Arrangement of Sections

Section

Part I

Preliminary

1. Short title

2. Principal objects

3. Interpretation

4. Definition of certain terms etc.

Part II

FORFEITURE ORDERS, CONFISCATION ORDERS AND RELATED MATTERS

General

5. Application for forfeiture or confiscation order on conviction

6. Notice of application

7. Amendment of application

8. Procedure on application

9. Application for forfeiture order on abscondence

Forfeiture Orders

10. Forfeiture order on conviction

11. Effect of forfeiture order

12. Voidable transfers

13. Protection of third parties

14. Discharge of forfeiture order on appeal and quashing of conviction

15. Payment instead of forfeiture order

16. Application of procedure for enforcing fines

17. Forfeiture order on abscondence

Confiscation Orders

18. Confiscation order on conviction

19. Rules for determining benefit and assessing value

20. Statements relating to benefits from commission of scheduled offences

21. Amount to be recovered under confiscation order

Part I

Preliminary

l. Short title

This Act may be cited as the Proceeds of Crime Act,1990.

2. Principal Objects

The principal objects of this Act are

(a) to deprive persons of the proceeds of, and the benefits derived from, the commission of Scheduled offences:

(b) to provide for the forfeiture of property used in, or in connection with, or for the purpose of facilitating, the commission of scheduled offences;

(c) to provide for the forfeiture of property derived, obtained or realised directly or Indirectly from the commission of scheduled offences;

(d) to provide for the making of confiscation orders in respect of property shown to have been derived, obtained or realised by a person directly or indirectly, from the Commission of scheduled offences;

(e) to enable law enforcement authorities to trace such proceeds, benefits and property.

3. Interpretation

In this Act

"benefit"

falls to be construed in accordance with section 4(1);

"Commissioner"

means the Commissioner of Police

"confiscation order"

mans an order made by the Court pursuant to section; 18(1 );

"the Court"

means the High Court;

"forfeiture order"

means an order made by the Court pursuant to section 10(1);

"gift caught by this Act"

falls to be construed in accordance with section 4(12), and (14);

"interest"

in relation to property, means

(a) a legal or equitable interest in the property; or

(b) a right, power or privilege in connection with the property;

"police officer"

means a member of the Police Force;

"proceeds"

means any property that is derived, obtained or realised, directly or indirectly, by any person from the commission of a scheduled offence;

"proceeds of crime"

means

(a) proceeds of a scheduled offence; or

(b) any property or benefits derived, obtained or realised, directly or indirectly, by any person from any act or omission that, occurred outside Barbados, and would, if it had occurred in Barbados, have constituted a scheduled offence;

"production order"

means an order made by the Court pursuant to section 42;

"property"

includes money and all other property, real or personal, including things in action and other intangible or incorporeal property;

"Public Trustee"

means the Public Trustee appointed in accordance with the Public Trustee Act;

[Cap. 248]

"realisable property"

falls to be construed in accordance with section 4(3) and (4);

"relevant application period"

, in relation to a person's conviction of a scheduled offence, means the period of 12 months after

(a) where the person is to be taken to have been convicted of the offence by reason of section 4(2)(a), the day on which the person was convicted of the offence;

(b) where the person is to be taken to have been convicted of the offence by reason of section 4(2)(b), the day on which the person was discharged without conviction;

(c) where the person is to be taken to have been convicted of the offence by reason of section 4(2)(c), the day on which the court took the offence into account in passing sentence for the other offence referred to in that paragraph;

"restraining order"

means an order made by the Court pursuant to section 32(1);

"scheduled offence"

means an offence specified in the Schedule, and includes

(a) an offence of conspiring to commit any of those offences;

(b) an offence of aiding, abetting, counselling or procuring, or being in any way knowingly concerned in, the commission of any of those offences;

(c) an offence of attempting to commit any of those offences;

(d) an offence of inciting another to commit any of those offences;

"tainted property"

, in relation to a scheduled offence, means

(a) property used in, or in connection with, the commission of the offence; or

(b) property derived, obtained or realised, directly or indirectly, from the commission of the offence;

"unlawful activity"

means an act or omission that constitutes an offence against a law in force in Barbados or against a law of any other country.

4. Definition of certain terms etc.

(1) In this Act

(a) "a benefit"

includes any property, service or advantage, whether direct or indirect;

(b) "to benefit"

has a corresponding meaning;

(c) a reference to a benefit derived or obtained by, or otherwise accruing to, a person ("A") includes a reference to a benefit derived or obtained by, or otherwise accruing to, another person at A's request or direction.

(2) For the purposes of this Act, a person is to be taken to be convicted of a scheduled offence if

(a) he is convicted, whether summarily or on indictment, of the offence;

(b) he is charged with the offence and is found guilty but is discharged without conviction; or

(c) a court with his consent takes the scheduled offence, of which he has not been found guilty, into account in sentencing him for another offence.

(3) In this Act "realisable property" means, subject to subsection (4)

(a) any property held by a person who has been convicted of, or charged with, a scheduled offence; and

(b) any property held by a person to whom a person so convicted or charged has directly or indirectly made a gift caught by this Act.

(8) References in this Act to the value at any time ("the material time") of the transfer of any property are references to

(a) the value of the property to the recipient when he receives it adjusted to take account of subsequent changes in the value of money; or

(b) where subsection (9) applies, the value there mentioned,

Whichever is the greater.

(12) A gift, including a gift made before the commencement of this Act, is caught by this Act where

(a) it was made by the person convicted or charged at any time after the commission of the offence or, if more than one, the earliest of the offences to which the proceedings for the time being relate; and the Court considers it appropriate in all the circumstances to take the gift into account;

(b) it was made by the person convicted or charged at any time and was a gift of property

(i) received by the person in connection with the commission of a scheduled offence committed by him or another; or

(ii) which in whole or in part directly or indirectly represented in the person's hands property received by him in that connection.

Part II FORFEITURE ORDERS, CONFISCATION ORDERS AND RELATED MATTERS

General

5. Application for forfeiture order or confiscation order on conviction

(1 ) Where a person is convicted of a cheduled offence committed after the coming into force of this Act, the Director of Public Prosecutions may apply to the Court for one or both of the following orders

(a) a forfeiture order against property that is tainted property in respect of the scheduled offence;

(b) a confiscation order against the person in respect of benefits derived by the person from the commission of the scheduled offence.

(2) The Director of Public Prosecutions may not make an application after the end of the relevant application period in relation to the conviction.

(3) An application under this section may be made in respect of one or more than one scheduled offence.

(4) Where an application under this section is finally determined, no further application for a forfeiture order or a confiscation order may be made in respect of the offence for which the person was convicted unless the Court gives leave for the making of a new application on being satisfied

(a) that the property, or benefit to which the new application relates identified after the previous application was determined; or

(b) that necessary evidence became available after the previous application was determined; or

(c) that it is in the interests of justice that the new application be made.

6. Notice of application

(1) Where the Director of Public Prosecutions applies for a forfeiture order against property in respect of a person's conviction of a scheduled offence

(a) the Director of Public Prosecutions must give no less than 14 days written notice of the application to the person and to any other person who the Director of Public Prosecutions has reason to believe may have an interest in the property;

(b) the person, and any other person who claims an interest in the property, may appear and adduce evidence at the hearing of the application; and

(c) the Court may, at any time before the final determination of the application, direct the Director of Public Prosecutions

(i) to give notice of the application to any person who, in the opinion of the Court, appears to have an interest in the property;

(ii) to publish in the Official Gazette and in a newspaper published and circulating in Barbados notice of the application in the manner and containing such particulars and within the time that the Court considers appropriate.

(2) Where the Director of Public Prosecutions applies for a confiscation order against a person

(a) the Director of Public Prosecutions must give the person no less than 14 days written notice of the application; and

(b) the person may appear and adduce evidence at the hearing of the application.

7. Amendment of application

(1) The Court hearing an application under section 5(1) may, before final determination of the application, and on the application of the Director of Public Prosecutions, amend the application to include any other property or benefit, as the case may be, upon being satisfied that

(a) the property or benefit was not reasonably capable of identification when the application was originally made; or

(b) necessary evidence became available only after the application was originally made.

8. Procedure on application

(1) Where an application is made to the Court for a forfeiture order or a confiscation order in respect of a person's conviction of a scheduled offence whether in the magistrates' court or in the Court, the Court may, in determining the application, have regard to the transcript of any proceedings against the person for the offence.

(2) Where an application is made for a forfeiture order or a confiscation order to the Court before which the person was convicted, and the Court has not, when the application is made, passed sentence on the person for the offence, the Court may, if it is satisfied that it is reasonable to do so in all the circumstances, defer passing sentence until it has determined the application for the order.

9. Application for forfeiture order on abscondence

(1) Where a person absconds in connection with a scheduled offence committed after the coming into force of this Act, the Director of Public Prosecutions may apply to the Court for a forfeiture order under section 17 in respect of any tainted property.

(2) For the purposes of this section, a person shall be deemed to have absconded in connection with a scheduled offence if

(a) an information has been laid alleging the commission of the offence by the person,

(b) a warrant for the arrest of the person has been issued in relation to that information, and

(c) reasonable attempts to arrest the person pursuant to the warrant have been unsuccessful during the period of six months commencing on the day the warrant was issued,

and the person shall be deemed to have so absconded on the last day of that period of six months.

(3) Where the Director of Public Prosecutions applies under this section for a forfeiture order against any tainted property the Court shall, before hearing the application

(i) require notice of the application to be given to any person who, in the opinion of the Court, appears to have an interest in the property;

(ii) direct notice of the application to be published in the Official Gazette and in a newspaper published and circulating in Barbados containing such particulars and for so long as the Court may require.

Forfeiture Orders

10. Forfeiture Order on conviction

(1) Where the Director of Public Prosecutions applies to the Court for a forfeiture order against property in respect of a person's conviction for a scheduled offence and the Court is satisfied that the property is tainted property in respect of the offence, the Court may order that the property or such of the property as is specified by the Court in the order be forfeited to the Crown.

(2) In determining whether property is tainted property the Court may infer

(a) that the property was used in, or in connection with the Commission of the offence, where the evidence establishes that the property was in the person's possession at the lime of, or immediately after, the commission of the offence for which the person was convicted;

(b) that the property was derived, obtained or realised as a result of the commission by the person of the scheduled offence for which the person was convicted, where the evidence establishes that property, and in particular money, was found in the person's possession or under his control in a building, vehicle, receptacle or place during the course of investigations conducted by the police before or after the arrest and charge of the person for the scheduled offence for which the person was convicted;

(c) that the value of the increase represents property which was derived, obtained or realised by the person directly or indirectly from the commission of the scheduled offence for which the person was convicted, where the evidence establishes that the value, after the commission of the scheduled offence, of all ascertainable property of a person convicted of the scheduled offence exceeds the value of all ascertainable property of that person prior to the commission of that offence, and the Court is satisfied that the income of that person from sources unrelated to criminal activity of that person cannot reasonably account for the increase in value.

(3) Where the Court orders that property, other than money, be forfeited to the Crown, the Court shall specify in the order the amount that it considers to be the value of the property at the time when the order is made.

11. Effect of forfeiture order

(1) Subject to subsection (2), where the Court makes a forfeiture order against any property, the property vests absolutely in the Crown by virtue of the order.

(2) Where property directed by a forfeiture order to be forfeited is registrable property

(a) the property vests in the Crown in equity but does not vests in the Crown at law until the applicable registration requirements have been complied with;

(b) the Crown is entitled to be registered as owner of the property;

(c) the Attorney-General has power on behalf of the Crown to do, or authorised the doing of, anything necessary or convenient to obtain the registration of the Crown as owner, including the execution of any instrument required to be executed by a person transferring an interest in property of that kind.

(3) Where the Court makes a forfeiture order against property

(a) the property shall not, except with the leave of the Court and in accordance with any directions of the Court be disposed of, or otherwise dealt with, by or on behalf of the Crown, before the relevant appeal date; and

(b) if, after the relevant appeal date, the order has not been discharged, the property may be disposed of and the proceeds applied or otherwise dealt with in accordance with the direction of the Attorney-General.

(4) Without limiting the generality of subsection (3)(b) the directions that may be given pursuant to that subsection include a direction that property is to be disposed of in accordance with the provisions of any enactment specified in the direction.

12. Voidable transfers

The Court may

(a) before making a forfeiture order; and

(b) in the case of property in respect of which a restraining order was made, where the order was served in accordance with section 33,

set aside any conveyance or transfer of the property that occurred after the seizure of the property or the service of the restraining order, unless the conveyance or transfer was made for valuable consideration to a person acting in good faith and without notice.

13. Protection of third parties

(1) Where an application is made for a forfeiture order against property, a person who claims an interest in the property may apply to the Court, before the forfeiture order is made, for an order under subsection (2).

(2) If a person applies to the Court for an order under this section in respect of his interest in property and the Court is satisfied on a balance of probabilities

(a) that he was not in any way involved in the commission of the offence; and

(b) where he acquired the interest during or after the commission of the offence, that he acquired the interest

(i) for sufficient consideration; and

(ii) without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was, at the time he acquired it, property that was tainted property,

the Court shall make an order declaring the nature, extent and value (as at the time the order is made) of his interest.

14. Discharge of forfeiture order on appeal and quashing of conviction

(1) Where the Court makes a forfeiture order against property in reliance on a person's conviction of a scheduled offence and the conviction is subsequently quashed, the quashing of the conviction discharges the order.

(2) Where a forfeiture order against property is discharged as provided for in subsection (1) or by the Court hearing an appeal against the making of the order, any person who claims to have an interest in the property immediately before the making of the forfeiture order may apply to the Public Trustee in writing for the transfer of the interest to the person.

(3) On receipt of an application under subsection (2) the Public Trustee shall

(a) if the interest is vested in the Crown, give directions that the property or pan thereof to which the interest of the applicant relates be transferred to the person; or

(b) in any other case, direct that there be payable to the person an amount equal to the value of the interest as at the time the order is made

15. Payment instead of forfeiture order

Where the Court is satisfied that a forfeiture order should be made in respect of the property of a person convicted of a scheduled offence but that the property or any part thereof or interest therein cannot be made subject to such an order and, in particular

(a) cannot, on the exercise of due diligence, be located;

(b) has been transferred to a third party in circumstances which do not give rise to a reasonable inference that the title or interest was transferred for the purpose of avoiding the forfeiture of the property;

(c) is located outside Barbados;

(d) has been substantially diminished in value or rendered worthless; or

(e) has been commingled with other property that cannot be divided without difficulty,

the Court may, instead of ordering the property or part thereof or interest therein to be forfeited, order the person to pay to the Crown an amount equal to the value of the property, part or interest.

16. Application of procedure for enforcing fines

(1) Where the Court orders a person to pay an amount under section 15 that amount shall be treated as if it were a fine imposed upon him in respect of a conviction of a scheduled offence and the Court shall

(a) [Cap. 1]

notwithstanding anything contained in section 22 of the Interpretation Act , impose, in default of the payment of that amount, a term of imprisonment

(i) of 18 months, where the amount does not exceed $10,000;

(ii) of 2 years, where the amount exceeds $10,000 but does not exceed $20,000;

(iii) of 3 years, where the amount exceeds $20,000 but does not exceed $50,000;

(iv) of 5 years, where the amount exceeds $50,000 but does not exceed $ 100,000;

(v) of 7 years, where the amount exceeds $100,000 but does not exceed $200,000;

(vi) of 10 years, where the amount exceeds $200,000 but does not exceed $1,000,000;

(vii) of 15 years, where the amount exceeds $1,000,000;

(b) direct that the term of imprisonment imposed pursuant to paragraph (a), in the case of conviction for an offence against the Drug Abuse (Prevention and Control) Act, be served consecutively to any other form of imprisonment imposed on the person, or that the person is then serving;

(c) [Cap. 168]

direct that the Prisons Act and any regulations made thereunder regarding the remission of sentences of prisoners serving a term of imprisonment shall not apply in relation to a term of imprisonment imposed on a person pursuant to paragraph (a) in the case of a conviction for an offence against the Drug Abuse (Prevention and Control) Act.

17. Forfeiture order on abscondence

(1) Subject to section 9(3), where an application is made to the Court under section 9(1) for a forfeiture order against any tainted property in consequence of a person's abscondence in connection with a scheduled offence and the Court is satisfied that

(a) any property is tainted property in respect of the offence;

(b) proceedings in respect of a scheduled offence committed in relation to that property were commenced; and

(c) the accused charged with the offence referred to in paragraph (b) has absconded

the Court may order that the property or such of the property as is specified by the Court in the order be forfeited to the Crown.

(2) The provisions of sections 10(2), (3), (4) and (5), 11, 12 and 13 shall apply with such modifications as are necessary to give effect to this section.

Confiscation Orders

18. Confiscation order on conviction

(1) Subject to this section, where the Director of Public Prosecutions applies to the Court for a confiscation order against a person in respect of that person's conviction of a scheduled offence the Court shall, if it is satisfied that the person has benefited from that offence order him to pay to the Crown an amount equal to the value of his benefits from the offence or such lesser amount as the Court certifies in accordance with section 21 to be the amount that might be realised at the time the confiscation order is made.

(2) The Court shall assess the value of the benefits derived by a person from the commission of an offence in accordance with sections 19 to 22

(3) The Court shall not make a confiscation order under this section

(a) until the period allowed by the rules of court for the lodging of an appeal against conviction has expired without such an appeal having been lodged; or

(b) where an appeal against convictions has been lodged, until the peal lapses in accordance with the rules of court or is finally determined, whichever is the later date.

19. Rules for determining benefit and assessing value

(1) Where a person obtains property as the result of, or in connection with the commission of, a scheduled offence, his benefit is the value of the property so obtained.

(2) Where a person derives an advantage as a result of or, in connection with the commission of a scheduled offence, his advantage shall be deemed to be a sum of money equal to the value of the advantage so derived.

(3) The Court, in determining whether a person has benefited from the commission of a scheduled offence or from that offence taken together with other scheduled offences and, if he has, in assessing the value of the benefit, shall unless the contrary is proved, deem

(a) all property appearing to the Court to be held by the person on the day on which the application is made; and

(b) all property appearing to the Court to be held by the person at any time

(i) within the period between the day the scheduled offence, or the earliest offence, was committed and the day on which the application is made; or

(ii) within the period of 6 years immediately before the day on which the application is made; whichever is longer

to be property that came into the possession or under the control of the person by reason of the commission of that scheduled offence or those scheduled offences for which the person was convicted;

(c) any expenditure by the person since the beginning of that period to be expenditure met out of payments received by him as a result of, or in connection with, the commission of that scheduled offence or those scheduled offences; and

(d) any property received or deemed to have been received by the person at any time as a result of, or in connection with, the commission by him.of that scheduled offence, or those scheduled offences as property received by him free of any interests therein

(4) Where a confiscation order has previously been made against a person, in assessing the value of any benefit derived by him from the commission of the scheduled offence, the Court shall leave out of account any of his benefits that are shown to the Court to have been taken into account in determining the amount to be recovered under that order.

(5) If evidence is given at the bearing of the application that the value of the person's property at any time after the commission of the scheduled offence exceeded the value of the person's property before the commission of the offence, then the Court shall, subject to subsection (6), treat the value of the benefits as being not less than the amount of the excess.

(6) If, after evidence of the kind referred to in subsection (5) is given, the person satisfies the Court that the whole or part of the excess was due to causes unrelated to the commission of the scheduled offence, subsection (5) does not apply to the excess or, as the case may be, that part.

20. Statements relating to benefits from commission of scheduled offences

(1) Where

(a) a person has been convicted of a scheduled offence and the Director of Public Prosecutions tenders to the Court a statement as to any matters relevant

(i) to determining whether the person has benefited from the offence or from any other scheduled offence of which he is convicted in the same proceedings or which is taken into account in determining his sentence, or

(ii) to an assessment of the value of the person's benefit from the offence or any other scheduled offence of which he is so convicted in the same proceedings or which is so taken into account, and

(b) the person accepts to any extent an allegation in the statement,

the Court may, for the purposes of so determining or making that assessment, treat his acceptance as conclusive of the matters to which it relates.

(2) Where

(a) a statement is tendered under subsection (1) (a), and

(b) the Court is satisfied that a copy of that statement has been served on the person

the Court may require the person to indicate to what extent he accepts each allegation in the statement and, so far as he does not accept any such allegation, to indicate any matters he proposes to rely on.

(3) Where the person fails in any respect to comply with a requirement under subsection (2), he may be treated for the purposes of this section as having accepted every allegation in the statement, other than

(a) an allegation in respect of which he has complied with the requirement; and

(b) an allegation that he has benefited from the scheduled offence or that any property or advantage was obtained by him as a result of, or in connection with the commission of the offence.

(4) Where

(a) the person tenders to the Court a statement as to any matters relevant to determining the amount that might be realised at the´ time the confiscation order is made; and

(b) the Director of Public Prosecutions accepts to any extent any allegation in the statement,

the Court may, for the purposes of that determination, treat the acceptance of the Director of Public Prosecutions as conclusive of the matters to which it relates.

(5) An allegation may be accepted or a matter indicated for the purposes of this section either-

(a) orally before the Court; or

(b) in writing in accordance with rules of court.

21. Amount to be recovered under confiscation order

(1) Subject to subsection (2), the amount to be recovered in the person's case under a confiscation order shall be the amount which the Court assesses to be the value of the person's benefit from the scheduled offence or if more than one, all the offences in respect of which the order may be made.

(2) Where the Court is satisfied as to any matter relevant for determining the amount which might be realised at the time the confiscation order is made (whether by an acceptance under section 20 or otherwise) the Court may issue a certificate giving the Court's opinion as to the matters concerned, and shall do so if satisfied that the amount that might be realised at the time the confiscation order is made is less than the amount that the Court assesses to be the value of the person's benefit from the offence, or if more than one, all the offences in respect of which the confiscation order may be made.

22. Variation of confiscation orders

(1) Where

(a) the Court makes a confiscation order against a person in relation to a scheduled offence;

(b) in calculating the amount of the confiscation order, the Court took into account a forfeiture of the property or a proposed forfeiture of the property or a proposed forfeiture order in respect of property; and

(c) an appeal against the forfeiture or forfeiture order is allowed or the proceedings for the proposed forfeiture order terminate without the proposed forfeiture order being made

the Director of Public Prosecutions may apply to the Court for a variation of the confiscation order to increase the amount of the order by the value of the property not so forfeited and the Court may, if it considers it appropriate to do so, vary the order accordingly.

(2) Where

(a) the Court makes a confiscation order against a person in relation to a scheduled offence;

(b) in calculating the amount of the confiscation order, the Court took into account, in accordance with section 4(5) and (6) an amount of tax paid by the person; and

(c) an amount is repaid or refunded to the person in respect of that tax,

the Director of Public Prosecutions may apply to the Court for a variation of the confiscation order to increase the order by the amount repaid or refunded and the Court may, if it considers it appropriate to do so, vary the order accordingly.

23.

(1) In assessing the value of benefits derived by a person from the commission of a scheduled offence, the Court may treat as property of the person any property that, in the opinion of the Court, is subject to the effective control of the person whether or not he has

(a) any legal or equitable interest in the property; or

(b) any right, power or privilege in connection with the property.

24. Enforcement of confiscation orders

Part III PROVISIONS FOR FACILITATING POLICE INVESTIGATIONS AND PRESERVING PROPERTY LIABLE TO FORFEITURE AND CONFISCATION ORDERS

Powers of Search and Seizure

25. Warrant to search land etc. for tainted property

(1) Where a police officer has reasonable grounds for suspecting that there is, or there may be within the next following 72 hours, tainted property upon any land or upon or in any premises the police officer may lay before a magistrate an information on oath setting out those grounds and apply for the issue of a warrant to search the land or premises for tainted property.

(2) Where an application is made under subsection (1) for a search warrant, the magistrate may, subject to section 26, issue a warrant authorising a police officer (whether named in the warrant or not) with such assistance and by such force as is necessary and reasonable

(a) to enter upon the land or upon or into the premises; Warrants to search land etc. for tainted property

(b) to search the land or premises for tainted property; and Restrictions on issue of search warrants

(c) to seize property found in the course of the search that the police officer believes on reasonable grounds, to be tainted property.

26. Restrictions on issue of search warrants

A magistrate shall not issue a warrant under section 25 unless

(a) the informant or some other person has given to the magistrate, either on oath or by affidavit, any further information that the magistrate may require concerning the grounds on which the issue of the warrant is sought;

(b) the magistrate is satisfied that there are reasonable grounds for issuing the warrant.

27. Maters to be included in search warrant

A warrant issued under section 25 shall include

(a) a statement of the purpose for which the warrant is issued, and a reference to the nature of the scheduled offence;

(b) a description of the kind of property to be seized;

(c) a time, not being later than twenty-eight days, upon which the warrant ceases to have effect; and

(d) a statement as to whether entry is authorised to be made at any time of the day or night, or during specified hours of the day or night.

28. Police may seize other tanted property

Where in the course of a search under a warrant issued pursuant to section 25 for tainted property in relation to a scheduled offence, a police officer finds

(a) property that he believes, on reasonable grounds, be

(i) tainted property in relation to the offence, although not of a kind specified in the warrant, or

(ii) tainted property in relation to another scheduled offence, or

29. Record of property seized

(1) A police officer who executes a warrant issued under this Part shall

(a) detain the property seized, taking reasonable care to ensure that the property is preserved so that it may be dealt with in accordance with the law;

(b) as soon as practicable after the execution of the warrant, but within a period of 48 hours thereafter, prepare a written report, identifying the property seized and the location where the property is being detained and forward a copy of the report to the clerk of the court in the magisterial district where the property is being detained.

(2) A magistrate shall, on application, provide a copy of the report

(a) to the person from whom the property was seized; and

(b) to any other person who appears to the magistrate to have an interest in the property.

(3) A request under subsection (2) by a person, other than the person from whom the property was seized, shall be in writing and supported by affidavit sworn to by the person making the request.

30. Return of property seized

(1) Where property has been seized under section 28, otherwise than because it may afford evidence of the commission of a scheduled offence, any person who claims an interest in the property may apply to the Court for an order that the property be returned to him.

(2) Where a person makes an application under subsection (1) and the Court is satisfied that

(a) the person is entitled to possession of the property;

(b) the property is not tainted property in relation to the scheduled offence; and

(c) the person in respect of whose conviction, charging or proposed charging the seizure of the property was made has no interest in the property,

the Court shall order the Commissioner to return the property to the person, and the Commissioner shall arrange for the property to be returned.

(5) Where

(a) property has been seized under section 28, otherwise than because it may afford evidence as to the commission of a scheduled offence,

(b) but for this subsection, the Commissioner would be required to arrange for the property to be returned to a person as soon as practicable after the end of a particular period, and

(c) before the end of that period, a restraining order is made in relation to the property,

the Commissioner shall

(d) arrange for the property to be given to the Public Trustee in accordance with the restraining order, if the restraining order directs the Public Trustee to take custody and control of the property;

(e) arrange for the property to be kept until it is dealt with in accordance with any other provision of this Act, if the Court that made the restraining order has made an order under subsection (6) in relation to the property.

(9) Where

(a) property has been seized under section 28, and

(b) while the property is in the possession of the Commissioner a forfeiture order is made in respect of the property,

the Commissioner shall deal with the property as directed by the order.

Restraining Orders

31. Application for restraining order

(1) Where a person, (in this section and section 32 called "the defendant")

(a) has been convicted of a scheduled offence, or

(b) has been charged with a scheduled offence

the Director of Public Prosecutions may apply to the Court for a restraining order against any realisable property held by the defendant or specified realisable property held by a person other than the defendant.

(2) An application for a restraining order may be made ex parte and shall be in writing and he accompanied by an affidavit stating

(a) where the defendant has been convicted of a scheduled offence, the scheduled offence for which the defendant was convicted, the date of the conviction, the Court before which the conviction was obtained and whether an appeal has been lodged against the conviction;

(b) where the defendant has not been convicted of a scheduled offence, the scheduled offence for which he is charged and the grounds for believing that the defendant committed the offence;

(c) a description of the property in respect of which the restraining order is sought;

(d) the name and address of the person who is believed to be in possession of the property;

(e) the grounds for the belief that the property is tainted property in relation to the offence;

(f) the grounds for the belief that the defendant derived a benefit directly or indirectly from the commission of the offence;

(g) where the application seeks a restraining order against property of a person, other than the defendant, the grounds for the belief that the property is tainted property in relation to the offence and is subject to the effective control of the defendant;

(h) the grounds for the belief that a forfeiture order or a confiscation order may be or is likely to be made under this Act in respect of the property.

32. Restraining orders

(1) Subject to this section, where the Director of Public Prosecutions applies to the Court for a restraining order against property and the Court is satisfied that

(a) the defendant has been convicted of a scheduled offence, or has been charged with a scheduled offence;

(b) there are reasonable grounds for believing that the defendant committed the offence, where the defendant has not been convicted of a scheduled offence;

(c) there is reasonable cause to believe that the property is tainted property in relation to an offence or that the defendant derived a benefit directly or indirectly from the commission of the offence;

(d) there are reasonable grounds for believing that the property is tainted property in relation to an offence and that the property is subject to the effective control of the defendant, where the application seeks a restraining order against property of a person other than the defendant; and

(e) there are reasonable grounds for believing that a forfeiture order or a confiscation order is likely to be made under this Act in respect of the property,

the Court may make an order

(f) prohibiting the defendant or any person from disposing of, or otherwise dealing with, the property or such part thereof or interest therein as is specified in the order, except in such manner as may be specified in the order, and

(g) at the request of the Director of Public Prosecutions, where the Court is satisfied that the circumstances so require

(i) directing the Public Trustee or such other person as the Court may appoint to take custody of the property or such part thereof as is specified in the order and to manage or otherwise deal with all or any part of the property in accordance with the directions of the Court; and

(ii) any person having possession of the property to give possession thereof to the Public Trustee or to the person appointed under sub-paragraph (i) to take custody and control of the property.

(2) An order under subsection (1) may be made subject to such conditions as the Court thinks fit and, without limiting the generality of this, may make provision for meeting, out of the property or a specified part of the property, all or any of the following

(a) the person's reasonable living expenses (including the reasonable living expenses of the person's dependants (if any) and reasonable business expenses;

(b) the person's reasonable expenses in defending the criminal charge and any proceedings under this Act.

33. Undertakings by Crown

(1) Before making an order under section 32, the Court may require the Crown to give such undertakings as the Court considers appropriate with respect to the payment of damages or costs, or both, in relation to the making and execution of the order.

(2) For the purposes of this section, the Director of Public Prosecutions may, after consultation with the Attorney-General, on behalf of the Crown, give to the Court such undertakings with respect to the payment of damages or costs, or both, as are required by the Court.

34. Notice of application for restraining order

Before making a restraining order, the Court may require notice to be given to, and may hear, any person who, in the opinion of the Court, appears to have an interest in the property, unless the Court is of the opinion that giving such notice before making the order would result in the disappearance, dissipation or reduction in value of the property.

35. Service of restraining order

A copy of a restraining order shall be served on a person affected by the order in such manner as the Court directs or as may be prescribed by rules of court.

36. Registration of restraining order

(1) [Cap. 210]

A copy of a restraining order which affects lands, tenements or hereditaments in Barbados shall be registered with the Registrar of the Supreme Court in accordance with the Registration of Judgments Act, and with the Registrar of Titles.

(2) [Cap. 229]

A restraining order is of no effect with respect to registered land unless it is registered as a charge under the Land Registration Act.

(3) [Cap. 210]

[Cap. 229]

Where particulars of a restraining order are recorded or registered, as the case may be, in accordance with the Registration of Judgments Act or the Land Registration Act, a person who subsequently deals with the property shall, for the purposes of section 37, be deemed to have notice of the order at the time of the dealing.

37. Contravention of restraining order

(1) A person who knowingly contravenes a restraining order by disposing of, or otherwise dealing with, property that is subject to the restraining order commits an indictable offence punishable upon conviction by

(a) a fine of $100,000 or imprisonment for a period of 5 years or both, in the case of a natural person; or

(b) a fine of $500,000, in the case of a body corporate.

38. Duration of restraining order

A restraining order remains in force until

(a) it is revoked or varied under section 39;

(b) it ceases to be in force under section 40; or

(c) a forfeiture order or a confiscation order, as the case may be, is made in respect of property which is the subject of the order; or

(d) the property which is the subject of the order becomes forfeited to the Crown under any other enactment.

Review of Search Warrants and restraining Orders

39. Review of search warrants and restraining orders

(1) person who has an interest in property that was seized under a warrant issued pursuant to section 25 or in respect of which a restraining order was made may, at any time, apply to the Court

(a) for an order under subsection (4); or

(b) for permission to examine the property.

(2) An application under subsection (1) shall not be heard by the Court unless the applicant has given to the Director of Public Prosecutions at least three days clear notice in writing of the application.

(6) On an application made to the Court under subsection (1)(b), the Court may order that the applicant be permitted to examine property subject to such terms as appear to the Court to be necessary or desirable to ensure that the property is safeguarded and preserved for the purpose for which it may subsequently be required.

40. Automatic expiry of restraining orders

(1) Subject to this section, where a restraining order has been made in relation to property, the restraining order shall not continue in force for a period of more than 6 months after the time of the making of the order unless before the expiration of that period, the Director of Public Prosecutions applies to the Court that made the order for an extension of the period of operation of the order.

(2) Where the Director of Public Prosecutions applies under subsection (1) for an extension of the period of operation of a restraining order and the Court is satisfied

(a) that a forfeiture order may be made in respect of the property or part thereof, or

(b) that a confiscation order may be made against a person in relation to property which is the subject of a restraining order,

the Court may extend for a specific period the period of operation of the restraining order and make such other order as it considers appropriate in relation to the operation of the restraining order.

41. Disposal of property seized or dealt with

Subject to this section, where the Court is satisfied that property will no longer be required for the purposes of section 10, 17 or 18 of this Act or any other enactment providing for forfeiture or for the purpose of any investigation or as evidence in any proceeding, the Court shall, on the application of the Director of Public Prosecutions or any person having an interest in the property or on the Court's own motion,

(a) where a restraining order has been made in relation to any property, revoke the order;

(b) where a recognizance has been entered into pursuant to section 39, cancel the recognizance; and

(c) where property has been seized under a warrant issued pursuant to section 25 or where the property is under the control of a person appointed pursuant to section 32(1)(g),

(i) if possession of it by the person from whom it was taken is lawful, order that it be returned to that person;

(ii) if possession of it by the person from whom it was taken is unlawful and the lawful owner or person who is lawfully entitled to its possession is known, order that it be returned to the lawful owner or the person who is lawfully entitled to its possession; or

(iii) if possession of it by the person from whom it was taken is unlawful and the lawful owner or person who is lawfully entitled to its possession is not known, may order that it be forfeited to the Crown, to be disposed of or otherwise dealt with in accordance with the law.

Production Orders, and other Information gathering powers

42. Production and Inspection orders

(1) Where

(a) a person has been convicted of a scheduled offence and a police officer has reasonable grounds for suspecting that a person has possession or control of

(i) a document relevant to identifying, locating or quantifying property of the person who committed the offence or to identifying or locating a document necessary for the transfer of property of the person who committed the offence,

(ii) a document relevant to identifying, locating or quantifying tainted property in relation to the offence or to identifying or locating a document necessary for the transfer of tainted property in relation to the offence, or

(b) a police officer has reasonable grounds for suspecting that a person has committed a scheduled offence and that a person has possession or control of any document referred to in paragraph (a), the police officer may apply to a Judge in Chambers in accordance with subsection (2) for an order under subsection (5) against the person suspected of having possession or control of a document of the kind referred to in paragraph (a) or against the person referred to in paragraph (b).

(2) An application under subsection (1) shall be made ex parte and shall be in writing and be accompanied by an affidavit.

(3) Where a police officer applies for an order under subsection (5) in respect of a scheduled offence and includes in the affidavit a statement to the effect that the officer has reasonable grounds to believe that

(a) the person who was convicted of the offence or who is believed to have committed the offence, derived a benefit directly or indirectly from the commission of the offence; and

(b) property specified in the affidavit is subject to the effective control of the person referred to in paragraph (a),

the Judge may treat any document relevant to identifying, locating or quantifying that property as a document in respect of which an order may be issued under subsection (5).

(4) In determining whether to treat a document relevant to identifying, locating or quantifying property referred to in subsection (3) as a document in respect of which an order may be issued under subsection (5), the Judge may have regard to the matters referred to in section 23(2).

43. Scope of police powers under production order etc.

(1) Where a document is produced to a police officer pursuant to an order under section 42, the police officer may

(a) inspect the document;

(b) take extracts from the document;

(c) make copies of the document; or

(d) retain the document if, and for so long as, retention of the document is reasonably necessary for the purposes of this Act.

(2) Where a document is made available to a police officer for inspection pursuant to an order under section 42, the police officer may

(a) inspect the document;

(b) take extracts from the document; or

(c) make copies of the document.

(3) Where a police officer retains a document pursuant to an order under section 42, the police officer shall

(a) give the person to whom the order was addressed a copy of the document certified by the police officer in writing to be a true copy of the document retained; and

(b) unless the person has received a copy of the document under paragraph (a), permit the person to

(i) inspect the document;

(ii) take extracts from the document; or

(iii) make copies of the document.

44. Evidential value of information

(1) Where a person produces or makes available a document pursuant to an order under section 42 the production or making available of the document, or an information, document or thing obtained as a direct or indirect consequence of the production or making available of the document, is not admissable against the person in any criminal proceedings except a proceeding for an offence against section 46.

(2) For the purposes of subsection (1), proceedings on an application for a restraining order, a forfeiture order or a confiscation order are not criminal proceedings.

(3) A person is not excused from producing or making available a document when required to do so by an order under section 42 on the grounds that

(a) the production or making available of the document might tend to incriminate the person or make the person liable to a penalty; or

(b) the production or making available of the document would be in breach of an obligation, whether imposed by enactment or otherwise, of the person not to disclose the existence or contents of the document.

45. Variation of production order

Where a Judge makes a production order requiring a person to produce a document to a police officer, the person may apply to the Judge or another Judge for a variation of the order and if the Judge hearing the application is satisfied that the document is essential to the business activities of the person, the Judge may vary the production order so that it requires the person to make the document available to a police officer for inspection.

46. Failure to comply with production order

(1) Where a person is required by a production order to produce a document to a police officer or make a document available to a police officer for inspection, the person commits an offence against this subsection if the person,

(a) contravenes the order without reasonable excuse; or

(b) in purported compliance with the order produces or makes available a document known to the person to be false or misleading in a material particular without

(i) indicating to the police officer to whom the document is produced or made available that the document is false or misleading and the respect in which the document is false or misleading; and

(ii) providing correct information to the police officer if the person is in possession of, or can reasonably acquire, the correct information.

(2) An offence against subsection (1) is punishable upon summary conviction by

(a) a fine of $10,000 or imprisonment for a period of 2 years, or both, where the offender is a natural person;

(b) a fine of $50,000, where the offender is a body corporate.

47. Search warrant to facilitate investigations

(1) Where

(a) a person is convicted of a scheduled offence and a police officer has reasonable grounds for suspecting that there is in any premises any document of the type specified in section 42; or

(b) a police officer has reasonable grounds for suspecting that a person has committed a scheduled offence and there is in any premises any document of the type specified in section 42,

the police officer may apply to a Judge for a warrant under subsection (2) to search the premises.

(2) Where an application is made under subsection (1) for a search warrant, the Judge may, subject to subsections (3) and (4), issue a warrant authorising a police officer (whether or not named in the warrant) with such assistance and by such force as is necessary and reasonable

(a) to enter the premises;

(b) to search the premises for documents of the kind referred to in subsection (1); and

(c) to seize and retain any document found in the course of the search that in the opinion of the police officer is likely to be of substantial value (whether by itself or together with other documents) to the investigation in respect of which the application is made.

(3) A Judge shall not issue a search warrant under subsection (2) unless the Judge is satisfied that

(a) a production order has been made in respect of the document and has not been complied with;

(b) a production order in respect of the document would be unlikely to be effective because there are reasonable grounds to suspect that such a production order would not be complied with;

(c) the document involved cannot be identified or described with sufficient particularity to enable a production order to be made in respect of the document;

(d) it is not practicable to communicate with any person having the power to grant entry to the premises; or

(e) entry to the premises will not be granted unless a warrant is produced; or

(f) the investigation for the purposes of which the application is made might be seriously prejudiced unless the police officer is granted immediate access to the document without notice of any person.

Monitoring Orders

48. Monitoring orders

(1) A police officer may apply to a Judge in Chambers in accordance with subsection (2) for an order (in this section called a "monitoring order") directing a financial institution to give information to a police officer.

(10) A reference in this section to a transaction conducted through an account includes a reference to

(a) the making of a fixed term deposit;

(b) in relation to a fixed term deposit, the transfer of the amount deposited or any part thereof, at the end of the term; and

(c) the opening, existence or use of a deposit box held by the institution.

49. Monitoring orders not to be disclosed

(1) A financial institution that is, or has been, subject to a monitoring order shall not disclose the existence or the operation of the order to any person except

(a) an officer or agent of the institution, for the purpose of ensuring that the order is complied with; or

(b) an attorney-at-law, for the purpose of obtaining legal advice or representation in relation to the order; or

(c) the Commissioner or a police officer authorised in writing by the Commissioner to receive the information.

(2) A person referred to in subsection (1) (a), (b) or (c) to whom a disclosure of the existence or operation of a monitoring order has been made, whether in accordance with subsection (1) or a previous application of this subsection or otherwise, shall not

(a) disclose the existence or operation of the order except to another person referred to in the said subsection (1) for the purposes of

(i) the performance of that person's duties, if the disclosure is made by the Commissioner or a police officer,

(ii) ensuring that the order is complied with or obtaining legal advice or representation in relation to the order, if the disclosure is made by an officer or agent of the institution, or

(iii) giving legal advice or making representations in relation to the order, if the disclosure is made by an attorney-at-law; or

(b) make a record of, or disclose, the existence of the operation of the order in any circumstances, even when he ceases to be a person referred to in subsection (1).

(3) Nothing in subsection (2) prevents the disclosure by a person referred to in subsection (1) (c) of the existence or operation of a monitoring order

(a) for the purposes of, or in connection with, legal proceedings; or

(b) in the course of proceedings before a court.

(4) A person referred to in subsection (1) (b) shall not be required to disclose to any court the existence or operation of a monitoring order.

Obligations of Financial Institutions

50. Retention of records of financial institutions

(1) Subject to this section, and to section 51, a financial institution shall retain, in its original form for the minimum retention period applicable to the document,

(a) a document that relates to a financial transaction carried out by the institution in its capacity as a financial institution and, without limiting the generality of this, includes a document that relates to

(i) the opening or closing by a person of an account with the institution;

(ii) the operation by a person of an account with the institution;

(iii) the opening or use by a person of a deposit box held by the institution;

(iv) the telegraphic or electronic transfer of funds by the institution on behalf of a person to another person;

(v) the transmission of funds between Barbados and a foreign country or between foreign countries on behalf of a person; or

(vi) an application by a person for a loan from the institution, where a loan is made to the person pursuant to the application; and

(b) a document that relates to a financial transaction carried out by the institution in its capacity as a financial institution that is given to the institution by or on behalf of the person, whether or not the document is signed by or on behalf of the person.

(2) For the purposes of this section, the expression "minimum retention period" .means,

(a) where the document relates to the opening of an account with the institution, the period of 7 years after the day on which the account is closed;

(b) where the document relates to the opening by a person of a deposit box held by the institution, the period of 7 years after the day on which the deposit box ceases to be used by the person; and

(c) in any other case, the period of 7 years after the day on which the transaction takes place.

51. Register of original documents

(1) Where a financial institution is required by law to release the original of a document before the end of the minimum retention period applicable to the document, the institution shall retain a complete copy of the document until the period has ended or the original document is returned, whichever occurs first.

(2) A financial institution shall maintain a register of documents released under subsection (1).

(3) A financial institution that contravenes subsection (1) or (2) commits an offence against this section and is liable, on summary conviction, to a fine of $10,000.

52. Communication of information to law enforcement authorities

(1) Where a financial institution has information about an account held with the institution and the institution has reasonable grounds for believing that

(a) the information may be relevant to an investigation of, or the prosecution of, a person for an offence; or

(b) the information would otherwise be of assistance in the enforcement of this Act or any regulations made thereunder,

the institution may give the information to a police officer or the Director of Public Prosecutions.

(2) An action, suit or proceedings does not lie against

(a) a financial institution, or

(b) an officer, employee or agent of the institution acting in the course of the person's employment or agency

in relation to an action taken by the institution or person pursuant to subsection (1).

53. Protection for financial institutions

Where a financial institution, or a person who is an officer, employee or agent of the institution, gives the information pursuant to section 52(1) as soon as practicable after forming the belief referred to in that subsection, the institution shall be taken for the purposes of sections 61 and 62 not to have been in possession of that information at any time.

54. Interpretation

For the purposes of sections 48 to 53, "financial institution'' means

(a) a bank licensed under the Banks Act; ^{Cap. 322}

(b) a building society registered under the Building Societies Act; ^{Cap. 377}

(c) a credit union registered under the Cooperative Societies Act. ^{Cap. 378}

(d) a trust company, finance company or deposit taking company, recognised by the Minister responsible for Finance as such.

Order for Disclosure of Income Tax Information

55. Application for disclosure of income tax information

(1) The Director of Public Prosecutions may for the purposes of an investigation in relation, to a scheduled offence apply to a Judge in accordance with subsection (2) for an order for disclosure of information under section 56.

(2) An application under subsection (1) shall be made ex parte and shall be in writing and be accompanied by an affidavit sworn on the information and belief of the Director of Public Prosecutions or a person specially designated by the Director of Public Prosecutions for that purpose deposing to the following matters, namely

(a) the scheduled offence under investigation;

(b) the person in relation to whom the information or documents referred to in paragraph (c) are required;

(c) the type of information or book, record writing, return or other document in the possession of the Commissioner of Inland Revenue to which access is sought or that is proposed to be examined or communicated; and

(d) the facts relied on to justify the belief, on reasonable grounds, that the person referred to in paragraph (b) has committed or benefited from the commission of an offence referred to in paragraph (a) and that the information or documents referred to in paragraph (c) are likely to be of substantial value, whether alone or together with other material, to the investigation for the purpose of which the application is made.

56. Order for disclosure

(1) Notwithstanding any provision in any other law, where the Judge to whom an application under section 55 is made is satisfied

(a) of the matters referred to in paragraph (d) of subsection (2) of section 55; and

(b) that there are reasonable grounds for believing that it is in the public interest to allow access to the information or documents to which the application relates, having regard to the benefit likely to accrue to the investigation if the access is obtained,

the Judge may, subject to such conditions as the Judge considers advisable in the public interest, order the Commissioner of Inland Revenue

(c) to allow the Director of Public Prosecutions or any other person named in the order access to all such information and documents and to examine them; or

(d) where the Judge considers it necessary in the circumstances to produce all such information and documents to a person referred to in paragraph (c) above and allow such person to remove the information and documents from the possession of that person,

within such period as the Judge may specify after the expiration of 7 days following the service of the order on the Commissioner of Inland Revenue pursuant to subsection (2).

57. Ojection to disclosure of information

(1) The Commissioner of Inland Revenue may object to the disclosure of any information or document in respect of which an order under section 56 has been made by certifying in writing that the information or document should not be disclosed on the grounds that

(a) the Commissioner of Inland Revenue is prohibited from disclosing the information or document by any bilateral or international treaty, convention or other agreement respecting taxation to which Barbados is a signatory;

(b) a privilege is attached by law to the information or document;

(c) the information or document has been placed in a sealed package pursuant to law or an order of a court of competent jurisdiction;

(d) disclosure of the information or document would not for any other reason be in the public interest.

(2) Where an objection to the disclosure of information or a document is made under subsection (1) the objection may be determined on application by the Commissioner of Inland Revenue or the Director of Public Prosecutions to a Judge in Chambers made not later than 14 days from the date of the objection.

(4) An appeal lies from a determination under subsection (2) to the Court of Appeal and shall be brought within 14 days from the date of the determination appealed from or within such further time as the Court of Appeal considers appropriate in the circumstances.

(3) A Judge who is to determine an objection pursuant to subsection (2) may, if the Judge considers it necessary, examine the information or document in relation to which the objection is made and shall grant the objection and order that disclosure of the information or document be refused where the Judge is satisfied as to any of the grounds mentioned in subsection (1).

58. Evidential value of copies

Where any information or document is examined or provided pursuant to an order under section 56, the person by whom it is examined or to whom it is provided or any officer or person authorised by the Commissioner of Inland Revenue for the purpose, may make or cause to be made one or more copies thereof and any copy purporting to be certified by the Commissioner of Inland Revenue to be a copy made pursuant to this section is evidence of the nature and content of the original information or document and has the same probative force as the original information or document would have had if it had been proved in the ordinary way.

59. Further disclosure

No person to whom information or documents have been disclosed or provided pursuant to an order under section 56 shall further disclose the information or documents except for the purposes of the investigation in relation to which the order was made, and proceedings under this Act.

Access to specified information and documents held by Government departments etc.

60. Disclosure of information and documents held by Government departments

Notwithstanding any provision in this or in any other law the Court may on the application by the Director of Public Prosecutions order the person in charge of any Government department or statutory body to produce or furnish to the Director of Public Prosecutions or any other person specified in the order any document or information which is in his possession or under his control or to which he may reasonably have access (not being a document readily available to the public) which the Court considers relevant to any investigation into, or proceedings relating to a scheduled offence alleged or suspected to have been committed by any person.

Part IV OFFENCES

61. Money laundering

(1) In this section "transaction" includes the receiving or making of a gift.

(2) A person who, after the commencement of this Act, engages in money laundering commits an indictable offence and is liable, on conviction, to

(a) a fine of $200 000 or imprisonment for a period of 20 years, or both, if he is a natural person; or

(b) a fine of $500 000, if it is a body corporate.

(3) A person shall be taken to engage in money laundering where

(a) the person engages, directly or indirectly, in a transaction that involves money or other property, that is proceeds of crime; or

(b) the person receives, possesses, conceals, disposes of, or brings into Barbados, any money or other property that is proceeds of crime, and the person knows or ought reasonably to know, that the money or other property is derived, obtained or realised, directly or indirectly from some form of unlawful activity.

62. Possession of property derived from unlawful activity

(1) A person who, after the commencement of this Act, receives, possesses, conceals, disposes of or brings into Barbados any money, or other property that he knows or ought reasonably to know to be proceeds of crime commits an indictable offence and is liable, on conviction, to

(a) a fine of $100 000 or imprisonment for a period of 5 years or both, if he is a natural person; or

(b) a fine of $250 000, if it is a body corporate.

(2) It is a defence to a charge for an offence against this section, if the person satisfies the Court that he did not know or had no reasonable grounds for knowing that the property referred to in the charge was derived or realised, directly or indirectly, from some form of unlawful activity.

63. Organised fraud

(1) A person who engages in organised fraud commits an indictable offence and is liable on conviction, to

(a) a fine of $250 000 or imprisonment for a period of 25 years, or both, if he is a natural person; or

(b) a fine of $750 000, if it is a body corporate.

(2) A person shall be taken to engage in organised fraud if, he engages, after the commencement of this Act, in acts or omissions

(a) that constitute three or more public fraud offences; and

(b) from which the person derives benefit.

(3) Where a person is charged with an offence against subsection (1) in relation to a number of public fraud offences and the jury is not satisfied that the person is guilty of the offence against subsection (1), but is satisfied that the person is guilty of one or more of the public fraud offences, the jury shall acquit the person of the offence against subsection (1) and shall find the person guilty of that public fraud offence or those public fraud offences and that person is punishable accordingly.

(4) [Cap. 139]

In this section "public fraud offence" means an offence under section 58, 59, 64, 65, 66, 68 or 69 of the Larceny Act.

64. Rules for establishing mens rea

(1) For the purposes of this Act, any conduct engaged in on behalf of a body corporate

(a) by a director, servant or agent of that body corporate within the scope of his actual or apparent authority, or

(b) by any other person at the direction or with the consent or agreement whether expressed or implied, of a director, servant or agent of that body corporate where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, servant or agent, shall be deemed to have been engaged in by the body corporate.

Part V MISCELLANEOUS

65. Amendment of Schedule

(1) The Attorney-General may by order published in the Official Gazette amend the Schedule.

(2) An order under subsection (1) shall be subject to affirmative resolution.

66. Standard of proof

Save as otherwise provided in this Act, any question of fact to be decided by the Court in proceedings under this Act is to be decided beyond a reasonable doubt.

67. External forfeiture orders and confiscation orders

(1) The Attorney-General may by an order under this section apply to this section to an external forfeiture order or external confiscation order of a description specified in the Minister's order.

(2) In this section

(a)

(a) " external forfeiture order" or "external confiscation order"

, as the case may be, means an order made by a court of a designated country, after the coming into force of an order under this section, for the purpose of recovering proceeds of crime;

(b)

"designated country"

means a country or territory outside Barbados designated by an order under this section.

(3) Subject to subsection (4), the Court may, on an application by or on behalf of the government of a designated country, register an external forfeiture order or an external confiscation order made there.

(10) In the case where the Court is satisfied, on an application by or on behalf of the government of a designated country, that proceedings which might result in an external forfeiture order or an external confiscation order being made against a person have been instituted in that country and have not been concluded, sections 31 and 32 have effect in relation to those proceedings

(a) as they would have effect in relation to proceedings instituted in Barbados against that person for a scheduled offence which have not been concluded; and

(b) as if references to a forfeiture order or a confiscation order were references to an external forfeiture order or an external confiscation order and references to an application by the Director of Public Prosecutions were references to an application by or on behalf of that government; and

(c) subject to such other modifications as may be specified in an order under this section.

68. Compensation

(1) Where upon the making of an application for a forfeiture order or a confiscation order the Court declines to make such an order, the Court shall on the application of a person who held realisable property order compensation to be paid to him if the requirements of subsection (2) are fulfilled.

(2) The Court shall order compensation to be paid if the Court is satisfied

(a) that there has been some serious default in the investigation or conduct of the matter and that, but for that default, the application would not have been instituted or continued; and

(b) that the applicant has suffered substantial loss in consequence of anything done in relation to the property by or in pursuance of an order of the Court under section 32.

(3) The amount of compensation to be paid under this section is such amount as the Court thinks just in all the circumstances.

(4) Compensation payable under this section shall be paid out of the Consolidated Fund.

69. Regulations

(1) The Attorney-General may make regulations prescribing matters

(a) required or committed by this Act to be prescribed;

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2) Regulations made under subsection (1) shall be subject to affirmative resolution.

70. Costs

(1) Where

(a) a person brings, or appears at, proceedings under this Act before the Court in order

(i) to prevent a forfeiture, confiscation or restraining order from being made against any property of that person, or

(ii) to have property of that person excluded from a forfeiture, confiscation or restraining order,

(b) the person is successful in those proceedings; and

(c) the Court is satisfied that that person was not involved in any way in the commission of the offence in respect of which the forfeiture, confiscation or restraining order was sought or made, the Court may order the Crown to pay all costs reasonably incurred by that person in connection with the proceedings or such part of those costs as is determined by the Court.

71. Non-liability of Public Trustee

The Public Trustee shall not be personally liable for anything done or omitted to be done by him in the course of the performance of his functions under this Act.

72. Operations of other laws not affected

Nothing in this Act prejudices, limits or restricts

(a) the operation of any other law which provides for the forfeiture of property or the imposition of penalties or fines; or

(b) the remedies available to the Crown apart from this Act, for the enforcement of its rights and the protection of its interests; or

(c) any power of search or any power to seize or detain property which is exercisable by a police officer apart from this Act.

73. Commencement

This Act shall come into operation on such date as the Governor-General may by proclamation appoint.

(Section 3)

SCHEDULE

List of Offences

1. Possession of controlled drugs for the purpose of supply contrary to section 6(3) of the Drug Abuse (Prevention and Control) Act, 1990.

2. Trafficking in controlled drugs contrary to section 18 of the Drug Abuse (Prevention and Control) Act, 1990.

3. Assisting another to retain the benefit of drug trafficking contrary to section 19 of the Drug Abuse (Prevention and Control) Act, 1990.

4. Money laundering (in relation to paragraphs 1, 2, and 3 of this Schedule), contrary to section 61 of this Act.

5. Possession of property derived from unlawful activity (in relation to paragraphs 1, 2 and 3 of this Schedule) contrary to section 62 of this Act.