JIS News

Story Highlights

  • The House of Representatives on Tuesday (November 8) approved amendments to the Proceeds of Crime Act (POCA) to correct a referencing error in the legislation.
  • The Bill was amended to facilitate the substitution of the words ‘Commissioner of Lands’ for ‘Commissioner of Land Valuations’ and will give the Commissioner of Lands the power to take all necessary action for the State to have ownership of seized property.
  • “The amendments to Section 9 (Subsection 3c) of the POCA will allow for the naming of the correct person or entity, that is to say the Commissioner of Lands, so that the powers vested in the said Commissioner, under the Crown Property Vesting Act, can be exercised,” he said.

The House of Representatives on Tuesday (November 8) approved amendments to the Proceeds of Crime Act (POCA) to correct a referencing error in the legislation.

The Bill was amended to facilitate the substitution of the words ‘Commissioner of Lands’ for ‘Commissioner of Land Valuations’ and will give the Commissioner of Lands the power to take all necessary action for the State to have ownership of seized property.

In piloting the Bill, Minister of National Security, Hon. Robert Montague, said the Act established the Asset Recovery Agency (ARA), which is the Financial Investigations Division (FID).

He said the FID was established by the Financial Investigations Act to investigate financial crimes and connected matters by managing, safeguarding, maintaining and controlling any property seized or restrained under its governing legislation, as well as those seized, restrained or forfeited under any other enactment in connection with the proceeds related to financial crimes.

“It is important to note that the FID has extensive powers under the POCA. The FID/ARA under POCA has the power to secure the detention, custody or preservation of any property vested in it by recovery order pursuant to civil proceedings,” Mr. Montague explained.

He noted that in the case of property, other than money, the FID is empowered to realise the value of the property for the benefit of the FID.

Mr. Montague added that where property is the subject of a recovery order and includes real property, the Order will vest the real property in the Crown.

The Minister said Section 9 (Subsection 3c) of the Act addresses the status of real property once the court makes a forfeiture order at a conviction.

“The property will vest absolutely in the Crown by virtue of the order. This also applies when a foreign confiscation order is made in relation to real property registered in Jamaica. Section 9 (3a) and Subsection (b) provide that where property against which a forfeiture order is made, the property vests in the crown in equity, but not at law until the applicable registration requirements have been complied with and the Crown is entitled to be registered as the owner of the property,” Mr. Montague said.

He said that Section 9 (Subsection 3c) of the Act gives the Commissioner of Land Valuations the power, on behalf of the Crown, to do so or authorise the doing of anything necessary to obtain the registration of the Crown as owner.

“This, however, is an error of the law as the appropriate person or entity to exercise these powers is the Commissioner of Lands, pursuant to Section 4(2) of the Crown Property Vesting Act,” Mr. Montague said.

“The aforementioned error poses legislative difficulty when utilising the said subsection to have such property registered in the name of the Crown. This hampers the efforts of the FID, as there are several applications currently before the court for forfeiture of assets post-conviction,” he added.

The Minister explained that the FID, having held the forfeited properties for an extended period of time, has found it necessary to pursue other routes in order to transfer these properties to the Crown.

Mr. Montague said on a number of occasions, the FID had to go back to court to obtain further orders, so as to give the Registrar of the Civil Division of the Supreme Court the power to sign on behalf of the convicted persons who were either unwilling or were unable to sign the instruments of transfer.

“The amendments to Section 9 (Subsection 3c) of the POCA will allow for the naming of the correct person or entity, that is to say the Commissioner of Lands, so that the powers vested in the said Commissioner, under the Crown Property Vesting Act, can be exercised,” he said.

He added that this would empower the Commissioner to effect the registration of the Crown as owner of the various pieces of real estate that are the subject of forfeiture orders or recovery orders, so that these assets may be disposed of and the proceeds made available to the Crown.

POCA was passed by Parliament in 2007 to replace the Money Laundering Act (MLA) and provides for the investigation, identification and recovery of the proceeds of crime and connected matters.