Byron Buckley, News EditorWHEN THE Proceeds of Crime Bill, currently before a committee of parliament, comes into effect, there will hardly be any place for members of local and international criminal networks to stash their ill-gotten gains. Law enforcers will be peering into bank accounts, searching under mattresses where necessary and forfeiting properties in the search of "recoverable property", including money, real estate or personal property and intangible assets.
At least, that is the intention of National Security Minister and aspiring prime minister, Dr. Peter Phillips. "Jamaican courts", he points out, "have no power to authorise the confiscation of assets or benefits that are derived from the general criminal lifestyle of the defendant, as opposed to specific criminal acts evidenced by a conviction. Another legislative deficiency, he cites in his introductory remarks contained in the Bill, "concerns the lack of legislative authority to forfeit property reasonably suspected to be derived from criminal conduct, where no one has been held criminally liable for that conduct".
UPGRADING THE LEGISLATIVE WEAPONS
The Proceeds of Crime Act, when passed, is intended to upgrade the legislative weapons that law enforcement authorities use in the battle against increasingly sophisticated criminal enterprises, which are expert at insulating or hiding their loot from the reach of the law. Current laws, argues Dr. Phillips, are ineffective in bringing crime bosses to book and hit them where it hurts most: In their pockets. In this regard, the proposed act seeks to mend the defects contained in the Drug Offences (Forfeiture of Proceeds) Act, as well as repeal the Money Laundering Act.
The need for a modern Proceeds of Crime Act becomes urgent in light of Government's targeting of criminal networks through Operation Kingfish and other initiatives over the last 15 months. In addition to the death or imprisonment of several high-profile crime bosses, several persons are fighting attempts to extradite them to the United States to face alleged drug charges. But in many of these instances law enforcement authorities will be unable to confiscate the tremendous wealth accrued by participants in criminal enterprises.
Sadly, though, the measure is moving through Parliament at a snail's pace. It went before a joint select committee of both Houses of Parliament on November 23 last year; the committee has not met since. The Proceeds of Crime Bill and the Interception of Communication Bill are outstanding among an anti-crime legislative package the Patterson administration promised private sector leaders last June would be passed before the end of the current legislative year on March 31. The administration needs to keep its word!
Section 5 of the Proceeds of Crime Bill empowers the court to seize or forfeit the property of a defendant who the court determines to have a "criminal lifestyle and/or has benefited from his general criminal conduct". The court is also empowered to identify any property used in or in connection with the offence concerned and order that the property or asset be forfeited to the state. Instead of forfeiting a defendant's property, the court, can alternatively, order the person to pay a "recoverable amount" equal to the value of his benefits as assessed in accordance with the provisions of the act underscoring the point that crime does not pay.
Section 6 of the bill describes a defendant as having a "criminal lifestyle" if the offence concerned "constitutes conduct forming part of a course of criminal activity, from which the defendant obtains a benefit". Criminal lifestyle is also determined if the offence concerned is "committed over a period of at least one month and the defendant has benefited from the conduct which constitutes the offence".
MARKED DEPARTURE FROM
EVIDENCE-BASED LEGAL TRADITION
If these provisions of the bill are enacted into law, they will represent a marked departure from Jamaica's evidence-based legal tradition, as the property will be confiscated on the assumption that it was derived from criminal conduct, although no one has been held criminally liable for that conduct. But the National Security Minister is insistent on the need for such a legal provision. "There are serious practical implications of this (current) restriction," he explained in the Memorandum of Objects contained in the Bill. "The law enforcement agencies may have cogent evidence of the tainted origins of particulars' property, yet be unable to effect forfeiture proceedings because a criminal charge cannot be brought against a specific person."
In anticipation of alleged offenders disposing of property accumulated through criminal enterprise, the proposed law will empower the court to issue a restraining order.
This can be done when a criminal investigation of the offence has been started in Jamaica; or proceedings for the offence are in progress in Jamaica. The restraint order includes all realisable property held by the defendant, whether or not the property is specified in the order. Furthermore, property transferred to the defendant after order is made will also be barred from disposal.
Section 39 of the bill prescribes sanctions for persons who "knowingly contravene a restraint order by disposing of, dissipating, damaging, destroying, or otherwise dealing with property that is subject to the restraint order." Conviction of an individual in a Resident Magistrate's Court attracts a fine of between $500,000 and $1 million and/or maximum imprisonment of three years. In the case of a corporate entity, the proposed fine is a maximum of $2 million.
In a further move to seize ill-gotten gains, the Proceeds of Crime Bill permits the court to appoint a "Director's receiver" with the power to:
Take possession of the property;
Manage or otherwise deal with the property;
Realise the property, as specified by the court.
Start, carry on or defend any legal proceedings in respect of the property.
Managing the property, the bill specifies, includes selling the property or any part of it; carrying on or arranging for another person to carry on trade or business in which the assets are part of the confiscated property; and incurring capital expenditure in respect of the property.
In addition to real property, cash will be subject to confiscation under the proposed law. It will empower an "authorised officer" to search premises or persons for cash deemed to be recoverable property, or is intended by any person for use in unlawful conduct.
Furthermore, the authorised officer may, in his discretion, require persons suspected of carrying dirty money to permit a search of articles in his possession or on his person.
Section 72 of the bill empowers the authorised officer to "detain the person so long as is necessary for the exercise of those powers."
Searches for cash, however, must be done on the strength of a warrant issued by a justice of the peace or a senior officer in the Department of Customs or the Jamaica Constabulary Force. Alternatively, a search warrant could be issued by the director or a senior officer of the Assets Recovery Agency designated to be the Financial Investigation Division of the Ministry of Finance and Planning. Cash seized may be held initially for 72 hours, if the officer has reasonable grounds; but the period may be extended by a Resident Magistrate's order. In apparent sensitivity to the possibility of infringements of human rights during searches, the bill stipulates that a code of practice governing searches must be developed by the National Security Minister and approved by Parliament.
The hunt for dirty money is also to be conducted in financial institutions. Section 119 of the Proceeds of Crime Bill proposes to permit a judge to issue a customer information order for the purposes of "a forfeiture investigation or a money laundering investigation being carried on in respect of a person specified in the application" from the law enforcement agencies. They want to know if a particular person solely or jointly has held any account at the financial institution or has conducted any business during a specified period of time. If so, law enforcers want the following customer information:
Account or transaction number.
Full name and date of birth.
Tax registration number.
Most recent and previous addresses.
Commencement and termination date of account.
In the case of transaction, the date and a description.
Proof of identity.
Name, date of birth, current and previous addresses of joint account holder.
Number (s) of other account (s) on which the person is a signatory and details of the other person (s) holding the account.
Section 122 of the proposed act stipulates penalties for financial institutions which fail to comply with the customer information order by the court. The maximum fine on conviction for such an offence is $1 million. A similar fine is payable if the institution knowingly or recklessly provides false or misleading information.
In light of the requirement for employees of financial institutions to supply customer information, the proposed law provides them with protection against being sanctioned legally or administratively.
Section 137 states: "No civil or criminal proceedings for breach of confidentiality may be brought, nor any professional sanction for such breach may be taken, against any person, or against a director or employee of an institution, who provides or transmits information requested by the enforcing authority under this Act ..."
