relevant to making confiscation Orders 15. Provision of information by defendant 16. Review of cases where proceeds of crime not assessed 17. Revision of assessment of proceeds of crime 18. Revision of assessment of amount to be recovered 19. Restraint Orders 20. Charging Orders 21. Cases in which restraint Orders and charging Orders may be made
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22. Realisation of property 23. Application of proceeds of realization and other sums 24. Exercise of powers by high court or receiver 25. Variation of confiscation Orders 26. Bankruptcy of defendant etc. 27. Winding up of company holding realisable property 28. Supplementary provisions relating to receivers 29. Compensation
PART IV
OFFENCES, ENFORCEMENT AND RELATED MATTERS
30. Code of Practice and Reporting Authority 31. Assisting another person to retain the benefit of criminal conduct 32. Acquisition, possession or use of property representing proceeds of
criminal conduct 33. Concealing or transferring proceeds of criminal conduct 33A. Requirement to disclose knowledge or suspicion of money laundering 34. Tipping Off 35. Application of procedure for enforcing fines 36. Interest 37. Powers of arrest 38. Order to make material available 39. Authority for search 40. Rules for establishing mens rea 40A. Account monitoring orders
PART V
MISCELLANEOUS
41. Enforcement of external confiscation Orders and proceedings 42. Registration of external confiscation Order 43. Proof of Orders and judgment of courts of designated country 44. Evidence in relation to proceedings and Orders in a designated country 45. Representation of Government of a designated country 46. Satisfaction of confiscation Order in a designated country 47. Currency conversion 48. Rules of court 49. Regulations SCHEDULE
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CHAPTER 4.04
PROCEEDS OF CRIME ACT
(Acts 20 of 1999, 10 of 2000, 11 of 2002 and 5 of 2004)
AN ACT TO PROVIDE FOR THE FORFEITURE OR CONFISCATION OF THE PROCEEDS OF CERTAIN CRIMES, FOR THE PREVENTION OF MONEY LAUNDERING AND FOR MATTERS CONNECTED THEREWITH.
Commencement
[28 February 2000]
PART I
PRELIMINARY
Short title 1. This Act may be cited as the Proceeds of Crime Act.
Interpretation 2. (1) In this Act—
“a court of a designated country” includes a court of any state or territory of a designated country;
“appropriate authority of a designated country” means an authority specified as such in an order made under section 40;
“charging Order” means an Order made under section 20; “confiscation Order” means an Order made by a court under section 11; “court” means the High Court; “criminal conduct” means conduct which constitutes an offence to which
this Act applies or would constitute such an offence if it occurred in Montserrat;
“drug money laundering” has the meaning specified in the Drug Trafficking Offences Act;
“drug trafficking offence” has the meaning given in section 2 of the Drug Trafficking Offences Act;
“external confiscation Order” means an Order made by a court in a designated country for the purpose—
(a) of recovering—
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(i) property obtained as a result of or in connection with conduct corresponding to an offence to which this Act applies; or
(ii) the value of property so obtained; or (b) of depriving a person of a pecuniary advantage so obtained;
and the reference in this definition to an Order includes any Order, decree, direction or judgment or any part thereof, however described; “interest”, in relation to property, includes right; “modifications” includes additions, alterations and omissions; “money laundering” means doing any act that constitutes an offence
under section 31, 32 or 33 of this Act or, in the case of an act done otherwise than in Montserrat, doing an act that would constitute such an offence if done in Montserrat;:
“nominated officer” means a person designated by his employer to receive disclosures of suspicious transactions.
“professional legal adviser” means a person who has obtained qualifications prescribed under the Supreme Court Act or any subsequent or related legislation entitling him to practice before the Eastern Caribbean Supreme Court;
“proceeds of criminal conduct” include a reference to any property real or personal, heritable or movable including things in action and other intangible or incorporeal property which in whole or in part, directly or indirectly represents in his hands his proceeds of criminal conduct;
“property” includes money and all other property, real or personal including things in action and other intangible or incorporeal property;
“regulations” means the regulations made under section 49; “relevant criminal conduct” means in relation to a person convicted of an
offence to which this Act applies that offence taken together with any other offences of which he is convicted in the same proceedings or which are to be taken into consideration in determining his sentence on conviction;
“relevant financial business” means a business prescribed as a relevant financial business in the regulations;
“Reporting Authority” means the Reporting Authority appointed under section 30;
“restraint Order” means an Order made by the High Court under section 18.

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(2) For the purposes of the definition of “money laundering” in subsection (1), having possession of any property shall be taken to be doing an act in relation to it.
(Amended by Act 5 of 2004)
PART II
GENERAL PROVISIONS
Application 3. (1) This Act applies to property wherever situated.
(2) References in this Act to an offence to which this Act applies are references to all indictable offences except drug trafficking offences.
(3) Nothing in this Act confers power on any court in connection with offences committed before the commencement of this Act or proceedings against a person for an offence instituted before such commencement.
Property and references to property 4. For the purposes of this Act—
(a) property is held by a person if he holds an interest in it; (b) property is transferred by one person to another if the first
person transfers or grants to the other an interest in the property;
(c) references— (i) to property held by a person include a reference to
property vested in his trustee in bankruptcy or liquidator; (ii) to an interest held by a person beneficially in property
include a reference to an interest which would be held by him beneficially if the property were not so vested;
(iii) to property obtained, or to a pecuniary advantage derived, in connection with the commission of an offence include a reference to property obtained, or to a pecuniary advantage derived both in that connection and in some other connection.
Realisable property 5. (1) Subject to subsection (2), “realisable property” means—
(a) any property held by the defendant; and (b) any property held by a person to whom the defendant has
directly or indirectly made a gift caught by this Act.
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(2) Property is not realisable property if an Order under section 28 of the Drugs (Prevention of Misuse) Act is in force in respect of the property.
(3) For the purpose of this Act, the amount that might be realised at the time a confiscation Order is made is—
(a) the total value at that time of all the realisable property held by the defendant, less,
(b) where there are obligations having priority at that time, the total amounts payable in pursuance of such obligations,
together with the total value at that time of all gifts caught by this Act. (4) For the purposes of subsection (3) an obligation has priority if it
is an obligation of the defendant to pay an amount due in respect of a fine, or other Order of a court, imposed or made on conviction of an offence, where the fine was imposed or Order made before the confiscation Order.
Value of property 6. (1) Subject to the provisions of this section, the value of property
(other than cash), in relation to any person holding the property is— (a) where any other person holds an interest in the property,
(i) the market value of the first-mentioned person’s beneficial interest in the property, less
(ii) the amount required to discharge any incumbrance (other than a charging Order) on that interest; and
(b) in any other case, its market value. (2) References in this Act to the value at any time (referred to in
subsection (3) as “the material time”) of any property obtained by a person as a result of or in connection with the commission of an offence are references—
(a) to the value of the property to him when he obtained it, adjusted to take account of subsequent changes in the value of money; or
(b) to, where subsection (3) applies, the value mentioned in that subsection,
whichever is the greater. (3) If at the material time the person holds—
(a) the property (not being cash) which he obtained; or (b) property which, in whole or in part, directly or indirectly
represents in his hands the property which he obtained, the value referred to in subsection 2(b) is the value to him at the material time of the property mentioned in paragraph (a) above or, as the case may
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be of the property mentioned in paragraph (b) above, so far as it represents the property which he obtained but disregarding any charging Order.
(4) Subject to section 7(3), references in this Act to the value at any time (referred to in subsection (5) as “the material time”) of a gift caught by this Act are references—
(a) to the value of the gift to the recipient when he received it, adjusted to take account of subsequent changes in the value of money; or
(b) to, where subsection (5) applies, the value mentioned in that subsection,
whichever is the greater. (5) Subject to section 7(3) if at the material time the person holds—
(a) the gift (not being cash) which he received; or (b) property which, in whole or in part, directly or indirectly
represents in his hands the gift which he received, the value referred to in subsection (4) is the value to him at the material time of the property mentioned in paragraph (a) above or, as the case may be, of the property mentioned in paragraph (b) above so far as it represents the property which he received, but disregarding any charging Order.
Gifts 7. (1) A gift is caught by this Act if—
(a) it was made by the defendant at any time after the commission of the offence or, if more than one such offence, the earliest of the offences to which the proceedings relate; and
(b) the court considers it appropriate in all the circumstances to take the gift into account.
(2) The reference in subsection (1) to an offence to which the proceedings relate includes, where the proceedings have resulted in the conviction of the defendant, a reference to an offence which the court takes into consideration, when determining sentence.
(3) For the purpose of this Act— (a) the circumstances in which the defendant is to be treated as
making a gift include those where he transfers property to another person directly or indirectly for a consideration the value of which is significantly less than the value of the consideration provided by the defendant; and
(b) in those circumstances, the preceding provisions of this section and section 6 shall apply as if the defendant has made a gift of such share in the property as bears to the whole
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property the same proportion as the difference between the values referred to in paragraph (a) above bears to the value of the consideration provided by the defendant.
Proceedings 8. (1) Proceedings for an offence are instituted—
(a) when a summons or warrant is issued in respect of the offence;
(b) when a person is charged with the offence after being taken into custody without a warrant;
(c) when an indictment is preferred, and where the application of this paragraph would result in there being more than one time for the institution of proceedings, they shall be taken to have been instituted at the earliest of those times.
(2) Proceedings for an offence are concluded— (a) when the defendant is acquitted on all counts or, as the case
may be, every charge against him is dismissed; (b) if he is convicted on one or more counts but the court decides
not to make a confiscation Order against him when the court makes that decision;
(c) if he is sentenced without the court having considered whether or not to proceed under section 11 in his case, when he is sentenced; or
(d) if a confiscation Order is made against him in those proceedings when the Order is satisfied.
Applications, appeals etc 9. (1) An application under section 16, 17, or 18 is concluded—
(a) if the court decides not to make or, as the case may be, not to vary an Order against the defendant on that application, when it makes that decision;
(b) if an Order against the defendant is made or varied on that application, when the Order is satisfied; or
(c) if the application is withdrawn, when the prosecutor notifies the withdrawal of the application to the court to which it was made.
(2) A confiscation Order is satisfied when no amount is due under it. (3) An Order is subject to appeal until (disregarding any power of a
court to grant leave to appeal out of time) there is no further possibility of an appeal on which the Order could be varied or set aside.
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(4) For the purpose of section 26 a confiscation Order shall be treated as satisfied when the defendant in respect of whom it was made has served a term of imprisonment in default of payment of the amount due under the Order.
PART III
CONFISCATION ORDERS, RESTRAINT ORDERS, CHARGING ORDERS AND RELATED MATTERS
Amount to be recovered under confiscation Order 10. (1) Subject to subsection 11(4) the amount which a convicted person
is required to pay by an Order under section 11 shall be equal to— (a) the benefit in respect of which it is made; or (b) the amount appearing to the court to be the amount that
might be realised at the time the Order is made, whichever is less.
(2) For the purposes of this section a person benefits from an offence if he obtains property as a result of or in connection with its commission and his benefit is the value of the property so obtained.
(3) Where a person derives a pecuniary advantage as a result of or in connection with the commission of an offence to which this Act applies, he is to be treated for the purposes of this Act as if he has obtained as a result of or in connection with the commission of the offence, a sum of money equal to the value of the pecuniary advantage.
Making of confiscation Orders 11. (1) On the conviction of any person of an offence to which this Act
applies the court shall— (a) if the prosecutor has given written notice to the court that he
considers it an appropriate case for the court to proceed under this section; or
(b) if the court considers that even though it has not been given such notice it would be appropriate for it so to proceed,
proceed in the manner provided by this section before sentencing or otherwise dealing with the person in respect of that offence or any other relevant criminal conduct.
(2) The court shall first determine whether the offender has benefited from any relevant criminal conduct.
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(3) Subject to subsection (4), if the court determines that the offender has so benefited it shall—
(a) determine in accordance with section 10, the amount to be recovered; and
(b) make an Order under this section ordering him to pay the amount so determined.
(4) If the court is satisfied that a victim of any relevant criminal conduct from which the defendant has benefited or which is to be taken into consideration in determining sentence, has instituted, or intends to institute, civil proceedings against the defendant in respect of loss, injury or damage sustained in connection with that conduct the following rules shall apply—
(a) the court may notwithstanding, make an Order under this section;
(b) the amount to be recovered shall not be determined in accordance with section 10, but shall be such amount (not exceeding the amount recoverable by virtue of section 10) as the court, having regard to the circumstances thinks just.
(5) Where the court makes a confiscation Order against a defendant, it shall, in respect of any offence of which he is convicted in those proceedings take account of the Order before—
(a) imposing any fine on him; or (b) making any Order involving any payment by him, other than
an Order under section 28 of the Penal Code; (c) making any Order under section 28 of the Drug (Prevention
of Misuse) Act, but, subject to this subsection shall leave the Order out of account in determining in relation to any offence in respect of which he has not been sentenced or otherwise dealt with the appropriate sentence or other manner of dealing with him.
(6) Where a convicted person is being dealt with by a court in a particular way, and the court is thereby, by virtue of any enactment, precluded from dealing with him in any other way, the making of a confiscation Order shall not, for the purpose of that enactment be taken as dealing with him in any other way.
(7) Notwithstanding subsection (5)(b) where— (a) a court makes both a confiscation Order and an Order for the
payment of compensation under section 28 of the Penal Code against the same person in the same proceedings; and
(b) it appears to the court that he will not have sufficient means to satisfy both Orders in full,
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it shall direct that so much of the compensation as will not in its opinion be recoverable because of the insufficiency of his means shall be paid out of any sums recovered under the confiscation Order.
(8) The standard of proof required to determine any question arising under the Act as to—
(a) whether any person benefited from the commission of an offence;
(b) the amount to be recovered, shall be that applicable in civil proceedings.
Confiscation relating to a course of criminal conduct 12. (1) This section applies in a case where a defendant is convicted, in
any proceedings before the court of a qualifying offence, if— (a) the prosecutor gives written notice for the purposes of
subsection (1)(a) of section 11; (b) that notice contains a declaration that it is the prosecutor’s
opinion that the case is one in which it is appropriate for the provisions of this section to be applied; and
(c) the defendant— (i) is convicted in those proceedings of at least two
qualifying offences (including the offence in question); or
(ii) has been convicted of a qualifying offence on at least one previous occasion during the relevant period.
(2) In this section “qualifying offence” means any offence in relation to which all the following conditions are satisfied, that is to say—
(a) it is an offence to which this Act applies; (b) it is an offence which was committed after the
commencement of this Act; and (c) that court is satisfied that it is an offence from which the
defendant has benefited. (3) When proceeding under section 11 in pursuance of the notice
mentioned in subsection (1)(a) above, the court may, if it thinks fit, determine that (subject to subsection (5) below) the assumptions specified in subsection (4) below are to be made for the purpose—
(a) of determining whether the defendant has benefited from relevant criminal conduct; and
(b) if he has, of assessing the value of the defendant’s benefit from such conduct.
(4) Those assumptions are—
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(a) that any property appearing to the court— (i) to be held by the defendant at the date of conviction or at
any time in the period between that date and the determination in question, or
(ii) to have been transferred to him at any time since the beginning of the relevant period,
was received by him, at the earliest time when he appears to the court to have held it, as a result of or in connection with the commission of offences to which this Act applies;
(b) that any expenditure of his since the beginning of the relevant period was met out of payments received by him as a result of or in connection with the commission of offences to which this Act applies; and
(c) that, for the purposes of valuing any property which he had or which he is assumed to have had at any time, he received the property free of any other interests in it.
(5) Where the court has determined that the assumptions specified in subsection (4) above are to be made in any case it shall not in that case make any such assumption in relation to any particular property or expenditure if—
(a) that assumption, so far as it relates to that property or expenditure, is shown to be incorrect in the defendant’s case;
(b) that assumption, so far as it so relates, is shown to be correct in relation to an offence the defendant’s benefit from which has been the subject of a previous confiscation order; or
(c) the court is satisfied that there would (for any other reason) be a serious risk of injustice in the defendant’s case if the assumption were to be made in relation to that property or expenditure.
(6) Where the assumptions specified in subsection (4) above are made in any case, the offences from which, in accordance with those assumptions, the defendant is assumed to have benefited shall be treated as if they were comprised, for the purposes of this Act, in the conduct which is to be treated, in that case, as relevant criminal conduct in relation to the defendant.
(7) In this section “the date of conviction” means— (a) in a case not falling within paragraph (b) below, the date on
which the defendant is convicted of the offence in question, or
(b) where he is convicted of that offence and one or more other offences in the proceedings in question and those convictions are not all on the same date, the date of the latest of those convictions; and
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“the relevant period” means the period of six years ending when the proceedings in question were instituted against the defendant.
Postponed determinations 13. (1) Where a court is acting under section 11 or 12 but considers that
it requires further information before determining— (a) whether the defendant has benefited from an offence; or (b) the amount to be recovered,
it may, for the purpose of enabling that information to be obtained, postpone making the determination for such period as it may specify.
(2) More than one postponement may be made under subsection (1) in relation to the same case.
(3) Except where the court is satisfied that exceptional circumstances exist, it shall not postpone a determination for a period which, by itself or taken together with other postponements exceeds six months from the date of the conviction.
(4) Where a convicted person appeals against conviction, the court may, on that account—
(a) postpone making any of the determinations mentioned in subsection (1) for such period as it may specify; or
(b) where it has already exercised its powers of postponement under this section, extend the specified period.
(5) A postponement or extension under subsection (1) or (4) may be made—
(a) on application by the prosecutor or the defendant; or (b) by the court of its own motion.
(6) Unless the court is satisfied that there are exceptional circumstances, any postponement or extension under subsection (4) shall not exceed the period ending three months after the date on which the appeal is determined or otherwise disposed of.
(7) Where the court exercises its power under subsection (1) or (4) above, it may nevertheless proceed to sentence, or otherwise deal with, the defendant in respect of the offence or any of the offences concerned.
(8) Where the Court has sentenced the defendant under subsection (7) above during the specified period it may, after the end of that period, vary the sentence by imposing a fine or making any such order as is mentioned in section 11(3)(a) and (b) so long as it does so within twenty eight days of the end of the said period.
(9) In sentencing, or otherwise dealing with the defendant in respect of the offence, or any of the offences concerned at any time during the specified period, the court shall not—
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(a) impose any fine on him, or (b) make any such Order as is mentioned in section 11(3).
(10) In this section “the date of conviction” means— (a) the date on which the defendant was convicted of the offence
concerned; or (b) where he was convicted in the same proceedings, but on
different dates of two or more offences which may be taken together for the purpose of section 11(2), the date of the latest of those convictions.
Statements etc, relevant to making of confiscation Orders 14. (1) Where—
(a) a defendant has been convicted of an offence of a relevant description and either the prosecutor has given notice under section 11(1)(a) or the court has decided to proceed under section 11(1)(b), the prosecutor may of his own volition or at the request of the court tender to the court a statement or statements as to any matters relevant—
(i) to determining whether the defendant has benefited from the offence or from any other offence (to which this Act applies) or which is to be taken into consideration in determining his sentence; or
(ii) to an assessment of the value of the defendant’s benefit from the offence or any other offence to which this Act applies of which he is convicted or which is so taken into consideration in determining sentence; and
(b) the defendant accepts to any extent any allegation in the statement,
the Court, may for the purposes of so determining or making such an assessment, treat his acceptance as conclusive of the matter to which it relates.
(2) Where a statement is tendered in a case in which a declaration has been made for the purposes of section 12(1)(b), the statement shall also set out all such information available to the prosecutor as may be relevant for the purposes of subsection (4) and (5)(b) or (c) of that section.
(3) Where— (a) a statement is tendered by the prosecutor under this section;
and (b) the court is satisfied that a copy of that statement has been
served on the defendant,
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the court may require the defendant to indicate to what extent he accepts each allegation in the statement and, so far as he does not accept any such allegation, to indicate any matters he proposes to rely on.
(4) If the defendant fails in any respect to comply with a requirement under subsection (3) he may be treated for the purposes of this section as accepting every allegation in the prosecutor’s statement in question apart from—
(a) any allegation in respect of which he has complied with the requirement; and
(b) any allegation that he has benefited from an offence or that any property was obtained by him as a result of or in connection with the commission of an offence.
(5) Where— (a) there is tendered to the Court by the defendant a statement as
to any matters relevant to determining the amount that might be realised at the time the confiscation Order is made; and
(b) the prosecutor accepts to any extent any allegation in the statement,
the Court may, for the purposes of that determination, treat the acceptance by the prosecutor as conclusive of the matters to which it relates.
(6) If the Court is satisfied as to any matter relevant to determining the amount that might be realised at the time the confiscation Order is made (whether by an acceptance under this section or otherwise) the Court may issue a ruling as to the matters concerned and shall do so if satisfied that the amount that might be realised at the time the confiscation Order is made is less than the amount the Court assesses to be the value of the defendant’s benefit from any relevant criminal conduct.
(7) The court may at any time vary a direction given under this section.
Provision of information by defendant 15. (1) This section applies in a case where a person has been convicted
of an offence of a relevant description if— (a) the prosecutor has given a written notice to the court for the
purposes of section 11(1)(a); or (b) the court is proceeding in pursuance of section 11(1)(b) or is
considering whether so to proceed. (2) For the purpose of obtaining information to assist it in carrying
out its functions under this Act, the court may at any time Order the defendant to give it such information as may be specified in the Order.
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(3) An Order made under subsection (2) may require all, or any specified part, of the required information to be given to the court in such manner, and within such period, as may be specified in the Order.
(4) If the defendant fails, without reasonable excuse acceptable to the court, to comply with an Order made under this section, the court may draw such inference from that failure as it considers appropriate.
(5) Where the prosecutor accepts to any extent an allegation made by the defendant—
(a) in giving to the court information required by an Order made under this section; or
(b) in any other statement tendered to the court for the purposes of this Act,
the court may treat that acceptance as conclusive of the matters to which it relates.
(6) For the purposes of this section, an allegation may be accepted— (a) orally before the court; or (b) in writing in accordance with rules of court.
Review of cases where proceeds of crime not assessed 16. (1) This section applies in a case where—
(a) a person has been convicted of an offence to which this Act applies in any proceedings before a court;
(b) the prosecutor did not give written notice for the purposes of section 12(1)(a); and
(c) a determination was made for the purposes of section 11(1)(b) not to proceed under that section, or no determination was made for those purposes.
(2) If at the time a determination not to proceed under section 12 was made, evidence relevant to the determination of whether the defendant has benefited from an offence to which this Act applies was not available to the prosecutor and therefore not considered by the court, and the prosecutor believes that the consideration of such evidence would have led the court to determine that the defendant has benefited from any relevant criminal conduct, the prosecutor may apply to the court for it to consider the evidence.
(3) If, having considered the evidence, the court is satisfied that it is appropriate to do so, it shall proceed under section 11 as if it were doing so before sentencing or otherwise dealing with the defendant in respect of relevant criminal conduct, and section 13 shall apply accordingly.
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(4) In considering whether it is appropriate to proceed under section 11 in accordance with subsection (3), the court shall have regard to all the circumstances of the case.
(5) Where, having decided to proceed under section 11, the court determines that the defendant did benefit from relevant criminal conduct, and the court decides to make a confiscation Order—
(a) section 10 shall not apply for determining the amount to be recovered; and
(b) the court may make a confiscation order; and (c) the sum required to be paid by the Order shall be such
amount, (not exceeding the amount which would apply by virtue of section 10, as the court thinks fit.
(6) In considering the circumstances of the case the court shall have regard, in particular, to—
(a) any fine imposed on the defendant in respect of any relevant criminal conduct; and
(b) any Order made in connection with any offence under section 28 of the Penal Code.
(7) In making a determination under or for the purposes of this section, the court may take into account, to the extent that they represent in what respects the defendant has benefited from any relevant criminal conduct, any payments or other rewards which were not received by him until after the time when he was sentenced or otherwise dealt with in the case in question.
(8) Where an application under this section contains such a declaration as is mentioned in section 12(1)(b), that section shall apply (subject to subsection (9) below) in the case of any determination on the application as if it were a determination in a case in which the requirement of paragraphs (a) and (b) of that subsection had been satisfied.
(9) For the purposes of any determination to which section 13 applies by virtue of subsection (8) above, none of the assumptions specified in section 12(4) shall be made in relation to any property held by or transferred to the defendant after the time when he was sentenced or otherwise dealt with in the case in question.
(10) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with the date of conviction.
(11) Sections 14 and 15 shall apply where the prosecutor makes an application under this section as they apply in a case where the prosecutor has given written notice to the court for the purposes of section 11(1)(a), but as if the reference in section 14(2) to a declaration made for the purposes of section 12(1)(b) was a declaration for the purposes of subsection (8) above.
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(12) For the purposes of this section, “the date of conviction” means, (a) in a case not falling within paragraph (b), the date on which
the defendant was convicted of the offence in question; or (b) where the defendant was convicted of the offence in question
or one or more other offences in the same proceedings and those convictions were not all on the same date, the date of the latest of those convictions.
Revision of assessment of proceeds of crime 17. (1) This section applies where in any case there has been a
determination under section 11(2)(referred to in this section and section 18(5) as “the original determination”) that the defendant in that case had not benefited from any relevant criminal conduct.
(2) If the prosecutor has evidence which was not considered by the court which made the original determination, but which the prosecutor believes would have led the court, if the evidence had been considered, to determine that the defendant had benefited from relevant criminal conduct, the prosecutor may apply to the court for it to consider that evidence.
(3) If, having considered the evidence, the court is satisfied that if that evidence had been available to it, it would have determined that the defendant had benefited from relevant criminal conduct, that court—
(a) shall proceed, as if it were proceeding under section 11, to make a fresh determination of whether the defendant has benefited from any relevant criminal conduct and the amount to be recovered in accordance with section 10; and
(b) may, after making the determinations referred to in paragraph (a), make an Order, subject to subsection (4), requiring the defendant to pay the amount determined under paragraph (a).
(4) An Order made under subsection (3)(b) shall be deemed for all purposes to be a confiscation Order.
(5) In making a determination under or for the purposes of subsection (3), the court may take into account, to the extent that they represent in what respects the defendant has benefited from relevant criminal conduct, any payments or other rewards which were not received by him until after the making of the original determination.
(6) Where in a case in which section 12 does not otherwise apply, an application under this section contains such a declaration as is mentioned in section 12(1)(b), that section shall apply (subject to subsection (7) of this section) in the case of any determination on the application as if it were a determination in a case in which the requirements of paragraphs (a) and (b) of section 12 had been satisfied.
(7) For the purposes of any determination under or for the purposes of subsection 3 of this section to which section 12 applies, none of the
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assumptions set out in section 12(4) shall be made in relation to any property unless it is property held by or transferred to the defendant before the time when he was sentenced or otherwise dealt with in the case in question.
(8) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with the date of conviction.
(9) Section 13 shall apply where the court is acting under this section as it applies where the court is acting under section 11.
(10) Sections 14 and 15 shall apply where the prosecutor makes an application under this section as they apply in a case where the prosecutor has given written notice to the court for the purposes of section 11(1)(a). In this section, the term “the date of conviction” has the same meaning as in section 16(9).
Revision of assessment of amount to be recovered 18. (1) This section applies where, in the case of a person convicted of
an offence, there has been a determination under this Act (referred to in this section as “the current determination”) of any sum required to be paid in his case under any confiscation Order.
(2) Where the prosecutor is of the opinion that the value of any benefit to the defendant from any relevant criminal conduct was greater than the value at which that benefit was assessed by the court on the current determination, the prosecutor may apply to the court for the evidence on which the prosecutor has formed his opinion to be considered by the court.
(3) If, having considered the evidence, the court is satisfied that the value of the benefit from any relevant criminal conduct is greater than the value as assessed by the court (whether because its real value was higher at the time of the current determination than was thought or because the value of the benefit in question has subsequently increased), the court—
(a) shall, subject to subsection (4), make a fresh determination, as if it were proceeding under section 11, of
(i) the amount by which the defendant has benefited from such conduct; and
(ii) the amount appearing to be the amount that might be realised at the time of the fresh determination; and
(b) may, subject to subsection (5), increase, to such extent as it thinks just in all the circumstances of the case, the amount to be recovered and vary accordingly any confiscation Order earlier made.
(4) Where—
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(a) the court is under a duty to make a fresh determination for the purposes of subsection 3(a) above in any case; and
(b) that case is a case to which section 12 applies, the court shall not, in determining any amounts for those purposes make any of the assumptions set out in section 12(4) in relation to any property unless it is property held by or transferred to the defendant before the time when he was sentenced or otherwise dealt with in the case in question.
(5) The court shall not, in exercise of the power conferred by subsection (3)(b), vary any Order so as to require the payment of any sum which is more than the lesser of the two amounts determined in pursuance of paragraph (a) of that subsection.
(6) In making a determination under or for the purposes of subsection (3), the court may take into account, to the extent that they represent in what respects the defendant has benefited from any relevant criminal conduct, any payments or other rewards which were not received by him until after the making of the original determination.
(7) No application shall be entertained by a court under this section if it is made after the end of the period of six years beginning with the date of conviction.
(8) Section 13 shall apply where the court is acting under this section as it applies where the court is acting under section 11.
(9) Sections 14 and 15 shall apply where the prosecutor makes an application under this section as they apply in a case where the prosecutor has given written notice to the court for the purposes of section 11(1)(a), but as if any reference in section 14(6) to the time the confiscation order is made were a reference to the time of the determination to be made on that application.
(10) In this section, the term “the date of conviction” has the same meaning as in section 16(9).
Restraint Orders 19. (1) Subject to subsection (2) the High Court may by Order (referred
to in this Act as a “restraint Order”) prohibit any person from dealing with any realisable property, subject to such conditions and exceptions as may be specified in the Order.
(2) Without prejudice to the generality of subsection (1), a restraint Order may make such provisions as the court thinks fit for the living expenses and legal expenses of the defendant.
(3) A restraint Order may apply— (a) to all realisable property held by a specified person, whether
the property is described in the restraint Order or not; and
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(b) to realisable property held by a specified person, being property transferred to him after the making of the Order.
(4) This section shall not have effect in relation to any property for the time being subject to a charge under section 20.
(5) A restraint Order— (a) may be made only on an application by or on behalf of the
Attorney General; (b) may be made on an ex parte application to a judge in
chambers; and (c) shall provide for notice to be given to persons affected by the
Order. (6) A restraint Order—
(a) may be discharged or varied in relation to any property; and (b) shall be discharged on the conclusion of the proceedings or
application in question. (7) An application for the discharge or variation of a restraint Order
may be made by any person affected by it. (8) Where the High Court has made a restraint Order, it may at any
time appoint a receiver— (a) to take possession of any realisable property; and (b) in accordance with the court’s directions, to manage or
otherwise deal with any property in respect of which he is appointed,
subject to such exceptions and conditions as may be specified by the court; and may require any person having possession of property in respect of which a receiver is appointed under this section to give possession of it to the receiver.
(9) For the purposes of this section, dealing with property held by any person includes (without prejudice to the generality of that expression)—
(a) where a debt is owed to that person, making a payment to any person in reduction of the amount of the debt; and
(b) removing the property from Montserrat. (10) Where the High Court has made a restraint Order, a police officer
may, for the purpose of preventing any realisable property being removed from Montserrat, seize the property.
(11) Property seized under subsection (10) shall be dealt with in accordance with the court’s directions.
(12) In the case of a restraint Order made in respect of land—
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(a) the restraint Order shall inhibit for a specified period of time or until the occurrence of a specified event, or generally until further Order, the registration of any dealing with any land, lease or charge; and
(b) a copy of the restraint Order under the seal of the court, with the particulars of the land, lease or charge thereby affected shall be sent to the Registrar of Lands who shall register it in the Land Register maintained under the Registered Lands Act in respect of the land in question and no restraint Order shall bind or affect the land, lease or charge until it has been registered; and
(c) so long as the restraint Order remains registered no instrument which is inconsistent with it shall be registered.
Charging Orders 20. (1) The High Court may make a charging Order on realisable
property for securing the payment to the Crown— (a) where a confiscation Order has not been made, of an amount
equal to the value from time to time of the property charged; and
(b) in any other case, of an amount not exceeding the amount payable under the confiscation Order.
(2) A charging Order is an Order made under this section imposing on any realisable property specified in the Order a charge for securing the payment of money to the Crown, and—
(a) may be made only on an application by or on behalf of the Attorney General;
(b) may be made on an ex parte application to a judge in chambers;
(c) shall provide for notice to be given to persons affected by the Order; and
(d) may be made subject to such conditions as the court thinks fit including such conditions as it thinks fit as to the time when the charge is to become effective.
(3) Subject to subsection (5) below, a charge may be imposed by a charging Order only on—
(a) any interest in realisable property, being an interest held beneficially by the defendant or by a person to whom the defendant has directly or indirectly made a gift caught by this Act—
(i) in any asset of a kind mentioned in subsection (4); or (ii) under any trust; or
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(b) any interest in realisable property held by a person as trustee of a trust if the interest is in such an asset or is an interest under another trust and a charge may by virtue of paragraph (a) above be imposed by a charging Order on the whole beneficial interest under the first-mentioned trust.
(4) The assets referred to in subsection (3)(a)(i) are— (a) land in Montserrat, or (b) securities of any of the following kinds—
(i) any description of security issued by or on behalf of the government;
(ii) stock of any body corporate incorporated within Montserrat;
(iii) shares in any mutual fund registered under the Mutual Funds Act;
(iv) stock of any body incorporated outside Montserrat being stock registered in a register kept at any place in Montserrat.
(5) In any case where a charge is imposed by a charging Order on any interest in an asset of a kind mentioned in subsection (4)(b) above, the court may provide for the charge to extend to any interest or dividend payable in respect of the asset.
(6) The court may make an Order discharging or varying the charging Order and shall make an Order discharging the charging Order if the proceedings or application in question are concluded or the amount payment of which is secured by the charge, is paid into court whichever occurs first.
(7) In relation to a charging Order, the court— (a) may at any time make an Order discharging or varying it; and (b) shall make an Order discharging it on the occurrence of
whichever of the following first occur, that is to say— (i) the conclusion of the proceedings or application in
question; and (ii) the payment into court of the amount payment of which
is secured by the charge. (8) A charge imposed by a charging Order made in relation to any
interest in land shall be in the prescribed form and shall be registered in the encumbrances section of the relevant land register and the provisions of the Registered Land Act shall apply.
(9) Subject to any provision made under the rules of court, a charge imposed by a charging Order shall have the like effect and shall be enforceable in the same manner as an equitable charge created by the
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person holding the beneficial interest or, as the case may be, the trustees by writing under their hand.
Cases in which restraint Orders and charging Orders may be made 21. (1) The powers conferred on the High Court by sections 19(1) and
20(1) are exercisable where— (a) proceedings have been instituted against the defendant for an
offence to which this Act applies; (b) the proceedings have not been concluded; or (c) an application is made under section 16, 17 or 18 for
consideration and/or revaluation of the benefit to a defendant; and
(d) either a confiscation Order has been made or it appears to the court that there are reasonable grounds for thinking that a confiscation Order may be made in those proceedings.
(2) Those powers are also exercisable where— (a) the court is satisfied that proceedings will be instituted or an
application of a kind mentioned in subsection (1)(c) above is to be made against a person within seven days of the application for an Order under section 19(1) or 20(1); and
(b) it appears to the court that the making or variation of a confiscation Order may result from proceedings for the offence or, as the case may be, from the application.
(3) For the purposes of sections 20 and 21 at any time when those powers are exercisable before proceedings have been instituted—
(a) references in this Act to the defendant shall be construed as references to the person referred to in subsection (2)(a); and
(b) references in this Act to realisable property shall be construed as if, immediately before that time, proceedings had been instituted against the person referred to in subsection (2)(a) for an offence to which this Act applies.
(4) Where the court has made an Order under section 19(1) or 20(1) by virtue of subsection (2)—
(a) the Attorney General, shall notify the court immediately if the proceedings have not been instituted within seven days of the application for an Order under section 19(1) or 20(1); and
(b) the court shall discharge the Order if proceedings in respect of the offence are not instituted within seven days of the application for an Order under sections 19(1) or 20(1).
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Realisation of property 22. (1) Where—
(a) a confiscation Order is made in proceedings instituted for an offence to which this Act applies or an Order is made or varied on an application under section 16, 17 or 18;
(b) the proceedings in question have not, or the application in question has not been concluded; and
(c) the Order or variation is not subject to appeal, the High Court may, on an application by the prosecutor, exercise the powers conferred by subsections (2) to (6).
(2) The court may appoint a receiver in respect of realisable property.
(3) The court may empower a receiver appointed under subsection (2), under section 20 or in pursuance of a charging Order—
(a) to enforce any charge imposed under section 20 on realisable property or on interest or dividends payable in respect of such property; and
(b) in relation to any realisable property other than property for the time being subject to a charge under section 22, to take possession of the property subject to such conditions or exceptions as may be specified by the court.
(4) The court may— (a) order any person having possession of realisable property to
give possession of it to any such receiver; (b) empower any such receiver to realise any realisable property
in such manner as the court may direct; (c) order any person holding an interest in realisable property to
make such payment to the receiver in respect of any beneficial interest held by the defendant or, as the case may be, the recipient of a gift caught by this Act as the Court may direct and the Court may, on the payment being made, by Order transfer, grant or extinguish any interest in the property.
(5) Subsection (4) does not apply to property for the time being subject to a charge under section 20.
(6) The Court shall not in respect of any property exercise the powers conferred by subsections 3(a), 4(b) and (c) unless a reasonable opportunity has been given for persons holding any interest in the property to make representations to the Court.
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Application of proceeds of realisation and other sums 23. (1) Subject to subsection (2)—
(a) the proceeds of the enforcement of any charge imposed under section 20; or,
(b) the proceeds of the realisation, other than by the enforcement of a charge, of any property under section 19 or 22; or
(c) any other sums, being property held by the defendant, which are in the hands of a receiver appointed under this act or in pursuance of a charging Order shall, after such payments (if any) as the High Court may direct have been made out of those sums, be applied on the defendant’s behalf towards the satisfaction of the confiscation Order.
(2) If, after the amount payable under the confiscation Order has been fully paid, any sums remain in the hands of the receiver, the receiver shall distribute those sums among those persons who held property which has been realised under this Act, and in such proportions as the High Court may direct after giving a reasonable opportunity for such persons to make representations to the court.
(3) The receipt of any sum by the Registrar on account of an amount payable under a confiscation Order shall reduce the amount so payable, but the Court shall apply the money received for such of the purposes specified in this section and in the Order.
(4) If the money was paid into Court by a receiver appointed under this Act or in pursuance of a charging Order, the Registrar of the Court shall first pay the receiver’s remuneration and expenses.
(5) After making any payment required by subsection (4), the Registrar shall reimburse any amount paid under section 28(2).
(6) The Registrar shall finally pay any compensation directed to be paid out of any sums recovered under the confiscation Order under section 11(7).
(7) Any money remaining with the Court after all the payments required to be made under the foregoing provisions of this section shall be treated as if it were a fine imposed by the court.
(8) Where under subsection (3) a sum fails to be applied in payment both of compensation and of other outgoings—
(a) the person entitled to the compensation shall be liable to pay to the Consolidated Fund such an amount as bears to the remuneration or expenses the same proportion as the amount payable in accordance with the direction under section 11(7) bears to the total amount payable under the confiscation Order;
(b) the Registrar shall deduct from the amount failing to be applied in payment of the compensation an amount equal to
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the amount of any liability arising by virtue of paragraph (a) above;
(c) notwithstanding the deduction under paragraph (b) above, the person entitled to the compensation shall be treated as having received the whole amount which fails to be applied in payment of it; and
(d) the amount deducted shall be treated as if it were a fine imposed by the Court.
Exercise of powers by high court or receiver 24. (1) This section applies to the powers conferred on the High Court
by sections 19, 20, 22, and 25 or on a receiver appointed under this Act or in pursuance of a charging Order.
(2) Subject to the following provisions of this section, the powers shall be exercised with a view to making available for satisfying the confiscation Order or, as the case may be, any confiscation Order that may be made in the defendant’s case the value for the time being of realisable property held by any person by the realisation of such property.
(3) In the case of realisable property held by a person to whom the defendant has directly or indirectly made a gift caught by this Act, the powers shall be exercised with a view to realising no more than the value for the time being of the gift.
(4) The powers shall be exercised with a view to allowing any person other than the defendant or the recipient of any such gift to retain or recover the value of any property held by him.
(5) An Order may be made or other action taken in respect of a debt owed by the Crown.
(6) In exercising those powers, no account shall be taken of any obligations of the defendant or of the recipient of any such gift which conflict with the obligation to satisfy the confiscation Order.
Variation of confiscation Orders 25. (1) If, on an application by a receiver appointed under section 19 or
22 or in pursuance of a charging Order or by the defendant, the High Court is satisfied that the realisable property is inadequate for the payment of any amount remaining to be recovered under the Order the court shall issue a certificate to that effect, giving the reasons of the court.
(2) For the purposes of subsection (1)— (a) in the case of realisable property held by a person against
whom an absolute Order for bankruptcy has been made, the court shall take into account the extent to which any property held by him may be distributed among creditors; and
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(b) the court may disregard any inadequacy in the realisable property which appears to the court to be attributable wholly or partly to anything done by the defendant for the purpose of preserving any property held by a person to whom the defendant had directly or indirectly made a gift from any risk of realisation under this Act.
(3) Where a certificate has been issued under subsection (1) the person who applied for it may apply to the High Court for the amount to be recovered under the Order to be reduced.
(4) The High Court may, on an application under subsection (3)— (a) substitute for the amount to be recovered under the Order
such lesser amount as the court thinks just in all the circumstances of the case; and
(b) substitute for the term of imprisonment fixed under section 26 of the Penal Code in respect of the amount to be recovered under the Order a shorter term determined in accordance with that section in respect of the lesser amount.
Bankruptcy of defendant, etc. 26. (1) Where any Order for bankruptcy is made against a person who
holds realisable property— (a) any property for the time being subject to a restraint Order
made before the Order for bankruptcy; and (b) any proceeds of property realised by virtue of section 19(8)
or 22(4)(b) or (c) for the time being in the hands of a receiver appointed under section 19 or 22,
is excluded from the property for the purposes of the Bankruptcy Act. (2) Where an Order for bankruptcy is made against a person, the
powers conferred on the High Court by sections 19, 20, 22 and 23 or on a receiver by such Order appointed shall not be exercised in relation to—
(a) property for the time being of the bankrupt for the purpose of the Bankruptcy Act;
(b) property which is to be applied for the benefit of creditors of the bankrupt by virtue of a condition under the Bankruptcy Act.
(3) Subject to subsection (2) nothing in the Bankruptcy Act shall be taken as restricting, or enabling the restriction of, the exercise of those powers conferred on the High Court by sections 19, 20, 22 and 23 or on a receiver.
(4) Subsection (2) above does not affect the enforcement of a charging Order—
(a) made before the Order for bankruptcy was made; or
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(b) on property which was subject to a restraint Order when the Order for bankruptcy was made.
(5) Where, in the case of a debtor— (a) the trustee in bankruptcy constituted by Part IV of the
Bankruptcy Act has been ordered to become the receiver or manager of the property or business of the debtor; and
(b) any property of the debtor is subject to a restraint Order, the powers conferred on the Trustee by virtue of the Bankruptcy Act do not apply to property for the time being subject to the restraint Order.
(6) Where any Order for bankruptcy is made against a person who has directly or indirectly made a gift caught by this Act—
(a) no provision contained in an insolvency enactment empowering the court to make an Order in relation to transactions at an undervalue shall apply in respect of the making of the gift if—
(i) proceedings for an offence to which this Act applies have been instituted against that person and have not been concluded;
(ii) an application has been made under section 17 or 18 in respect of the defendant in any such proceedings and has not been concluded; or
(iii) property of the person to whom the gift was made is subject to a restraint Order or charging Order, and
(b) an Order made pursuant to an insolvency enactment in relation to transactions at an undervalue shall, after the conclusion of the proceedings or application, take into account any realisation under this Act of property held by the person to whom the gift was made.
Winding up of company holding realisable property 27. (1) Where realisable property is held by a company and an Order for
the winding up of the company has been made or a resolution has been passed by the company for its voluntary winding up, the functions of the liquidator (or any provisional liquidator) shall not be exercisable in relation to—
(a) property for the time being subject to a restraint Order made before the relevant time; and
(b) any proceeds of property realised by virtue of section 19(8) or 22(4)(b) or (c) for the time being in the hands of a receiver appointed under section 19 or 22.
(2) Where, in the case of a company, such an Order has been made or such a resolution has been passed, the powers conferred on the High
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Court by sections 19, 20 and 22 or on a receiver so appointed by Order shall not be exercised in relation to any realisable property held by the company in relation to which the functions of the liquidator are exercisable so as to—
(a) inhibit him from exercising those functions for the purpose of distributing any property held by the company to the company’s creditors; or
(b) prevent the payment out of any property of expenses (including the remuneration of the liquidator or any provisional liquidator) properly incurred in the winding up in respect of the property.
(3) Subsection (2) above does not affect the enforcement of a charging Order made before the relevant time or on property which was subject to a restraint Order at the relevant time.
(4) For the purposes of this section “the relevant time” means— (a) where no Order for the winding up of the company has been
made, the time of the passing of the resolution for voluntary winding up;
(b) where such an Order has been made but, before the presentation of the petition for the winding up of the company by the court, the resolution for voluntary winding up had been passed by the company, the time of the passing of the resolution; and
(c) in any other case where an Order for the winding up of the company has been made, the time of the making of the Order.
Supplementary provisions relating to receivers 28. (1) Where a receiver appointed under this Act or in pursuance of a
charging Order takes any action— (a) in relation to property which is not realisable property, being
action which he would be entitled to take if it were such property;
(b) believing, and having reasonable grounds for believing, that he is entitled to take that action in relation to that property,
he shall not be liable to any person in respect of any loss or damage resulting from his action except in so far as the loss or damage is caused by his negligence.
(2) Any amount due in respect of the remuneration and expenses of a receiver so appointed shall, if no sum is available to be supplied in payment of it under section 23(4), be paid out of the revenues of the territory or, in a case where proceedings for an offence to which this Act applies are not instituted, by the person on whose application the receiver was appointed.
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Compensation 29. (1) If proceedings are instituted against a person for an offence or
offences to which this Act applies and either— (a) the proceedings do not result in his conviction for the
offence; or (b) where he is convicted of one or more such offences—
(i) the conviction or convictions concerned are quashed, or (ii) he is pardoned by the Governor in Her Majesty’s name
and on her Majesty’s behalf in respect of the conviction, the High Court may, on an application by a person who held property which was realisable property, order compensation to be paid out of the revenues of the territory to the applicant if, having regard to all the circumstances, it considers it appropriate to make such order.
(2) The High Court shall not order compensation to be paid in any case unless the court is satisfied—
(a) that there has been some serious default on the part of a person concerned in the investigation or prosecution of the offence or offences concerned; and
(b) that the applicant has suffered substantial loss in consequence of anything done in relation to the property by or in pursuance of an Order under this Act.
(3) The Court shall not order compensation to be paid in any case where it appears to the Court that the proceedings would have been instituted or continued even if the serious default had not occurred.
(4) The amount of compensation to be paid under this section shall be such as the High Court thinks just in all the circumstances of the case.
PART IV
OFFENCES, ENFORCEMENT AND RELATED MATTERS
Code of Practice and Reporting Authority 30. (1) The Governor in Council may issue a Code of Practice for the
purpose of giving practical guidance with respect to any of the requirements of this Act.
(1A) The Code of Practice may make different provision in relation to different persons, cases or circumstances.

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(2) The Governor in Council may by Order— (a) appoint two or more persons, one of which shall be the
Commissioner of Financial Services Commission, to act as the Reporting Authority for the purposes of this Act , the Drug Trafficking Offences Act and the Criminal Justice (International Co-operation) Act;
(b) subject to subsection (3), specify the powers and duties of the Reporting Authority to ensure the proper and effective implementation of the provisions of this Act, the Drug Trafficking Offences Act and the Criminal Justice (International Co-operation) Act; and
(c) issue to the Reporting Authority such directions as he considers fit.
(3)The Reporting Authority may exercise any power assigned to it by a relevant enactment.
(4) A member of the Reporting Authority who is authorised by the Governor in Council may act on behalf of the Reporting Authority.
(5) A disclosure to the Reporting Authority permitted or required under a relevant enactment or any other enactment shall not be treated as a breach of any enactment, rule of law or agreement restricting the disclosure of information.
(6) The Reporting Authority may disclose any information disclosed to it under this Act, the Drug Trafficking Offences Act, the Criminal Justice (International Co-operation) Act, or any other enactment to any law enforcement agency in Montserrat.
(7) The Reporting Authority, having regard to the purpose for which the disclosure is to be made and the interests of third parties, may disclose to any law enforcement agency in any country or territory outside Montserrat, any information disclosed to it under this Act, the Drug Trafficking Offences Act, or any other enactment.
(8) The Reporting Authority may disclose information under subsection (7) subject to such conditions, including as to further disclosure, as it considers appropriate.
(9) Any disclosure made by the Reporting Authority under this Act shall not be treated as a breach of any enactment, rule of law or agreement restricting the disclosure of information.
(10) Any disclosure made by the Reporting Authority under any relevant Act or regulation made thereunder shall not be treated as a breach of any restriction upon the disclosure of information imposed by any enactment, rule of law or otherwise and shall not give rise to any civil proceedings against the Reporting Authority or its members. (Inserted by Act 11 of 2002)
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(11) The Confidential Information Act shall not apply to confidential information given to or received by the Reporting Authority pursuant to any relevant Act or regulations made thereunder. (Inserted by Act 11 of 2002)
(Amended by Acts 11 of 2002 and 5 of 2004)
Assisting another person to retain the benefit of criminal conduct 31. (1) Subject to subsection (3), a person commits an offence if he
enters into or is otherwise concerned in an arrangement whereby— (a) the retention or control by or on behalf of another person of
the proceeds of that other person’s criminal conduct is facilitated (whether by concealment, removal from the jurisdiction, transfer to nominees or otherwise); or
(b) the proceeds of that other person’s criminal conduct is used to secure the placement of funds at that other person’s disposal or used to acquire property by way of investment for that other persons benefit,
knowing, suspecting or having reasonable grounds to suspect that other person is or has been engaged in criminal conduct or has benefited from criminal conduct.
(2) In this section, references to any person’s proceeds of criminal conduct include property which in whole or in part directly or indirectly represented in his hands his proceeds of that criminal conduct.
(3) Where a person discloses to the Reporting Authority a suspicion or belief that any funds or investments are derived from or used in connection with criminal conduct or discloses to the Reporting Authority any matter on which such a suspicion or belief is based—
(a) the disclosure shall not be treated as a breach of any enactment, rule of law or agreement restricting the disclosure of information;
(b) if that person does an act in contravention of subsection (1) and the disclosure relates to the arrangement concerned, he does not commit an offence under this section if—
(i) the disclosure is made before he does the act concerned and the act is done with the consent of the Reporting Authority; or
(ii) the disclosure is made after he does the act, but is made on his initiative and as soon as it is reasonable for him to make it.
(4) In proceedings against a person for an offence under this section, it is a defence to prove—
(a) that he did not know or suspect that the arrangement related to any person’s proceeds of criminal conduct; or
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(b) that he did not know or suspect that by the arrangement the retention or control by or on behalf of that other person of any property was facilitated or, as the case may be, that by the arrangement any property was used as mentioned in subsection (1); or
(c) that— (i) he intended to disclose to the police such a suspicion,
belief or matter as is mentioned in subsection (3) in relation to the arrangement; but
(ii) there is reasonable excuse for his failure to make disclosure in accordance with paragraph (b) of that subsection.
(5) In the case of a person who was in employment at the relevant time, subsections (3) and (4) above shall have effect in relation to disclosures, and intended disclosures, to the appropriate person in accordance with the procedure established by his employer for the making of such disclosures as they have effect in relation to disclosures, and intended disclosures, to a police officer.
(6) A person who commits an offence under this section is liable— (a) on summary conviction, to imprisonment for a term not
exceeding two years or a fine not exceeding $25,000 or to both; or
(b) on conviction on indictment, to imprisonment for a term not exceeding fourteen years or a fine or to both.
(Amended by Act 5 of 2004)
Acquisition, possession or use of proceeds of criminal conduct 32. (1) A person commits an offence if, knowing, suspecting or having
reasonable grounds to suspect that any property is, or in whole or in part directly or indirectly represents, another person’s proceeds of criminal conduct, he acquires or uses that property or has possession of it.
(2) It is a defence to a charge under this section that the person charged acquired or used the property or had possession of it for adequate consideration.
(3) For the purposes of subsection (2) above— (a) a person acquires property for inadequate consideration if the
value of the consideration is significantly less than the value of the property; and
(b) a person uses or has possession of property for inadequate consideration if the value of the consideration is significantly less than the value of his use or possession of the property.
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(4) The provision for any person of services or goods which are of assistance to him in criminal conduct shall not be treated as consideration for the purpose of subsection (2).
(5) Where a person discloses to a police officer a suspicion or belief that any property is, or in whole or in part directly or indirectly represents, another person’s proceeds of criminal conduct or discloses to a police officer any matter on which such a suspicion or belief is based—
(a) the disclosure shall not be treated as a breach of any enactment, rule of law or agreement restricting the disclosure of information;
(b) if he does any act in relation to that property in contravention of subsection (1), he does not commit an offence under this section if—
(i) the disclosure is made before he does the act concerned and the act is done with the consent of the police officer; or
(ii) the disclosure is made after he does the act, but is made on his initiative and as soon as it is reasonable for him to make it.
(6) For the purposes of subsection (5), having possession of any property shall be taken to be doing an act in relation to it.
(7) In proceedings against a person for an offence under this section, it is a defence to prove that—
(a) he intended to disclose to the police officer such a suspicion, belief or matter as is mentioned in subsection (5); but
(b) there is reasonable excuse for his failure to make the disclosure in accordance with paragraph (b) of that subsection.
(8) In the case of a person who was in employment at the relevant time, subsections (5) and (7) shall have effect in relation to disclosures, and intended disclosures, to the appropriate person in accordance with the procedure established by his employer for the making of such disclosures as they have effect in relation to disclosures, and intended disclosures, to a police officer.
(9) A person who commits an offence under this section is liable— (a) on summary conviction, to imprisonment for a term not
exceeding two years or a fine not exceeding $25,000 or to both; or
(b) on conviction on indictment, to imprisonment for a term not exceeding fourteen years or a fine not exceeding $100,000 or to both.
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(10) No police officer, member of the Reporting Authority or other person commits an offence under this section in respect of anything done by him in the course of acting in connection with the enforcement, or intended enforcement, of any provision of this Act or of any other enactment relating to criminal conduct or the proceeds of such conduct.
(Amended by Acts 10 of 2000 and 5 of 2004)
Concealing or transferring proceeds of criminal conduct 33. (1) A person commits an offence if he—
(a) conceals or disguises any property which is, or in whole or in part directly or indirectly represents, his proceeds of criminal conduct, or
(b) converts or transfers that property or removes it from the jurisdiction,
for the purpose of avoiding prosecution for an offence to which this Act applies or of avoiding the making or enforcement of a confiscation Order.
(2) A person commits an offence if, knowing, suspecting or having reasonable grounds to suspect that any property is, or in whole or in part directly or indirectly represents, another person’s proceeds of criminal conduct, he—
(a) conceals or disguises that property; or (b) converts or transfers that property or removes it from the
jurisdiction, for the purpose of assisting any person to avoid prosecution for an offence to which this Act applies or to avoid the making or enforcement of a confiscation Order.
(3) In subsections (1) and (2) the references to concealing or disguising any property include references to concealing or disguising its nature, source, location, disposition, movement or ownership or any rights with respect to it.
(4) A person who commits an offence under this section is liable— (a) on summary conviction, to imprisonment for a term not
exceeding two years or a fine not exceeding $25,000 or to both; or
(b) on conviction on indictment, to imprisonment for a term not exceeding fourteen years or a fine of $100,000 or to both.
(Amended by Act 5 of 2004)
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Requirement to disclose knowledge or suspicion of money laundering 33A. (1) Where a person—
(a) knows, or suspects, or has reasonable grounds for suspecting, that another person is engaged in money laundering; and
(b) the information or other matter on which his knowledge or suspicion is based, or which gives reasonable grounds for such suspicion, comes to him in the course of a relevant financial business;
he shall disclose the information or other matter as soon as is practicable after it comes to him to a nominated officer or to the Reporting Authority.
(2) A disclosure under subsection (1) to the Reporting Authority shall be in the form and manner, if any, that may be prescribed in the regulations.
(3) A person who does not disclose any information or other matter as required by subsection (1) is guilty of an offence.
(4) A person does not commit an offence under subsection (3) if – (a) he has a reasonable excuse for not disclosing the information
or other matter; or (b) he is a professional legal advisor and the information or other
matter came to him in privileged circumstances. (5) Without limiting subsection (4)(a), a person has a reasonable
excuse for not disclosing information or another matter under subsection (1) if—
(a) he does not know or suspect that another person is engaged in money laundering; and
(b) he has not been provided by his employer with anti-money laundering training as required by the regulations.
(6) Subject to subsection (7), for the purposes of this section , any information or other matter comes to professional legal advisor in privileged circumstances if it is communicated or given to him—
(a) by, or by a representative of, a client of his in connection with the giving by the advisor of legal advice to the client;
(b) by, or by a representative of, a person seeking legal advice from the advisor; or
(c) by a person in connection with legal proceedings or contemplated legal proceedings.
(7) Subsection (6) does not apply to any information or other matter which is communicated or given with the intention of furthering a criminal purpose.
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(8) A person makes a disclosure to a nominated officer under subsection (1) if he makes the disclosure—
(a) to an individual nominated by his employer to receive disclosures under this section; and
(b) in the course of his employment and in accordance with the procedures established by his employer for the purpose.
(Inserted by Act 5 of 2004)
Tipping Off 34. (1) A person commits an offence if—
(a) he knows or suspects that the Reporting Authority, a police officer or other person duly authorised is acting, or is proposing to act, in connection with an investigation which is being, or is about to be, conducted into money laundering; and
(b) he discloses to any other person information or any other matter which is likely to prejudice that investigation or proposed investigation.
(2) A person commits an offence if— (a) he knows or suspects or has reasonable grounds for
suspecting that a disclosure (“the disclosure”) has been made to the Reporting Authority under section 31 or 32; and
(b) he discloses to any other person information or any other matter which is likely to prejudice any investigation which might be conducted following the disclosure.
(3) A person commits an offence if— (a) he knows or suspects or has reasonable grounds for
suspecting that a disclosure (“the disclosure”)— (i) of a kind mentioned in section 31(5) or 32(8), or (ii) to a nominated officer under section 33A(1),
has been made; and (b) he discloses to any person information or any other matter
which is likely to prejudice any investigation which might be conducted following the disclosure.
(4) Nothing in subsection (1) to (3) makes it an offence for a person to disclose any information or other matter to a professional legal adviser for the purposes of legal advice or for a professional legal adviser to disclose any information or other matter—
(a) to, or to a representative of, a client of his in connection with the giving by the legal adviser of legal advice to the client; or
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(b) to any person— (i) in contemplation of, or in connection with, legal
proceedings; and (ii) for the purpose of those proceedings.
(5) Subsection (4) does not apply in relation to any information or other matter which is disclosed with a view to furthering any criminal purpose.
(6) In proceedings against a person for an offence under subsection (1), (2) or (3), it is a defence to prove that he did not know or suspect, or have reasonable grounds for suspecting, that the disclosure was likely to be prejudicial in the way specified in the relevant paragraph.
(7) Deleted. (8) A person who commits an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding two years or a fine not exceeding $10,000 or to both; or
(b) on conviction on indictment, to imprisonment for a term not exceeding five years or a fine of $50,000 or to both.
(9) No member of the Reporting Authority, police officer or other person shall be guilty of an offence under this section in respect of reasonable measures taken by him in the course of acting in connection with the enforcement, or intended enforcement, of any provision of this Act or of any other enactment relating to an offence to which this Act applies.
(Amended by Act 5 of 2004)
Application of procedure for enforcing fines 35. (1) Where the court Orders the defendant to pay any sum under this
Act, sections 25 and 26 of the Penal Code shall apply—. (a) without the words “but shall not exceed a maximum of six
months” in section 26; and (b) without the provisos in both sections.
(2) Where— (a) the court has directed that in default of payment of an amount
Ordered to be paid under this Act in respect of an offence the defendant shall serve a term of imprisonment; and
(b) at the time the direction is made, the defendant is liable to serve a term of imprisonment in respect of the offence,
the term of imprisonment to be served in default of payment of the amount shall not begin to run until after the expiration of the term mentioned in paragraph (b).
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(3) For the purposes of subsection (2)— (a) consecutive terms of imprisonment and terms of
imprisonment which are wholly or partly concurrent shall be treated as a single term; and
(b) there shall be disregarded any sentence suspended under the Penal Code which has not taken effect at the time the defendant has defaulted.
(4) Where a defendant serves a term of imprisonment or detention in default of paying any amount due under a confiscation order, his serving that term does not prevent the confiscation order from continuing to have effect, so far as any other method of enforcement is concerned.
(5) Where, notwithstanding the imposition and completion of sentence of imprisonment in default the amount due under the confiscation order remains due and has increased by virtue of subsection 36(1), the Court may order the defendant to serve a further term of imprisonment in default which may be greater than the term already served.
Interest 36. (1) If any sum required to be paid by a person under a confiscation
order is not paid when it is required to be paid— (a) that person shall be liable to pay interest on that sum for the
period for which it remains unpaid; and (b) the amount of the interest shall, for the purposes of
enforcement, be treated as part of the amount to be recovered from him under the confiscation order.
(2) The rate of interest shall be nine per centum per annum.
Powers of arrest 37. A police officer may arrest without warrant a person who has
committed, or whom he reasonably suspects to have committed, an offence to which this Act applies.
Order to make material available 38. (1) A police officer or the Attorney General may, for the purposes of
a money laundering investigation or an investigation into whether any person has benefited from any criminal conduct or into the extent or whereabouts of the proceeds of any criminal conduct apply to the High Court for an Order under subsection (2) in relation to particular material or material of a particular description.
(2) If on such an application the Court is satisfied that the conditions in subsection (4) are fulfilled it may make an Order that the person who appears to the court to be in possession of material to which the application relates shall—
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(a) produce it to a police officer for him to take away; or (b) give a police officer access to it,
within such period as the Order may specify. (3) The period to be specified in an Order under subsection (2) shall
be seven days unless it appears to the judge that a longer or shorter period would be appropriate in the particular circumstances of the application.
(4) The conditions referred to in subsection (2) are that— (a) there are reasonable grounds for suspecting that a specified
person has carried on money laundering or has benefited from any criminal conduct;
(b) there are reasonable grounds for suspecting that the material to which the application relates—
(i) is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the application is made; and
(ii) does not consist of or include items subject to legal privilege; and
(c) there are reasonable grounds for believing that it is in the public interest, having regard to—
(i) the benefit likely to accrue to the investigation if the material is obtained; and
(ii) the circumstances under which the person in possession of the material holds it, that the material should be produced or that access to it should be given.
(5) Where the court makes an Order under subsection (2)(b) in relation to material on any premises he may, on the application of a police officer, Order any person who appears to the court to be entitled to grant entry to the premises to allow a police officer to enter the premises to obtain access to the material.
(6) An application under subsection (1) or (5) may be made ex parte to a judge in Chambers.
(7) The Chief Justice may make rules governing the procedure in relation to—
(a) applications for the discharge and variation of Orders under this section; and
(b) proceedings relating to such Orders. (8) Where the material to which an application under this section
relates consists of information contained in or accessible by means of a computer—
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(a) an Order under subsection (2)(a) shall have effect as an Order to produce the material in a form in which it can be taken away and in which it is visible and legible; and
(b) an Order under subsection 2(b) shall have effect as an Order to give access to the material in a form in which it is visible and legible.
(9) An Order under subsection (2)— (a) shall have effect notwithstanding any obligation as to secrecy
or other restriction upon the disclosure of information imposed by statute or otherwise; and
(b) may be made in relation to material in the possession of the government.
(9A) A police officer may take copies of any material which is produced, or to which access is given, in compliance with an order under this section.
(10) Where, in relation to an investigation into any criminal conduct, an Order under subsection (2) has been made or has been applied for and has not been refused or a warrant under section 39 has been issued, a person who, knowing or suspecting that the investigation is taking place, makes any disclosure which is likely to prejudice the investigation commits an offence.
(11) In proceedings against a person for an offence under this section, it is a defence to prove—
(a) that he did not know or suspect that the disclosure was likely to prejudice the investigation; or
(b) that he had lawful authority or reasonable excuse for making the disclosure.
(12) References in this section to a person benefiting from any criminal conduct, in relation to conduct which is not an offence to which this Act applies but would be such an offence if it had occurred in Montserrat shall be construed in accordance with section 10(2) and 10(3) as if it had so occurred.
(13) A person who commits an offence under subsection (10) is liable—
(a) on summary conviction to imprisonment for a term not exceeding two years or a fine not exceeding $25,000 or to both; or,
(b) on conviction on indictment to imprisonment for a term not exceeding five years or a fine of $50,000 or to both.
(Amended by Act 5 of 2004)
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Authority for search 39. (1) A police officer may, for the purposes of a money laundering
investigation or an investigation into whether any person has benefited from any criminal conduct or into the extent or whereabouts of the proceeds of any criminal conduct, apply to the High Court for a warrant under this section in relation to specified premises.
(2) On such application the Court may issue a warrant authorising a police officer to enter and search the premises if it is satisfied that—
(a) an Order made under section 38(2) in relation to material on the premises has not been complied with;
(b) the conditions in subsection (3) below are fulfilled; or (c) the conditions in subsection (4) below are fulfilled.
(3) The condition referred to in subsection (2)(b) are— (a) that there are reasonable grounds for suspecting that a
specified person has carried on money laundering or has benefited from criminal conduct;
(b) that the conditions in paragraphs (b) and (c) of section 38(4) are fulfilled in relation to any material on the premises;
(c) that it would not be appropriate to make an Order under section 38 in relation to the material because—
(i) it is not practicable to communicate with any person entitled to produce the material;
(ii) it is not practicable to communicate with any person entitled to grant access to the material or entitled to grant entry to the premises on which the material is situated; or
(iii) the investigation for the purpose of which the application is made might be seriously prejudiced unless a police officer could secure immediate access to the material.
(4) The conditions referred to in subsection (2)(c) are— (a) that there are reasonable grounds for suspecting that a
specified person has carried on money laundering or has benefited from any criminal conduct;
(b) that there are reasonable grounds for suspecting that there is on the premises material relating to the specified person or to the question whether that person has benefited from any criminal conduct or to any question as to the extent or whereabouts of the proceeds of any criminal conduct as is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purposes of which the application is made, but that the material cannot at the time of the application be particularised; and
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(c) that— (i) it is not practicable to communicate with any person
entitled to grant entry to the premises; (ii) entry to the premises will not be granted unless a warrant
is produced; or (iii) the investigation for the purpose of which the application
is made might be seriously prejudiced unless a police officer arriving at the premises could secure immediate entry to them.
(5) Where a police officer has entered premises in the execution of a warrant issued under this section, he may seize and retain any material, other than items subject to legal privilege, which is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose for which the warrant was issued.
(6) Subsection (12) of section 38 shall apply for the purposes of this section as it applies for the purposes of that section.
(7) A police officer may take copies of any material seized under this section.
(Amended by Act 5 of 2004)
Rules for establishing mens rea 40. (1) For the avoidance of doubt any benefit accruing to a body
corporate from any relevant criminal conduct engaged in or on behalf of a body corporate—
(a) by a director, servant or agent of that body corporate within the scope of his actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement whether expressed or implied, of a director, servant or agent of that body corporate where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, servant or agent,
shall be deemed to be the proceeds of criminal conduct in the hands of the body corporate.
(2) Criminal conduct engaged in on behalf of a person, other than a body corporate—
(a) by a servant or agent of that person within the scope of his actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement whether expressed or implied, of a servant or agent of the first mentioned person, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the servant or agent,
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shall be deemed, for the purposes of this Act, to have been engaged in by the first mentioned person if he was aware of the intention to engage in that conduct before it was engaged in on his behalf.
(4) A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion belief or purpose of that person and that person’s reasons for his intention, opinion, belief or purpose.
(5) For the purposes of this section “a body corporate” means a company incorporated or continued under the Companies Act and any similar body of persons incorporated under the laws of any other State and carrying business in Montserrat under the Companies Act.
Account monitoring orders 40A. (1) A police officer or the Attorney General may, for the purposes of
a money laundering investigation or an investigation into whether any person has benefited from any criminal conduct or into the extent or whereabouts of the proceeds of any criminal conduct, apply to the High Court for an account monitoring order under subsection (2).
(2) If on an application under subsection (1), the Court is satisfied that the conditions specified in subsection (5) are fulfilled, it may make an order that the financial institution specified in the application must, for the period stated in the order, which shall not exceed 90 days, provide account information of the description specified in the order to a police officer in the manner, and at or by the time or times, stated in the order.
(3) For the purposes of subsection (2), “account information” is information relating to an account or accounts held at the financial institution specified in the order by the person specified in the order, whether solely or jointly with one or more other persons.
(4) An order under subsection (2) may specify account information relating to—
(a) all accounts held by the person and at the financial institution specified in the order;
(b) a particular description, or particular descriptions, of accounts so held; or
(c) a particular account, or particular accounts, so held. (5) The conditions referred to in subsection (2) are—
(a) that there are reasonable grounds for suspecting that a specified person has carried on money laundering or has benefited from any criminal conduct;
(b) that there are reasonable grounds for believing that account information which may be provided in compliance with the order is likely to be of substantial value, whether by itself or
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with other information or material, to the investigation for the purpose of which the application is made; and
(c) that there are reasonable grounds for believing that it is in the public interest for the account information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained.
(6) Provision may be made by Court Rules or, rules of court as to— (a) the discharge and variation of orders under this section; and (b) proceedings relating to such orders.
(7) An application under subsection (1) may be made ex parte to the judge in Chambers.
(Inserted by Act 5 of 2004)
PART V
MISCELLANEOUS
Enforcement of external confiscation Orders and proceedings 41. (1) The Governor in Council may by Order—
(a) designate countries and territories outside Montserrat to whose external confiscation Orders and proceedings this Act shall, subject to subsection (2), apply; and
(b) specify appropriate authorities within designated countries that are to give effect to the provisions of this Act in relation to external confiscation Orders and to related proceedings; and
(c) specify in respect of designated countries the steps (apart from an application to a court for an external confiscation Order) that need to be taken there to amount to an institution of proceedings.
(2) The provisions contained in the Schedule shall apply to external confiscation Orders and to any proceedings which have been, or are to be, instituted and which may result in external confiscation Orders being made in designated countries.
Registration of external confiscation Order 42. (1) On an application made by or on behalf of the government of a
designated country, the High Court may register an external confiscation Order made there if—
(a) it is satisfied that at the time of registration the Order is in force and not subject to appeal;
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(b) it is satisfied, where the person against whom the Order is made did not appear in the proceedings, that he received notice of the proceedings in sufficient time to enable him to defend them; and
(c) it is of the opinion that enforcing the Order in Montserrat would not be contrary to the interests of justice.
(2) In subsection (1) above “appeal” includes— (a) any proceedings by way of discharging or setting aside a
judgment; and (b) an application for a new trial or a stay of execution.
(3) The High Court shall cancel the registration of an external confiscation Order if it appears to the Court that the Order has been satisfied by payment of the amount due under it or by the person against whom it was made serving imprisonment in default of payment or by any other means.
Proof of Orders and judgment of courts of a designated country 43. (1) For the purposes of sections 40 and 41 and of the other
provisions of this Act as applied by an Order made under section 41— (a) any Order made or judgment given by a court of a designated
country purporting to bear the seal of that court or to be signed by any person in his capacity as a judge, magistrate or officer of the court, shall be deemed without further proof to have been duly sealed or, as the case may be, to have been signed by that person; and
(b) a document, duly authenticated, which purports to be a copy of any Order made or judgment given by a court of a designated country shall be deemed without further proof to be a true copy.
(2) A document purporting to be a copy of any Order made or judgement given by a court of a designated country is duly authenticated for the purposes of paragraph (1)(b) if it purports to be certified by any person in his capacity as a judge, magistrate or officer of the court in question or by or on behalf of the appropriate authority of the designated country.
Evidence in relation to proceedings and Orders in a designated country 44. (1) For the purposes of section 42, and of the other provisions of this
Act as applied by section 41(2), a certificate purporting to be issued by or on behalf of the appropriate authority of a designated country stating—
(a) that proceedings have been instituted and have not been concluded, or that proceedings are to be instituted, in that designated country;
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(b) that an external confiscation Order is in force and is not subject to appeal;
(c) that all or a certain amount payable under an external confiscation Order remains unpaid in the designated country, or that other property recoverable under an external confiscation Order remains unrecovered there;
(d) that any person has been notified of any proceedings in accordance with the law of the designated country; or
(e) that an Order (however described) made or to be made by a court of the designated country has or, as the case may be, will have the purpose—
(i) of recovering property obtained as a result of or in connection with conduct to which this Act applies or the value of property so obtained; or
(ii) of depriving a person of a pecuniary advantage so obtained,
shall, in any proceedings in the High Court, be admissible as evidence of the facts so stated.
(2) In any such proceedings a statement contained in a document, duly authenticated, which purports to have been received in evidence or to be a copy of a document so received, or to set out or summarise evidence given in proceedings in a court of a designated country, shall be admissible as evidence of any fact stated therein.
(3) A document is duly authenticated for the purposes of subsection (2) if it purports to be certified by any person in his capacity as a judge, magistrate or officer of the court of the designated country, or by or on behalf of the appropriate authority of the designated country, to have been received in evidence or to be a copy of a document so received, or, as the case may be, to be the original document containing or summarising the evidence or a true copy of that document.
(4) Nothing in this section shall prejudice the admission of any evidence, whether contained in any document or otherwise, which is admissible apart from this section.
Representation of government of a designated country 45. A request for assistance sent to the Attorney General by the
appropriate authority of a designated country shall, unless the contrary is shown, be deemed to constitute the authority of the government of that country for the Attorney General to act on its behalf in any proceedings in the High Court under section 42 or any other provision of this Act as applied by an Order made under section 41(2).
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Satisfaction of confiscation Order in a designated country 46. (1) Where—
(a) a confiscation Order has been made under section 11; and (b) a request has been sent by the Attorney General to the
appropriate authority of a designated country for assistance in enforcing that Order; and
(c) in execution of that request property is recovered in that country,
the amount payable under the confiscation Order shall be treated as reduced by the value of the property so recovered.
(2) For the purposes of this section, and without prejudice to the admissibility of any evidence which may be admissible apart from this subsection, a certificate purporting to be issued by or on behalf of the appropriate authority of a designated country stating that property has been recovered there in execution of a request by the Attorney General, stating the value of the property so recovered and the date on which it was recovered shall, in any proceedings in a court in Montserrat, be admissible as evidence of the facts so stated.
Currency conversion 47. (1) Where the value of property recovered as described in section
46(1) is expressed in a currency other than that of Montserrat, the extent to which the amount payable under the confiscation Order is to be reduced under that paragraph shall be calculated on the basis of the exchange rate prevailing on the date on which the property was recovered in the designated country concerned.
(2) Where an amount of money payable or remaining to be paid under an external confiscation Order registered in the High Court under section 42 is expressed in a currency other than that of Montserrat, for the purpose of any action taken in relation to that Order under this Act as applied by section 41(2) the amount shall be converted into the currency of Montserrat on the basis of the exchange rate prevailing on the date of the registration of the Order.
(3) For the purposes of this section a written certificate purporting to be signed by the Financial Secretary and stating the exchange rate prevailing on a specified date shall be admissible as evidence of the facts so stated.
Rules of court 48. The Chief Justice shall make rules of court for the purposes of this
Act.
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Regulations 49. (1) The Governor in Council may make regulations for preventing
the use of the financial system for the purposes of money laundering and drug money laundering including requiring the making of reports to the Reporting Authority and the effect of compliance with the Code of Practice issued under section 30(1).
(2) Any person who contravenes a provision of the regulations that is specified to be an offence is liable —
(a) on conviction on indictment, to imprisonment not exceeding a term of five years or a fine or both;
(b) on summary conviction, to a fine not exceeding the statutory maximum.
(3) The regulations may make different provision in relation to different persons, cases or circumstances.
(Amended by Act 5 of 2004)
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SCHEDULE
MODIFICATIONS OF THE LAW WHEN APPLIED TO EXTERNAL CONFISCATION ORDERS AND RELATED PROCEEDINGS
Introductory
1. This Schedule shall apply to external confiscation Orders registered under section 41 and to any proceedings which have been or are to be instituted and which may result in such external confiscation Orders being made in designated countries, and to the extent that it is at variance with the preceding sections of this Act in relation to the administration and enforcement of external confiscation Orders and proceedings which may result in external confiscation Orders the terms of this Schedule shall prevail.
General interpretation
2. In this Schedule—
(1) The expressions listed in the left-hand column below are respectively defined or (as the case may be) fall to be construed in accordance with the provisions of this Schedule listed in the right-hand column in relation to those expressions.
Expression Relevant Expressions
Charging Order ................................................ Paragraph 7(2) Dealing with property ...................................... Paragraph 6(9) Defendant ......................................................... Paragraph 3(1)(c) Gift caught by this Schedule ............................ Paragraph 3(4) Conduct to which this Schedule applies .......... Paragraph 3(1)(b) Realisable property .......................................... Paragraph 3(2) Restraint Order ................................................. Paragraph 6(1)
(2) Proceedings are instituted in a designated country—
(a) when under the law of the designated country concerned one of the steps specified in relation to that country in an Order made under section 41 has been taken there in respect of alleged conduct by the defendant to which this Schedule applies; or
(b) when an application has been made to a court in a designated country for an external confiscation Order, or
(c) where no steps have been specified in relation thereto as mentioned in paragraph (a), when the defendant has been notified in writing in accordance with the laws of the designated country that the competent authorities of that country have begun proceedings against him in respect of an offence.
and where the application of this paragraph would result in there being more than one time for the institution of proceedings, they shall be taken to have been instituted at the earliest of those times.
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(3) Proceedings are concluded—
(a) when (disregarding any power of a court to grant leave to appeal out of time) there is no further possibility of an external confiscation Order being made in the proceedings; or
(b) on the satisfaction of an external confiscation Order made in the proceedings (whether by the recovery of all property liable to be recovered, or the payment of any amount due, or otherwise).
Definition of principal terms used
3. (1) In this Schedule—
(a) “drug trafficking offence” has the same meaning as in the Drug Trafficking Offences Act.
(b) references to conduct to which this Schedule applies are references to conduct which constitutes an offence to which this Act applies or would constitute such an offence if it had occurred in Montserrat.
(c) a person against whom an external confiscation Order has been made, or a person against whom proceedings which may result in an external confiscation Order being made have been, or are to be, instituted in a court of a designated country, is referred to as “the defendant”.
(2) In this Schedule, “realisable property” means, subject to subparagraph (3)—
(a) in relation to an external confiscation Order in respect of specified property, the property which is specified in the Order; and
(b) in any other case—
(i) any property held by the defendant; and
(ii) any property held by a person to whom the defendant has directly or indirectly made a gift caught by this Act.
(3) Property is not realisable property if an Order under section 28 of the Drug (Prevention of Misuse) Act is in force in respect of the property.
(4) A gift (including a gift made before the commencement of this Act) is caught by this Act if—
(a) it was made by the defendant at any time after the conduct to which the external confiscation Order relates; and
(b) the court considers it appropriate in all the circumstances to take the gift into account.
Pecuniary Advantage—Equivalence
4. Where a person derives a pecuniary advantage as a result of or in connection with conduct to which this Schedule applies, he is to be treated for the purposes of this
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Schedule as if he had obtained as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage.
Cases in which restraint Orders and charging Orders may be made
5. (1) The powers conferred on the High Court by paragraphs 6(1) and 7(1) are exercisable where—
(a) proceedings have been instituted against the defendant in a designated country; and
(b) the proceedings have not, been concluded; and
(c) either a confiscation Order has been made in the proceedings or it appears to the High Court that there are reasonable grounds for thinking that such an Order may be made in them of at least the minimum amount.
(2) Those powers are also exercisable where the High Court is satisfied that proceedings will be instituted against the defendant in a designated country within seven days of the application for an Order under paragraph 6(1) or 7(1).
(3) Where the court has made an Order under paragraph 6(1) or 7(1) by virtue of subparagraph (2)—
(a) the Attorney General shall notify the court immediately if the proceedings have not been instituted within seven days of the application for the Order; and
(b) the court shall discharge the Order if the proposed proceedings are not instituted within seven days of the application for the Order.
Restraint Orders
6. (1) The High Court may by Order (referred to in this Schedule as a “restraint Order”) prohibit any person from dealing with any realisable property, subject to such conditions and exceptions as may be specified in the Order.
(2) Without prejudice to the generality of subparagraph (1), a restraint Order may make such provisions as the court thinks fit for the living expenses and legal expenses of the defendant.
(3) A restraint Order may apply—
(a) where an application under subparagraph (5) below relates to an external confiscation Order made in respect of specified property, to property which is specified in that Order; and
(b) in any other case—
(i) to all realisable property held by a specified person, whether the property is described in the restraint Order or not; and
(ii) to realisable property held by a specified person, being property transferred to him after the making of the restraint Order.
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(4) This paragraph shall not have effect in relation to any property for the time being subject to a charge under paragraph 7.
(5) A restraint Order—
(a) may be made only on an application by the Attorney General on behalf of the government of a designated country or, in a case where an external confiscation Order has been registered under section 41, by a receiver appointed under paragraph 9;
(b) may be made on an ex parte application to a judge in chambers; and
(c) notwithstanding anything in the Rules of the High Court, may provide for service on, or the provision of notice to, persons affected by the Order in such manner as the High Court may direct.
(6) A restraint Order—
(a) may be discharged or varied in relation to any property; and
(b) shall be discharged when the proceedings in relation to which the Order was made are concluded.
(7) An application for the discharge or variation of a restraint Order may be made by any person affected by it.
(8) Where the High Court has made a restraint Order, it may at any time appoint a receiver—
(a) to take possession of any realisable property; and
(b) in accordance with the court’s directions, to manage or otherwise deal with any property in respect of which he is appointed,
subject to such exceptions and conditions as may be specified by the court; and may require any person having possession of property in respect of which a receiver is appointed under this section to give possession of it to the receiver.
(9) For the purposes of this paragraph, dealing with any property held by any person includes (without prejudice to the generality of the expression)—
(a) where a debt is owed to that person, making a payment to any person in reduction of the amount of the debt; and
(b) removing the property from Montserrat.
(10) Where the High Court has made a restraint Order, a police officer may, for the purpose of preventing any realisable property being removed from Montserrat, seize the property.
(11) Property seized under subparagraph (10) shall be dealt with in accordance with the court’s directions.
(12) In the case of a restraint Order made in respect of land—
(a) the restraint Order shall inhibit for a specified period of time or until the occurrence of a specified event, or generally until further Order, the registration of any dealing with any land, lease or charge; and
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(b) a copy of the restraint Order under the seal of the court, with the particulars of the land, lease or charge thereby affected shall be sent to the Registrar of Lands who shall register it in the Land Register maintained under the Registered Lands Act in respect of the land in question and no restraint Order shall bind or affect the land, lease or charge until it has been registered; and
(c) so long as the restraint Order remains registered no instrument which is inconsistent with it shall be registered.
Charging Orders
7. (1) The High Court may make a charging Order on realisable property for securing payment to the Crown—
(a) where a fixed amount is payable under an external confiscation Order, of an amount not exceeding the amount so payable; and
(b) in any other case, of an amount equal to the value from time to time of the property charged.
(2) For the purposes of this Schedule, a charging Order is an Order made under this paragraph imposing on any such realisable property as may be specified in the Order a charge for securing the payment of money to the Crown.
(3) A charging Order—
(a) may be made only on an application by the Attorney General on behalf of the government of a designated country or, in a case where an external confiscation Order has been registered under section 41, by a receiver appointed under paragraph 9;
(b) may be made on an ex parte application to a judge in chambers;
(c) notwithstanding anything in the Rules of the High Court, may provide for service on, or the provision of notice to, persons affected by the Order in such manner as the High Court may direct.
(4) Subject to subparagraph (6), a charge may be imposed by a charging Order only on—
(a) any interest in realisable property, being an interest held beneficially by the defendant or by a person to whom the defendant has directly or indirectly made a gift caught by this Act—
(i) in any asset of a kind mentioned in subparagraph (5); or
(ii) under any trust; or
(b) any interest in realisable property held by a person as trustee of a trust if the interest is in such an asset or is an interest under another trust, and a charge may by virtue of paragraph (a) be imposed by a charging Order on the whole beneficial interest under the first-mentioned trust.
(5) The assets referred to in subparagraph (4) above are—
(a) land in Montserrat; or
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(b) securities of any of the following kinds—
(i) any description of security issued by or on behalf of the Government of Montserrat; or
(ii) stock of any body incorporated within Montserrat; or
(iii) funds in court.
(6) In any case where a charge is imposed by a charging Order on any interest in an asset of a kind mentioned in subparagraph (5)(b), the court may provide for the charge to extend to any interest or dividend payable in respect of the asset.
(7) The court may make an Order discharging or varying the charging Order if the proceedings against the defendant in the designated country are concluded or the amount, payment of which is secured by the charge, is paid into court.
(8) An application for the discharge or variation of a charging Order may be made by any person affected by it.
(9) A charge imposed by a charging Order made in relation to any interest in land shall be in the prescribed form and shall be registered in the encumbrances section of the relevant land register.
(10) Subject to any provision made under paragraph 9 or by rules of court, a charge imposed by a charging Order shall have the like effect and shall be enforceable in the same manner as an equitable charge created by the person holding the beneficial interest or, as the case may be, the trustees by writing under their hand.
(11) In this paragraph “dividend” and “stock” have the same meaning as in the Companies Act.
Application for restraint and charging Orders
8. An application under paragraph 6(5) or 7(3) shall be accompanied by an affidavit by the appropriate authority of the designated country deposing to—
(a) where proceedings have been instituted, the conduct in which the defendant is alleged to have engaged (exhibiting a copy of the indictment, information or charge), and the grounds for believing that the defendant engaged in that conduct;
(b) where proceedings will be instituted within seven days of the application, the conduct in which the defendant will be alleged to have engaged, and the grounds for believing that the defendant engaged in that conduct;
(c) where an external confiscation Order has been made, the amount payable under the confiscation Order;
(d) where an external confiscation Order has not been made—
(i) the grounds for the belief that the defendant derived a benefit of a stated amount as a result of the conduct;
(ii) the grounds for the belief that the amount that might be realised is at least the stated amount;
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(iii) where the proceedings against a defendant have been instituted, the grounds for believing that an external confiscation Order may be made and the amount likely to be payable under such a confiscation Order; or
(iv) where proceedings are to be instituted within seven days of the application, the grounds for believing that an external confiscation Order is likely to be made and the amount likely to be payable under such a confiscation Order;
(e) a description of the property in respect of which the Order is sought;
(f) the grounds for the belief that the property is realisable property;
(g) the name and address of the person who is believed to be in the possession of the property; and
(h) the names and addresses of any parties who may have an interest in that property, and the nature of their interest.
Realisation of property
9. (1) Where an external confiscation Order has been registered in the High Court under section 42 the High Court may, on an application of the Attorney General, exercise the following powers—
(a) in respect of any sum of money payable under the external confiscation Order the court may make a garnishee Order as if the sum were due to the Crown in pursuance of a judgment or Order of the High Court, but any such Order shall direct that the sum payable be paid to the High Court;
(b) the court may appoint a receiver in respect of realisable property;
(c) the court may empower a receiver appointed under subparagraph (b) under paragraph (6), or in pursuance of a charging Order—
(i) to enforce any charge imposed under paragraph 7 on realisable property or on interest or dividends payable in respect of such property; and
(ii) in relation to any realisable property other than property for the time being subject to a charge under paragraph 7, to take possession of the property subject to such conditions or exceptions as may be specified by the court;
(d) the court may Order any person having possession of the property to give possession of it to any such receiver;
(e) the court may empower any such receiver to realise any realisable property in such manner as the court may direct;
(f) the court may Order any person holding an interest in realisable property to make such payment to the receiver in respect of any beneficial interest held by the defendant or, as the case may be, the recipient of a gift caught by the Schedule as the court may direct and
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the court may, on the payment being made, by Order transfer, grant or extinguish any interest in the property; and
(g) subparagraphs (d), (e) and (f) do not apply to property for the time being subject to a charge under paragraph 7.
Application of proceeds of realisation and other sums
10. (1) Subject to subparagraph (2), such of—
(a) the proceeds of the enforcement of any charge imposed under paragraph 7; or,
(b) the proceeds of the realisation, other than by the enforcement of a charge, of any property under paragraph 6 or 9; or
(c) any other sums, being property held by the defendant,
as may be in the hands of a receiver appointed under this Act or in pursuance of a charging Order shall, after such payments (if any) as the High Court may direct have been made out of those sums, be paid to the High Court and applied for the purposes specified in subparagraphs (3) and (4) and in the Order so specified.
(2) Where a fixed amount is payable under the external confiscation Order and, after the amount has been fully paid, any sums remain in the hands of the receiver, the receiver shall distribute them—
(a) among such of those persons who held property which has been realised under this Schedule; and
(b) in such proportions;
as the High Court may direct after giving a reasonable opportunity for such persons to make representations to the court.
(3) If the money was paid into the High Court by a receiver appointed under paragraphs 6 or 9, or in pursuance of a charging Order, the receiver’s remuneration and expenses shall next be paid.
(4) After there has been made any payment required by subparagraph (3), any amount paid under subparagraph 14(2) shall be reimbursed.
(5) Any sums remaining after all the payments required to be made under the foregoing provisions of this section have been made shall be paid into the Consolidated Fund.
Exercise of powers of High Court or receiver
11. (1) This paragraph applies to the powers conferred on the High Court by paragraphs 6, 7, 9 and 10, or on a receiver being appointed under this Schedule or in pursuance of a charging Order.
(2) Subject to the following provisions of this section, the powers shall be exercised with a view to recovering property which is liable to be recovered under an external confiscation Order registered in the High Court under section 42 or, as the case may be, with a view to making available for recovery property which may
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become liable to be recovered under any external confiscation Order which may be made in the defendant’s case.
(3) In the case of realisable property held by a person to whom the defendant has directly or indirectly made a gift caught by this Schedule the powers shall be exercised with a view to realising no more than the value for the time being of the gift.
(4) The powers shall be exercised with a view to allowing any person other than the defendant or the recipient of any such gift to retain or recover the value of any property held by him.
(5) An Order may be made or other action taken in respect of a debt held by the Crown.
(6) Subject to paragraph 3(2), in exercising those powers, no account shall be taken of any obligations of the defendant or of the recipient of any such gift which conflict with the obligation to satisfy the confiscation Order.
Bankruptcy of defendant, etc.
12. (1) Where any Order for bankruptcy is made against a person who holds realisable property—
(a) any property subject for the time being to a restraint Order made before the Order for bankruptcy; and
(b) any proceeds of property realised by virtue of paragraph 6(8) or 9(1)(e) or (f) for the time being in the hands of a receiver appointed under paragraph 6 or 9,
is excluded from the property of the bankrupt for the purposes of the Bankruptcy Act (Chapter 9).
(2) Where an Order for bankruptcy is made against a person, the powers conferred on the High Court by paragraphs 6, 7, 9 and 10 or on a receiver appointed by such Order shall not be exercised in relation to—
(a) property for the time being comprised in the property of the bankrupt for the purpose of the Bankruptcy Act;
(b) property which is to be applied for the benefit of creditors of the bankrupt by virtue of a condition under the Bankruptcy Act.
(3) Nothing in the Bankruptcy Act shall be taken as restricting, or enabling the restriction of, the exercise of the enabling powers conferred on the High Court by paragraphs 6, 7, 9 and 10 or on a receiver.
(4) Subparagraph (2) above does not affect the enforcement of a charging Order—
(a) made before the Order for bankruptcy was made; or
(b) on property which was subject to a restraint Order when the Order for bankruptcy was made.
(5) Where in the case of a debtor—
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(a) the trustee in Bankruptcy constituted by Part IV of the Bankruptcy Act has been Ordered to become the receiver or manager of the property or business of the debtor; and
(b) any property of the debtor is subject to a restraint Order,
the powers conferred on the Trustee by virtue of the Bankruptcy Act do not apply to property for the time being subject to the restraint Order.
(6) Where any Order for bankruptcy is made against a person who has directly or indirectly made a gift caught by this Schedule sections 107 to 112 of the Bankruptcy Act shall not apply when property of the person to whom the gift was made is subject to a restraint Order or charging Order.
Winding up of company holding realisable property
13. (1) Where realisable property is held by a company and an Order for the winding up of the company has been made or a resolution has been passed by the company for its voluntary winding up, the functions of the liquidator (or any provisional liquidator) shall not be exercisable in relation to—
(a) property for the time being subject to a restraint Order made before the relevant time; and
(b) any proceeds of property realised by virtue of paragraph 6(8) or 9(1)(e) or (f) for the time being in the hands of a receiver appointed under paragraph 6 or 9.
(2) Where, in the case of a company, such an Order has been made or such a resolution has been passed, the powers conferred on the High Court by paragraphs 6, 7 and 9 or on a receiver appointed by the Order shall not be exercised in relation to any realisable property held by the company in relation to which the functions of the liquidator are exercisable so as to—
(a) inhibit him from exercising those functions for the purpose of distributing any property held by the company to the company’s creditors; or
(b) prevent the payment out of any property of any expenses (including the remuneration of the liquidator or any provisional liquidator) properly incurred in the winding up in respect of the property.
(3) Subparagraph (2) above does not affect the enforcement of a charging Order made before the relevant time or on property which was subject to a restraint Order at the relevant time.
(4) For the purposes of this section “the relevant time” means—
(a) where no Order for the winding up of the company has been made, the time of the passing of the resolution for voluntary winding up;
(b) where such an Order has been made but, before the presentation of the petition for the winding up of the company by the court, such a resolution had been passed by the company, the time of the passing of the resolution; and
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(c) in any other case where such an Order has been made, the time of the making of the Order.
Receivers: supplementary provisions
14. (1) Where a receiver appointed under this Schedule or in pursuance of a charging Order takes any action—
(a) in relation to property which is not realisable property, being action which he would be entitled to take if it were such property;
(b) believing, and having reasonable grounds for believing, that he is entitled to take that action in relation to that property,
he shall not be liable to any person in respect of any loss or damage resulting from his action except in so far as the loss or damage is caused by his negligence.
(2) Any amount due in respect of the remuneration and expenses of a receiver so appointed shall, if no sum is available to be supplied in payment of it under paragraph 10(3), be paid by the person on whose application the receiver was appointed.
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REPORTING AUTHORITY (CONSTITUTION AND PROCEDURE) ORDER – SECTION 30
(S.R.O. 53/2002)
Commencement
[15 October 2002]
Citation
1. This Order may be cited as the Reporting Authority (Constitution and Procedure) Order.
Establishing and constitution of Reporting Authority
2. (1) There is established a Reporting Authority which shall comprise—
(a) the Attorney General or the person from time to time designated by the Attorney General as his representative drawn from the Attorney General’s Chambers;
(b) the Commissioner of Financial Services Commission as Chairman;
(c) the Commissioner of Police or the person from time to time designated by the Commissioner as his representative provided that the person so designated should hold a rank no lower than that of Inspector.
(2) The Reporting Authority may appoint any person it considers suitable to act as Secretary to the Authority.
(3) The Secretary shall perform such duties as the Reporting Authority may determine.
Powers of the Reporting Authority
3. (1) The Reporting Authority may disclose any information disclosed to it under any relevant Act or regulations made thereunder to any law enforcement agency in Montserrat.
(2) The Reporting Authority having regard to the purpose for which the disclosure is to be made and the interests of third parties may, subject to such conditions as it may impose on further disclosure, disclose to any law enforcement agency in any other country or territory information disclosed to it under any relevant Act or the regulations made thereunder.
Meetings of the Reporting Authority
4. (1) The Reporting Authority shall meet at such time and place as the Chairman may determine.
(2) At every meeting of the Reporting Authority the Chairman and any one member of the Authority shall constitute the quorum.
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(3) The Reporting Authority shall take its decisions by a majority vote of the members present and where there is an equality of votes the Chairman shall have a casting vote.
(4) In the conduct of its meetings, the Reporting Authority shall adopt such rules of procedure as it considers necessary.
Assistance of third parties to facilitate meeting
5. Where the Reporting Authority meets to discuss any matter in relation to the provisions of any Act or any regulations made thereunder, it may seek the view and assistance of such persons as it considers necessary to facilitate its meetings.
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PROCEEDS OF CRIME (DESIGNATED COUNTRIES AND TERRITORIES) ORDER – SECTION 41
(S.R.O. 59/2000)
Commencement
[15 June 2000]
Short title
1. This Order may be cited as the Proceeds of Crime (Designated Countries and Territories) Order.
Interpretation
2. In this Order—
“Act” means the Proceeds of Crime Act;
“a court of a designated country” includes a court of any state or territory of a designated country;
“appropriate authority of a designated country” means—
(a) the authority specified opposite that country in the Schedule of this Order; or
(b) where no authority is so specified, the authority appearing to the court to be the appropriate authority of that country for the purposes of sections 41 to 46 of the Act and of the other provisions of the Act as applied under paragraph 3(2) of this Order;
“designated country” means a country or territory designated under paragraph 3(1) of this Order;
“Governor” means the person for the time being holding the office of Governor and includes a person acting in the office of Governor.
Designation of and Application of the Act to Countries and Territories
3. (1) Each of the countries and territories specified in the Schedule to this Order is hereby designated for the purpose of sections 41 to 46 of the Act.
(2) In relation to a designated country, the Act shall apply as specified in the Schedule to the Act to external confiscation orders and to proceedings which have been or are to be instituted in the designated country and may result in an external confiscation order being made there and accordingly in relation to such orders and such proceedings, the Act shall have effect as set out in the Schedule to the Act.
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Certificate as to Appropriate Authority of a Designated Country
4. Where in relation to any designated country no authority is specified in the Schedule to this Order, a certificate made by the Governor to the effect that the authority specified therein is the appropriate authority for the purposes of sections 41 to 46 and of the other provisions of the Act as applied by paragraph 2 of this Order shall be sufficient evidence of that fact.
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SCHEDULE Designated Country Appropriate Authority Point at which proceedings are
instituted
Afghanistan Algeria Anguilla the Attorney General of
Anguilla (a) when a summons or
warrant is issued in respect of an offence;
(b) when a person is charged with an offence after being taken into custody without a warrant;
(c) when a bill of indictment is preferred.
Antigua and Barbuda

Argentina Ministry of Foreign Affairs when a judge has ordered that a person be detained for the purpose of testifying in connection with the commission of an offence.
Armenia Australia the Attorney General’s
Department (a) when any information has
been laid before a justice of the peace;
(b) when a person is charged with an offence after having been taken into custody without a warrant
(c) when a bill of indictment is preferred.
Azerbaijan the Bahamas (a) when an information has
been laid before a justice of the peace;
(b) when a person is charged with an offence after having been taking into
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custody without a warrant; (c) when a bill of indictment is
preferred.
Bahrain the Ministry of Interior when a bill of indictment is lodged in court against any person for an offence.
Bangladesh Barbados the Attorney General (a) when any information has
been laid before a Magistrate;
(b) when a person is charged with an offence;
(c) when a bill of indictment is preferred.
Belarus Bermuda the Attorney General of
Bermuda when an information is laid charging a person with an offence.
Bhutan Bolivia Bosnia Herzegovina Brazil British Virgin Islands
the Attorney General of the British Virgin Island
(a) when an summons or warrant is issued in respect of an offence;
(b) when a person is charged with an offence after being taken into custody without a warrant;
(c) when a bill of indictment is preferred.
Brunei Darussalam Bulgaria Burkina Faso Burundi Cameroon Canada the Minister of Justice or
officials designated by that Minister

Cape Verde Cayman Islands the Attorney General of the
Cayman Islands (a) when a charge has been
signed under subsection (3) or (4) of section 13 of the Criminal Procedure Code in respect of the offence; or
(b) when a person is charged with the offence after being arrested without warrant under subsection (5) of that
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section.
Chad Chile China Colombia the Fiscalia General de la
Nacion
Costa Rica Cote d’Ivoire Croatia Cyprus the Czech Republic Denmark Dominica Dominica Republic Ecuador when a writ is issued by a judge
initiating criminal proceedings. Egypt El Salvador Ethiopia
(a) when a justice of peace issues a summons or warrant under section 1 of the Magistrate’s Court Act 1980 in respect of the offence;
England, Wales, The United Kingdom Central Authority (for Mutual Legal Assistance in Criminal Matters) C7 Division, Home Office, 50 Queen Anne’s Gate, London, SW1H 9A1 (b) when a person is charged
with the offence after being taken into custody without a warrant;
(c) when a bill of indictment is preferred under section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 in a case falling within paragraph (b) of subsection (2) of that section.
Fiji Finland France Germany when a person is notified that he
is accused of an offence and will be brought before a court.
Ghana Gibraltar the Attorney General of
Gibraltar when a person is charged with an offence, whether by the laying of an information or otherwise.
Greece Grenada Guatemala
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Guernsey Her Majesty’s Attorney
General for the Bailiwick of Guernsey
when a person is charged with an offence.
Guinea Guyana the Permanent Secretary,
Ministry of Home Affairs when a charge has been laid against a person for an offence.
Honduras Hong Kong the Attorney General of
Hong Kong (a) when Magistrate issues a
warrant or summons; (b) when a person is charged
with an offence; (c) when an indictment is
preferred.
Hungary India the Ministry of Home
Affairs (a) when information relating
to commission of any crime is received by any law enforcement agency empowered to investigate such crime under the law for the time being in force and laid before a court of law;
(b) when any allegation is made orally or in writing to a court of law that a person has committed an offence;
(c) when a person is charged with an offence;
(d) when any investigation or inquiry into the commission of any offence is directed by a court of law.
Iran, Islamic Republic of

Isle of Man Her Majesty’s Attorney General for the Isle of Man
(a) where a justice of the peace issues a summons under section 4 of the Summary Jurisdiction Act 1989, when the complaint in relation to the offence is made to him;
(b) where a justice of the peace issues a warrant for the arrest of any person under that section, when the complaint in relation to the offence is made to him;
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(c) where a person is charged with the offence after being taken into custody without a warrant, when he is taken into custody;
(d) where an information is preferred by the Attorney General in a case where there have been no committal proceedings, when the information is lodged in the General Registry in accordance with section 4(1) of the Criminal Code Amendment Act 1917.
Italy the Ministry of Justice (a) when a person is notified in accordance with article 369 of the Italian Code of Criminal Procedure, that a prosecution against him is in progress;
(b) when a proposal for the application of a preventative measure (“misur di prevenzione”) is laid before a court.
Ivory Coast Japan Jersey Her Majesty’s Attorney
General for the Bailiwick of Jersey
(a) when the Bailiff issues a warrant in respect of an offence for the arrest of a person who is out of the islands;
(b) when a person is arrested and charged with an offence;
(c) when a summons in respect of an offence is served on a person at the instance of the Attorney General;
(d) when a summons in respect of the offence is served on a person in accordance with the provisions of Article 8 of the Police Court (Miscellaneous Provisions) (Jersey) Law, 1949.
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Jordan Kenya Kyrgyzstan Lativia Lesotho Luxembourg Macedonia Madagascar Malaysia the Inspector General of
Police, Malaysia when a person is charged with an offence.
Mauritania Mexico Moldova Monaco Morroco Myanmar Nepal Netherlands Afdeling Internationale
Rechtshulp (a) when a pre-trial financial
investigation has been initiated;
(b) when the provisional measure has been ordered by an investigating magistrate;
(c) when a public prosecutor has requested a pre-trial criminal investigation by an investigating magistrate to be instituted.
Nicaragua Niger Nigeria the Attorney General of the
Federation of the Republic of Nigeria

Norway Oman Pakistan Panama the Ministry of Government
and Justice when a person has been charged with an offence.
Paraguay Peru Poland Portugal Qatar Romania Russian Federation St. Kitts and Nevis
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St. Lucia St. Vincent and the
Grenadines
Saudia Arabia when an information has been laid before a judicial authority.
Scotland and Northern Ireland
The United Kingdom Central Authority (for Mutual Legal Assistance in Criminal Matters) C7 Division, Home Office, 50 Queen Anne’s Gate, London, SW1H 9A1
when information has been laid before Justice of the Peace or a person has been charged with an offence, or a bill of indictment has been preferred, or a petition warrant has been granted.
Senegal Seychelles Sierra Leone Slovakia Slovenia South Africa the Department of Foreign
Affairs (a) when a summons is issued
in respect of an offence; (b) when a person is charged
with an offence; (c) when a bill of indictment is
preferred.
Spain the Ministerio de Justicia, Madrid
when by virtue of a judicial resolution it is decided to proceed against a person for an offence.
Sri Lanka Sudan Suriname Sweden the Ministry of Foreign
Affairs when a public prosecutor has established that there are reasonable grounds to suspect that a person has committed an offence and accordingly is obliged under the Code of Judicial Procedure to notify the person of the suspicion.
Syrian Arab Republic

Switzerland Office federal de la police when proceedings for an offence are brought before an examining magistrate.
Togo Trinidad and Tobago Tunisia Turks and Caicos
Islands
Uganda
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Ukraine Union of Soviet
Socialist (including the Byelorussian Soviet Socialist Republic)

United Arab Emirates

United Mexican States
the Office of the Attorney General
when criminal proceedings are instituted by a judicial authority.
United States of America
the Office of the Attorney General of the United States of America
when an indictment, information or complaint has been filed against a person in respect of an offence.
Uruguay the Ministry of Education and Culture
when criminal proceedings are instituted by a judicial authority.
Uzbekistan Venezuela Yugoslavia (Serbia
and Montenegro), Federal Republic of

Zambia Zimbabwe

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ANTI-MONEY LAUNDERING REGULATIONS
ARRANGEMENT OF REGULATIONS
General
REGULATION 1. Citation 2. Interpretation 3. Meaning of “relevant financial business”
Identification Procedures
4. Identification procedures to be established and maintained 5. Introduced business 6. Other exceptions to the identification procedure
Record Keeping Procedures
7. Records to be kept by regulated persons
Internal Reporting Procedures
8. Internal reporting procedures
Training Procedures
9. Training procedures
Miscellaneous
10. Supervisory authorities etc. to report evidence of money laundering 11. Offences 12. Status of Code of Practice and supervisory guidance 13. Pre-existing business relationships
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ANTI-MONEY LAUNDERING REGULATIONS – SECTION 49
(S.R.O. 63/2005)
Commencement
[4 October 2005]

General
Short title
1. These Regulations may be cited as the Anti-Money Laundering Regulations.
Interpretation
2. (1) In these Regulations—
“Act” means the Proceeds of Crime Act;
“applicant for business” and “applicant” means a person seeking to form a business relationship, or to carry out a one-off transaction, with a regulated person;
“attorney-at-law” means an attorney admitted to practise before the Eastern Caribbean Supreme Court in Montserrat;
“business relationship” means an arrangement between a regulated person and any other person or persons, the purpose of which is to facilitate the carrying out of relevant financial business on a frequent, habitual or regular basis and two transactions can be considered a business relationship;
“cash” means banknotes, coins or travellers’ cheques in any currency;
“Code of Practice” means the Code of Practice issued under section 30 of the Act;
“dollar” and “$” means Eastern Caribbean dollar;
“established business relationship” means a business relationship in respect of which the regulated person has obtained satisfactory evidence of the identity of the person who, in relation to the formation of that business relationship, was the applicant for business;
“foreign regulated person” means a person—
(a) that is incorporated in, or, if it is not a corporate body, has its principal place of business in, a jurisdiction outside Montserrat (its “home jurisdiction”),
(b) that carries on business outside Montserrat that, if carried on in Montserrat, would be relevant financial business within the meaning of regulation 3(1)(a) to (g); and
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(c) that is subject to legislation in its home jurisdiction that, in respect of the business specified in paragraph (b), is at least equivalent to these Regulations;
“high value dealer” means a person who carries on an activity specified in regulation 3(1)(q);
“money laundering” means doing any act that constitutes—
(a) money laundering within the meaning of section 2(1) of the Act;
(b) drug money laundering within the meaning of section 2(1) of the Drug Trafficking Offences Act; or
(c) money laundering within the meaning of article 9 of the Anti- terrorism (Financial and Other Measures) (Overseas Territories) Order (UK 1822 of 2002).
“Money Laundering Reporting Officer” means the person appointed by a regulated person under regulation 8(1);
“one off transaction” means a transaction carried out between a regulated person and any other person or persons—
(a) that constitutes relevant financial business; and
(b) that is carried out other than in the course of an established business relationship;
“regulated licensee” means a person licensed or registered to carry on relevant financial business within the meaning of regulation 3(1)(a) to (g);
“regulated person” means—
(a) a regulated licensee; and
(b) any other person carrying on a relevant business in or from within Montserrat;
“relevant financial business” has the meaning set out in regulation 3(1);
“Reporting Authority” means the Reporting Authority appointed under section 30(2) of the Act; and
“supervisory authority” has the meaning specified in regulation 10.
(2) Unless expressly provided otherwise, words and expressions defined in the Act have the same meaning in these Regulations.
Meaning of “relevant financial business”
3. (1) Subject to paragraph (2), for the purposes of these Regulations “relevant financial business” means—
(a) banking business as defined in the Banking Act;
(b) international banking business as defined in the International Banking and Trust Companies Act;
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(c) trust business as defined in the International Banking and Trust Companies Act;
(d) company management as defined in the Company Management Act;
(e) insurance business as defined in the Insurance Act;
(f) acting as an insurance intermediary as defined in the Insurance Act;
(g) carrying on any business, or undertaking any activity, for which a licence is required under the Securities Act;
(h) a credit union as defined in the Co-operative Societies Act;
(i) the acceptance by a building society of deposits made by any person (including the raising of money from members of the society by the issue of shares);
(j) the business of—
(i) forming limited partnerships,
(ii) providing the registered office for limited partnerships,
(iii) operating a bureaux de change,
(iv) providing cheque cashing services,
(v) transmitting or receiving funds by wire or other electronic means,
(vi) lending,
(vii) financial leasing,
(viii) issuing and administering means of payment (for example, credit cards, travellers’ cheques and bankers’ drafts),
(ix)providing guarantees and commitments;
(k) insofar as not covered under paragraph (g), trading for own account or for account of customers in—
(i) money market instruments,
(ii) foreign exchange,
(iii) financial futures and options,
(iv) exchange and interest rate instruments, and
(v) transferable securities;
(l) insofar as not covered under paragraph (g)—
(i) participation in securities issues and the provision of services related to such issues,
(ii) the provision of advice to undertakings on capital structure, industrial strategy and related questions and advice and services relating to mergers and the purchase of undertakings,
(iii)portfolio management and advice,
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(iv) safekeeping and administration of securities.
(m) money broking;
(n) the provision of credit reference services;
(o) the provision of safe custody services;
(p) the provision by way of business of accountancy or audit services;
(q) the provision of legal services as an attorney-at-law with respect to trusts or financial or real estate transactions;
(r) the activity of dealing in goods of any description by way of business whenever a transaction involves accepting a total cash payment of $40,000 or more, or the equivalent in another currency;
(s) the business of acting as a real estate agent;
(t) operating a casino by way of business.
(2) A business is not relevant financial business in so far as it consists of—
(a) activities carried on by the Government Savings Bank; or
(b) activities carried on by a co-operative, other than a credit union, under the Co-operative Societies Act.
(3) In this regulation, “building society” has the meaning specified in the Building Societies Act.

Identification Procedures
Identification procedures to be established and maintained
4. (1) Subject to regulations 5 and 6, a regulated person must establish and maintain identification procedures complying with paragraphs (2), (3) and (4) and any requirements contained in the Code of Practice that, as soon as reasonably practicable after contact is first made between the regulated person and an applicant for business, require—
(a) the applicant to produce satisfactory evidence of his identity; or
(b) the regulated person to take certain specified measures designed to obtain satisfactory evidence of the applicant’s identity.
(2) The procedures established and maintained under paragraph (1) must—
(a) take into account the greater potential for money laundering which arises when the applicant for business is not physically present when being identified;
(b) require that where satisfactory evidence of identity is not obtained, the business relationship or the one-off transaction must not proceed any further; and
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(c) require that where the applicant acts or appears to act for another person, reasonable measures must be taken for the purposes of establishing the identity of that other person.
(3) For the purposes of this regulation, satisfactory evidence of identity is evidence which is reasonably capable of establishing and, to the satisfaction of the person who obtains the evidence, does establish, that the applicant for business is the person he claims to be.
(4) Without limiting paragraph (3), the evidence of identity obtained under a regulated person’s identification procedures must include evidence of—
(a) the full name of the applicant, together with any other names used by the applicant; and
(b) the physical address of the applicant.
Introduced business
5. (1) Paragraph (2) applies where an applicant for business is introduced to a regulated person by a third party (“the introducer”) who is—
(a) a regulated licensee; or
(b) a foreign regulated person;
unless any person handling the transaction on behalf of the regulated person knows or suspects that the transaction involves money laundering.
(2) Where this paragraph applies, a written assurance from the introducer that evidence of the identity of the applicant for business has been obtained and recorded in accordance with procedures maintained by the introducer under these Regulations or under regulations equivalent to these Regulations may be accepted by the regulated person concerned as satisfactory evidence of the identity of the applicant.
Other exceptions to the identification procedure
6. (1) A regulated person is not required to obtain evidence of the identity of an applicant for business where the regulated person has reasonable grounds for believing that the applicant is—
(a) a regulated licensee; or
(b) a foreign regulated person;
unless any person handling the transaction on behalf of the regulated person to whom the application for business is made knows or suspects that the applicant is engaged in money laundering.
(2) In respect of a one-off transaction, a regulated person is not required to obtain evidence of the identity of an applicant for business where the amount to be paid by or to the applicant for business is less than $30,000 or the equivalent in another currency unless—
(a) there are reasonable grounds for believing, whether at the outset or subsequently—
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(i) that the transaction is linked to one or more other transactions, and
(ii) that the total amount to be paid by or to the applicant for business in respect of all the linked transactions is $30,000 or more; or
(b) any person handling the transaction on behalf of the regulated person knows or suspects that the transaction involves money laundering.
(3) For the avoidance of doubt, a high value dealer is not required to obtain evidence of the identity of an applicant for business if the transaction to be undertaken does not involve the dealer accepting a total cash payment of $30,000 or more, or the equivalent in another currency.

Record Keeping Procedures
Records to be kept by regulated persons
7. (1) A regulated person must keep, for at least the minimum retention period—
(a) identification records complying with paragraph (3);
(b) transaction records complying with paragraph (4);
(c) registers in writing of—
(i) all reports made by the regulated person to the Reporting Authority, and
(ii) all enquiries relating to money laundering made to it by the Reporting Authority;
(d) records of all training given to employees in accordance with regulation 9; and
(e) such other records as may be required by the Code of Practice.
(2) The records required to be kept under paragraph (1) must be kept in such manner as will enable them to be retrieved or reproduced in legible and useable form within a reasonable period of time and must comply with any requirements contained in the Code of Practice.
(3) Where a regulated person obtains evidence of the identity of an applicant for business, whether or not a business relationship is eventually established or a one- off transaction carried out, the regulated person must keep—
(a) the evidence, or a copy of the evidence, obtained; or
(b) a record indicating the nature of the evidence, providing such information as will enable a copy of it to be obtained.
(4) A regulated person must keep a record of each transaction that he carries out in the course of his relevant financial business containing sufficient details to enable an investigation into suspected money laundering to be undertaken.
(5) For the purposes of paragraph (1), the minimum retention period is—
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(a) in the case of a record kept under paragraph (3), the period of 6 years from the last occurring of the following events—
(i) the ending of the business relationship between the regulated person and the other person, or
(ii) the carrying out of the last transaction between the regulated person and the other person; and
(b) in the case of a record kept under paragraph (4), the period of 6 years from the date upon which the transaction was completed.
(6) Notwithstanding this regulation, if a regulated person is so advised by a police officer or by the Authority or believes that a record is required for the purposes of a money laundering investigation, he must keep the record until the last occurring of the following events—
(a) the expiration of the minimum retention period; or
(b) the receipt of a written notice issued by a police officer or the Authority that the record is no longer required for the investigation.

Internal Reporting Procedures
Internal reporting procedures
8. (1) A regulated person must appoint a Money Laundering Reporting Officer.
(2) A regulated person must establish and maintain internal reporting procedures that require that—
(a) where information or any other matter comes to the attention of any employee of the regulated person in the course of the regulated person’s relevant financial business, as a result of which the employee knows, suspects or has reasonable grounds for knowing or suspecting that another person is engaged in money laundering, that employee must, as soon as reasonably practicable after that information or other matter comes to his attention, disclose it to the Money Laundering Reporting Officer;
(b) any disclosure made under paragraph (a) must be considered by the Money Laundering Reporting Officer in the light of all other relevant information for the purpose of determining whether or not the information or other matter contained in the report does give rise to such a knowledge or suspicion or such reasonable grounds for knowledge or suspicion;
(c) permitting the Money Laundering Reporting Officer to have reasonable access to any other information which may be of assistance to him in considering the report; and
(d) if the Money Laundering Reporting Officer determines that the information or other matter contained in the report does give rise to a
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knowledge or suspicion, or reasonable grounds for knowledge or suspicion, that another person is engaged in money laundering, he must disclose that information or matter to the Reporting Authority.
(3) The internal reporting procedures required to be kept under this regulation must comply with the requirements contained in the Code of Practice.
(4) A regulated person must not carry on relevant financial business unless he is in compliance with this regulation.
(5) Paragraphs (1) and (2) do not apply to an individual who, in the course of relevant financial business, does not employ or act in association with any other person.
(6) Nothing in paragraph (2) applies to information or any other matter that comes to a professional legal advisor where that information or other matter comes to him in privileged circumstances.
(7) For the purposes of paragraph (5), information or other matter comes to a professional legal advisor in privileged circumstances if it is communicated or given to him—
(a) by, or by a representative of, a client of his in connection with the giving by the advisor of legal advice to his client;
(b) by, or by a representative of, a person seeking legal advice from the advisor; or
(c) by a person in connection with legal proceedings or contemplated legal proceedings;
unless the information or other matter is communicated or given with the intention of furthering a criminal purpose.

Training Procedures
Training procedures
9. (1) A regulated person must take appropriate measures for the purpose of making all relevant employees aware—
(a) of the Act, the Drugs Trafficking Offences Act, section 13 of the Criminal Justice (International Co-operation) Act, these Regulations, the Code of Practice, any guidance issued by the Authority and any relevant supervisory or regulatory directions or guidance which apply to that person; and
(b) of the procedures it maintains in compliance with the duties imposed under these Regulations.
(2) A regulated person must provide all relevant employees with appropriate training in the recognition and handling of transactions carried out by or on behalf of any person who is, or appears to be, engaged in money laundering.
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(3) Training under this regulation shall, in addition, be given to all new relevant employees as soon as practicable after their appointment.
(4) For the purposes of this regulation, 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.
(5) A regulated person must not carry on relevant financial business unless he is in compliance with this regulation.
(6) The training procedures required to be maintained under this regulation must comply with any requirements contained in the Code of Practice.

Miscellaneous
Supervisory authorities etc. to report evidence of money laundering
10. (1) For the purposes of these Regulations, the following are supervisory authorities—
(a) the Governor;
(b) the Financial Secretary;
(c) the Commissioner of the Financial Services Commission;
(d) the Accountant General;
(e) the Director of Development.
(2) Where a supervisory authority, in the light of any information obtained by it, knows or suspects, or has reasonable grounds for knowing or suspecting, that someone has or may have been engaged in money laundering, the supervisory authority must disclose the information to the Reporting Authority as soon as is reasonably practicable.
(3) Where a supervisory authority passes the information to any other person who has such knowledge or suspicion or such reasonable grounds for knowledge or suspicion as is mentioned in paragraph (2), he shall disclose the information to the Reporting Authority.
(4) Where any person within paragraph (1), in the light of any information obtained by him, knows or suspects or has reasonable grounds for knowing or suspecting that someone has or may have been engaged in money laundering, he must, as soon as is reasonably practicable, disclose that information to the Reporting Authority.
(5) Where information has been disclosed to the Reporting Authority under this regulation, he (or any person obtaining the information from him) may disclose it in connection with the investigation of any criminal offence or for the purpose of any criminal proceedings, but not otherwise.
(6) A disclosure made under this regulation is not to be taken to breach any restriction on the disclosure of information (however imposed).
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Offences
11. (1) A regulated person who contravenes regulation 4(1), 7(1), 7(2), 8(1), 8(2), 8(3), 8(4), 9(1), 9(2), 9(3), 9(5) or 9(6) commits an offence.
(2) In proceedings against a person for an offence under paragraph (1), it shall be a defence for the person to prove that he took all reasonable steps to comply with the requirements of the regulation that he is alleged to have contravened.
(3) Where an offence under these Regulations committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity he, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
(4) Where the affairs of a body corporate are managed by the members, paragraph (3) shall apply in relation the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
(5) Where an offence under these Regulations committed by a partnership, or by an unincorporated association other than a partnership, is proved to have been committed with the consent or connivance of, or is attributable to any neglect on the part of, a partner in the partnership or (as the case may be) a person concerned in the management or control of the association, he, as well as the partnership or association, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Status of Code of Practice and supervisory guidance
12. (1) A regulated person shall comply with any provision of the Code of Practice that is stated to be a requirement for the purposes of these Regulations.
(2) Without prejudice to paragraph (1), in determining whether a person has complied with these Regulations, the Court may take account of—
(a) any guidance issued by the Authority, whether in the Code of Practice or otherwise; and
(b) any supervisory or regulatory directions or guidance which apply to that person.
Pre-existing business relationships
13. (1) In this regulation, “pre-existing business relationship” means a business relationship formed by a regulated person before the 26th July 2000.
(2) The Code of Practice may specify requirements, or provide guidance, in respect of the identification evidence to be obtained, if any, with respect to pre- existing business relationships.
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(3) Notwithstanding regulations 3 to 5, a regulated person is not required to maintain procedures for obtaining evidence as to the identity of a person with whom a pre-existing business relationship has been formed except as required by the Code of Practice.
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