By
Dr. Peter D. Maynard[1]
One of the keystone pieces of legislation the Bahamas Government has passed, in the package of legislation aimed at removing the Bahamas from the money laundering black list of the Organisation for Economic Cooperation and Development (OECD)and other supranational organisations, is the Proceeds of Crime Act 2000 (No. 44 of 2000).
The Act, which took effect on December 29, 2000, consists of seven parts: preliminary, confiscation orders, enforcement of confiscation orders, information gathering powers, money laundering, seizure of cash, and miscellaneous and supplemental.
1. Preliminary
Section 1 of the Act provides for the short title and Section 2 provides for the commencement date and the application of the new legislation. This Act shall apply to all property, whether or not situated in The Bahamas.
Sections 3 and 4 of the Act provide for the interpretation of several expressions used in the legislation such as drug trafficking, drug trafficking offence proceeds of criminal conduct, relevant offences, property and realisable property.
Section 5 of the Act makes provisions for the valuation of property which shall be the market value of the property taking into consideration any amount required to discharge an incumbrance.
Section 6 of the Act provides that a gift is caught by the legislation if it was made by the defendant at any time since the beginning of the period of six years ending when the proceedings were instituted or when an application for a charging or restraint order is made; or if it was made by the defendant at any time and was a gift of property received by the defendant at any time or was a gift received by the defendant in connection with drug trafficking carried on or by him or another person or property in whole or in part received by the defendant is to be treated as making a gift.
Section 7 of the Act provides for the definition of other terms used in legislation including money laundering and items which may be subject to privilege.
Section 8 of the Act provides for the institution and conclusion of proceedings by the conviction, discontinuance, acquittal, quashing of the conviction or the satisfaction of the confiscation order proceedings under the legislation.
2. Confiscation Orders
Sections 9 to 15 provide for confiscation orders which may be applied for or made by a court when it considers appropriate. Before a confiscation order is made the court shall first determine whether the defendant has benefited from drug trafficking or from the relevant offence. Provision is made for the court to determine whether the defendant has benefited from the offence. A person benefits from drug trafficking or a relevant offence if he obtains property as a result of or in connection with its commission or if he derives a pecuniary benefit as a result of or in connection with its commission. A confiscation order may not be obtained from any court before which a defendant has been convicted. Provision is made for the assessing the proceeds of crime and the procedure for obtaining the confiscation order. Provisions are made for the protection of third party rights in relation to property which is subject to a confiscation order. The Court is given the power to set aside any conveyancing or transfer of the property that occurred after the seizure of the property unless the conveyance or transfer was for valuable consideration to a person acting in good faith and without notice.
Provision is also made for a confiscation order to be made where a defendant has absconded and where an absconder has been acquitted, provision is made for the cancellation of a confiscation order.
Section 16 provides for the reconsideration of the case and allow the Attorney General on application to the court to introduce evidence which was not previously available but which he believes would lead the court to determine that the defendant had benefited from drug trafficking or any relevant offence.
Section 17 provides for the revised assessment of the proceeds of criminal conduct where the Attorney General is of the opinion that the real value of the defendants proceeds of drug trafficking or benefit from any relevant offence was greater than their assessed value.
Section 18 provides the procedure for reconsideration of the confiscation order and enables the court to take into consideration any payment of other reward received by the defendant and or any property obtained by the defendant after the date of conviction. Application under section 16 or 17 may be made up to a period of six years after conviction of the defendant.
Section 19 provides for increase in realisable property where the amount which a person is ordered to pay under a confiscation order is less than the amount assessed to be his proceeds of drug trafficking or benefit from relevant offences. Section 20 provides for the procedure to be followed when there is inadequacy of realisable property.
Section 22 provides for the variation of a confiscation order made against an absconder when the defendant ceases to be an absconder.
3. Enforcement of Confiscation Orders
Section 23 of the Act provide for the enforcement of confiscation orders. A defendant who is unable to pay any amount under a confiscation order is subject to a term of imprisonment. Section 24 provides for interest to be paid on unpaid sums.
Sections 25,26,27 and 28 provide for cases in which restraint and charging orders may be made. Such orders may be obtained from a Magistrate’s Court or the Supreme Court.
Sections 29, 30, 31 and 32 of the Act provide for a realisation of property. Under Section 29 the court may appoint a receiver in respect of realisable property. The court may empower the receiver to take in any realisable property in such manner as the court may direct. Any amount due in respect of the remuneration and expenses of a receiver shall be paid out of the Consolidated Fund or the Confiscated Assets Fund.
Section 33 of the Act provides the procedure where a person who holds realisable property is adjudged bankrupt for the purposes of the Bankruptcy Act.
Section 34 of the Act provides the procedure for when 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 the voluntary winding up of that company.
4. Information Gathering Powers
Sections 35,36 and 37 of the Act provide for the investigation of offences under the legislation and the powers of police officers in obtaining information for the purposes of any prosecutions. A police officer of the rank of inspector or above may obtain a production order from a Magistrate Court to have access to any material in respect of which an offence has been committed.
Section 38 of the Act provides for disclosure of information by Government Departments for purposes of investigating an offence under the Act.
Section 39 of the Act provides for monitoring orders to be obtained by a police officer of or above the rank of an inspector where there is reasonable cause to believe that a person has committed an offence under this Act.
5. Money Laundering
Sections 40 to 44 of the Act provide for the offences relating to money laundering. Those offences are concealing or transferring proceeds of criminal conduct; assisting another to retain proceeds of criminal conduct; acquisition, possession, or use of proceeds of criminal conduct; disclosure of knowledge or suspicion of money laundering; and tipping off.
Section 45 of the Act provides for the penalties for money laundering. A person found guilty of a money laundering offence shall be liable on summary conviction to imprisonment for five years or a fine of $100,000 or both and on conviction on information for twenty years or an unlimited fine or both. A person found guilty of not disclosing the knowledge or suspicion of money laundering or tipping off shall be liable on summary conviction to imprisonment for three years or a fine of $50,000 or both and on conviction on information to imprisonment for ten years or an unlimited fine or both.
6. Seizure of Cash
Section 46 of the Act provides for the seizure and detention of cash that may represent the proceeds of criminal conduct or that is intended to be used in any criminal conduct.
Section 47 of the Act provides for the forfeiture of any cash seized under Section 46.
Section 48 of the Act provides for holding of such cash seized under Section 46.
7. Miscellaneous & Supplemental
Section 49 of the Act provides for the enforcement of external confiscation orders for the purpose of recovering property or the value of such property obtained in connection with drug trafficking or any offence which would if committed in The Bahamas be triable on indictment; or to deprive any person of any pecuniary advantage obtained.
Section 50 of the Act provides for the registration of an external confiscation order by the Supreme Court.
Section 51 of the Act provides for the admission in evidence of the terms of a corresponding law in force in a country outside The Bahamas. Sections 52 and 53 of the Act provide for the establishment and administration of a Confiscated Assets Fund. The Fund shall consist of all proceeds of criminal conduct recovered under a confiscation order, cash forfeited under Part VI of the Act any money forfeited under section 33 of the Dangerous Drugs Act, 2000, and money paid to the Government of The Bahamas by a foreign jurisdiction in respect of confiscated assets.
Section 54 of the Act provides for where an offence is committed by a body corporate.
Section 55 of the Act provides for police officers to arrest without warrant a person who has committed an offence under this Act. In addition, the same power is also given to a customs officer in relation to the seizure of money under Section 46.
Section 56 of the Act provides for police officers not to disclose any information obtained pursuant to this Act except when lawfully required to do so by a court of law.
Section 57 of the Act provides for compensation to a person where an investigation is begun against that person for a drug trafficking or relevant offence and no proceedings are instituted against that person; proceedings are instituted and do not result in a conviction; or where a conviction has been quashed or a pardon has been given in respect of the conviction. The amount of compensation shall be such as the court thinks just in all the circumstances of the case and in any case shall not exceed $100,000.
Section 58 of the Act provides for the payment of costs in relation to any proceedings under the Act. The costs shall be limited to a kind that is normally recoverable by a successful party in civil proceedings. Such costs shall be paid out of the Consolidated Fund or the Confiscated Assets Fund.
Section 59 of the Act provides for the standard of proof to be used in proceedings for an offence under the Act.
Section 60 of the Act provides for appeals of a decision of a court in proceedings under the Act to lie to the Court of Appeal.
Section 61 of the Act provides for the Minister of Finance to make regulations in relation to Part V and for the Minister responsible for the Police to make regulations in any other case.
Section 62 of the Act applies the provisions of this Act to the Crown.
Section 63 of the Act provides for the repeal of the Tracing and Forfeiture of the Proceeds of Drug Trafficking Act and the Money Laundering Proceeds of Crime Act.
Section 64 of the Act provides for the continuing operation of any regulations and orders made under the Tracing and Forfeiture of the Proceeds of Drug Trafficking Act and the Money Laundering Proceeds of Crime Act.
[1] Counsel and Attorney at Law, specializing in commercial law, company law, trusts, banking, and civil and criminal litigation. President of the Bahamas Bar Association and President of the Organization of Commonwealth Caribbean Bar Associations. Admitted to practice law in 1979 in England, Wales and The Bahamas; and in 1986 in St. Lucia, St. Vincent and the Grenadines, Antigua and Barbuda and Trinidad and Tobago, in 1996, pro hac vice in the Turks and Caicos Islands. Education: McGill University (B.A., Hons.); Johns Hopkins University (M.A., Ph.D.); Cambridge University (LL.M.); Sorbonne University (1996); Cornell University (1968). Member os the Hon. Society of Gray’s Inn. Former posts: Legal Adviser, Bahamas Ministry of Foreign Affairs; Economics Affairs Officer, United Nations; and Acting Stipendiary and Circuit Magistrate. Contributing Editor, Journal of Financial Crime, Journal of Money Laundering Control, Amicus Curiae, International Journal of Banking Regulation, Company Lawyer and Caribbean Law and Business. PETER D. MAYNARD & CO., Chambers, Jehovah Jireh House, Bay & Deveaux Streets, P.O. Box N-1000, Nassau, Bahamas, telephone: (242) 325-5335 , fax: (242) 325-5411, email: peter.maynard@maynardlaw.com
