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The House of Representatives yesterday (Jan. 23) passed the Proceeds of Crime Act following a suspended debate, which began last year and simultaneously approved the Report of the Joint select Committee, which was set up to consider and report on the Bill.
The Act repeals and replaces the Drug Offences Forfeiture of Proceeds and Money Laundering Acts, and will provide for forfeiture through the courts, all properties and accumulated wealth, which cannot be explained by legitimate activity. It will support efforts to fight organized crime and to ensure that persons engaged in criminal activities do not profit from their illegal activities.
Minister of National Security, Dr. Peter Phillips explained that the 140-clause Act would “substantially take the profit out of criminal activity and ensure that those who are committed to a criminal lifestyle and who can have this demonstrated before the courts, will not be able to benefit from the illicit proceeds of their criminality”.
“If a person has managed to evade justice in the short term and has shrewdly converted that loot into actual possessions, be they houses, cars, stocks and shares of other items, there can be no reason either from the point of view of law or Constitution, or any moral basis at all, why such proceeds of criminal activity should be retained by those who committed the crimes,” he stated.
This principle he pointed out, had found legislative expression in the Drug Offences Forfeiture of Proceeds Act, in which it was provided that where a person had been convicted of a drug offence, an application may be made to the court for a forfeiture order against tainted property and upon conviction, that property may be seized by the state.
That Act also provided for a pecuniary penalty to be applied in a sum equal to the value of the tainted property, if that was the more feasible course. “This legislative principle is now being extended beyond drug offences to a wider range of crimes as specified in the Bill, whether repeated crimes overtime, or a single crime,” Dr. Phillips explained.
The Bill provides for the establishment of an assets recovery agency and the Minister said that when the Bill comes into force, he intended to designate the Financial Investigations Division, as that agency.
Under the criminal law approach, where a person has been convicted of an offence, including earning from prostitution and illegal use of and exporting of firearms, the assets recovery agency or the Director of Public Prosecutions (DPP) may apply to the Supreme Court for a Forfeiture Order against property of that offender.
“This is quite separate from the penalty that may be imposed in relation to the offence for which the offender has been convicted. So, if the penalty involved is imprisonment or a fine, that is one matter, but beyond that, it will be possible for the properties, owned and demonstrated to be proceeds of that criminal activity or lifestyle involved to be forfeited by the courts,” Dr. Phillips elaborated.
Further, he said, if the defendant has been convicted in a Resident Magistrates (RM) court, the RM may, on the application of the agency or the DPP, commit the matter to the Supreme Court for consideration, although this would not affect the right of the RM to sentence the convicted offender. The court may grant this order if it is satisfied that the offender has a criminal lifestyle, and has benefited from his general criminal conduct.
“A criminal lifestyle is evidenced by the conviction of certain offences or conduct done over a period of time, forming part of a course of criminal activity or offences committed over a period,” the Minister explained.
“If the court does not find that he has a criminal lifestyle, all that needs to be proven is that he has benefited from a particular crime. The court will identify property used in or in connection with the offence . and that property will be forfeited,” he continued.
If the property has been so identified cannot be located or is located outside of the island or has been transferred to a third party, it is possible that the courts, instead of ordering the forfeiture of the property, may make a pecuniary penalty order, against the offender.
Dr. Phillips noted that the legislation also made provision for appeal by third parties, who may have unwittingly bought property from persons involved in criminal enterprises, or persons who “otherwise may have been drawn into the web”.
While supporting the Bill, Member of Parliament for North Eastern St. Andrew, Delroy Chuck, said more far-reaching measures should be sought to apprehend criminals, such as investigating the tax records of those who lived lavish lifestyles with no visible means of income.