Senate Passes Companion Legislation to Proceeds of Crime Act

The Senate, on Friday (May 25) passed companion legislation to the Proceeds of Crime Act, which is designed to fight organized crime and ensure that criminals do not benefit from their ill-gotten gains.
Minister of Justice, Senator A.J. Nicholson piloted the Proceeds of Crime Regulations and the Proceeds of Crime Money Laundering Prevention Regulations 2007. In explaining the Proceeds of Crime Regulations, Senator Nicholson informed that it governs the commencement and conclusion of proceedings for an offence for the purposes of the principal Act.
He informed that proceedings may commence where a Justice of the Peace issues a summons in respect of the offence and “the matter is deemed to have been completed first where the defendant is acquitted on all counts and the proceedings are concluded when the defendant is acquitted on each and every count.” He said that where a conviction has been squashed or the defendant is pardoned before a forfeiture order or a pecuniary penalty order is made, the proceedings are also deemed to be concluded.
In relation to the Proceeds of Crime Money Laundering Regulations 2007, Senator Nicholson said that section one, subsection 3 (9) will repeal both the Drug Offences (Forfeiture Drug Offences) and the Money Laundering Acts.
Regulation three of the legislation imposes a duty on financial institutions to report certain transactions to the designated authority as well as outline the entities and transactions, which are exempt.
“Institutions may report based on their own volition or if the request is made by the designated authority. A financial institution or a regulated business, which fails to report or which fails to comply, will be fined. The report is not to be made to any one other than the designated authority,” said Senator Nicholson.
The Minister or his agent may grant exemption to the institution from reporting a transaction or a series of transactions, where he is satisfied that the amount of cash involved does not exceed the amount that is reasonably commensurate with the lawful business activities of the customer.
Regulation five requires regulated businesses to implement money laundering prevention programmes and policies as may be necessary for the purpose of preventing or detecting money laundering. “Where this is not done, it is an offence.for which an individual upon conviction in the Resident Magistrate Court, would be subject to a fine up to $1 million or for imprisonment up to 12 months,” said Senator Nicholson.
Regulation nine, which deals with wire transfers, makes it an offence where there are no proper procedures in place to trace the origin of the transfer, as well as the recipients of the transfer, especially if it exceeds the prescribed amounts.
“Failure on the part of the regulated business to have proper systems in place to trace the transaction would constitute an offence attracting a fine up to$3 million and in the case of an individual, the fine would be $1 million or 12 months imprisonment,” explained Senator Nicholson.
In the meantime, Opposition Senator Anthony Johnson implored “persons, who are entrusted to carry out these regulations under the relevant statutes, to take into account the extremely delicate and important functions that they are being called upon to do”.
“It is important that this be not used in any manner to carry out any side agenda because that is where the rule of law has always had a difficulty,” he noted.
In supporting his arguments, Senator Trevor Munroe said “the authorities need to ensure that this piece of legislation is implemented within the framework of the rule of law and there is no deviation from that by way of using this legislation for any purposes other than to get at assets in the hands of criminals”.
The Proceeds of Crime Act will provide for the forfeiture through the courts, of properties and accumulated wealth, which cannot be explained by legitimate activity.