TURKS AND CAICOS ISLANDS THE PROCEEDS OF CRIME ORDINANCE 2007 Arrangement of ...

496 Pages·2007·2.1 MB·English

TURKS AND CAICOS ISLANDS
THE PROCEEDS OF CRIME ORDINANCE 2007
Arrangement of Sections

SECTION
PART I
PRELIMINARY PROVISIONS AND INTERPRETATION
1. Short title and commencement
2. Interpretation
3. Definition of and provisions with respect to property
4. Institution of proceedings
PART II
CONFISCATION
Interpretation for this Part
5. Conduct, benefit and pecuniary advantage
6. Realisable property
7. The value of property
8. Value of property obtained from conduct
9. Tainted gifts
10. Gifts and their recipients
11. Value of tainted gifts
12. Further interpretive provisions.

Confiscation Order
13. Making confiscation order
14. Confiscation orders by Magistrate’s Court
15. Application of this section
16. Recoverable amount
17. Defendant’s benefit
18. Assumptions to be made where section 15 applies
19. Time for payment
20. Interest on unpaid sums
21. Effect of order on court’s other powers

Procedure
22. Postponement
23. Effect of postponement
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24. Statement of information
25. Defendant’s response to statement of information
26. Provision of information by defendant

Reconsideration of confiscation order

27. Reconsideration of case where no confiscation order made
28. Reconsideration of benefit where no confiscation order
made
29. Reconsideration of benefit where compensation order made
30. Reconsideration of amount available to defendant where
order made
31. Variation of order where amount available to defendant is
inadequate
32. Discharge of order for inadequacy of amount available to
defendant
33. Discharge of order where small amount outstanding
34. Information

Defendant absconds

35. Defendant convicted or committed
36. Defendant neither convicted nor acquitted
37. Variation of order
38. Discharge of order

Appeals

39. Appeal to Court of Appeal
40. Court’s power on appeal

Enforcement

41. Application of procedure for enforcing payment

Restraint order

42. Conditions for exercise of powers
43. Restraint orders
44. Application, discharge and variation
45. Appointment of management receiver
46. Appointment of enforcement receiver
47. Effect of restraint order
48. Application of proceeds of realisation and other sums
49. Further provisions with respect to receivers
50. Discharge and variation
51. Discharge of management receiver
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52. Winding up of company holding realisable property
53. Exercise of powers by court or receiver

Other matters

54. Compensation
55. Committal by Magistrate’s Court
56. Sentencing by court
57. Variation of confiscation orders
58. Enforcement abroad

PART III

CIVIL RECOVERY

Preliminary

59. General
60. Meaning of “unlawful conduct”
61. Meaning of “property obtained through unlawful conduct”

Recoverable property and associated property

62. Recoverable property
63. Tracing property
64. Mixing property
65. Recoverable property, accruing profits
66. Recoverable property, general exceptions
67. Other exemptions
68. Granting interests
69. Meaning of “associated property”
70. Obtaining and disposing of property

Application for recovery order

71. Application for recovery order

Interim receiving order

72. Application for, and making of, interim receiving order
73. Functions of interim receiver
74. Registration
75. Duties of respondent
76. Supervision of interim and variation of order
77. Restrictions on dealing etc. with property
78. Restriction on proceedings and remedies
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79. Exclusion of property which is not recoverable
80. Reporting

Vesting and realisation of recoverable property

81. Recovery orders
82. Functions of the trustee
83. Rights of pre-emption
84. Associated and joint property
85. Agreements about associated and joint property
86. Associated and joint property: default of agreement
87. Consent orders
88. Limit on recovery
89. Limits on recovery, supplementary
90. Applying realised proceeds

Exemptions etc.

91. Victims of theft, etc.
92. Other exemptions

Miscellaneous

93. Compensation
94. Financial threshold
95. Limitation
96. Property acquired before commencement date

Recovery of cash in summary proceedings

97. Interpretation for sections 98 to 107
98. Searches
99. Seizure of cash
100. Detention of seized cash
101. Interest
102. Release of detained cash
103. Forfeiture
104. Appeal against forfeiture
105. Application of forfeited cash
106. Victims and other owners
107. Compensation

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PART IV

MONEY LAUNDERING

Reporting Authority

108. Reporting Authority
109. Functions of the Reporting Authority
110. Disclosure by Reporting Authority
111. Issuance of Code and guidance by Reporting Authority
112. Immunity
113. Confidentiality of information disclosed
114. Annual report of Reporting Authority

Money Laundering Offences

115. Meaning of “criminal property” and “pecuniary advantage”
116. General provisions for sections 115 to 125
117. Concealing, disguising, converting, transferring and
removing criminal property
118. Arrangements
119. Acquisition, use and possession
120. Duty to disclose knowledge or suspicion of money
laundering
121. Duty to disclose Money Laundering Reporting Officer of a
person carrying on relevant business
122. Duty to disclose, Money Laundering Reporting Officer
123. Prejudicing investigation and tipping off
124. Circumstances in which offence under section 123 not
committed
125. Protection of disclosures
PART V
INVESTIGATIONS
General

126. Meaning of privileged material

Production orders

127. Application for production order
128. Production order
129. Order to grant entry
130. Further provisions relating to production orders

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Search and seizure warrants
131. Application for search and seizure warrant
132. Search and seizure warrant
Customer information orders

133. Customer information to be specified in regulations
134. Application for customer information order
135. Customer information order
136. Offences
137. Protection of statements
Account monitoring orders
138. Application for account monitoring order
139. Account monitoring order
140. Statements
141. Disclosure of information
General
142. Procedure
PART VI
COOPERATION
143. Interpretation for this Part and Schedule 4
144. External requests and orders
PART VII
MISCELLANEOUS
145. National Forfeiture Fund
146. Administration of the Fund
147. Preparation of financial statements
148. Audit of financial statements and annual report
149. Regulations
150. Transitional provisions and savings
151. Repeals and amendments
152. Amendment of Schedules

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TURKS AND CAICOS ISLANDS
PROCEEDS OF CRIME ORDINANCE 2007
(Ordinance 12 of 2007)

Assent.....................................................................1 October, 2007
Publication in Gazette ...........................................5 October, 2007
Commencement.......................................................8 October, 2007
AN ORDINANCE TO REPLACE THE PROVISIONS OF THE CONTROL
OF DRUGS (TRAFFICKING) ORDINANCE [CAP. 35] AND THE PROCEEDS
OF CRIME ORDINANCE 1998, TO CONSOLIDATE AND UPDATE THE
LAW RELATING TO CONFISCATION ORDERS IN RELATION TO PERSONS
WHO BENEFIT FROM CRIMINAL CONDUCT, RESTRAINT ORDERS TO
PROHIBIT DEALING WITH PROPERTY, MONEY LAUNDERING OFFENCES,
COURT ORDERS TO ASSIST IN INVESTIGATIONS RELATING TO MONEY
LAUNDERING OR A PERSON’S BENEFIT FROM CRIMINAL CONDUCT AND
COOPERATION WITH OVERSEAS AUTHORITIES AND TO INTRODUCE NEW
PROVISIONS ALLOWING FOR THE RECOVERY OF PROPERTY WHICH IS, OR
REPRESENTS, PROPERTY OBTAINED THROUGH UNLAWFUL CONDUCT.
ENACTED by the Legislature of the Turks and Caicos Islands.
PART I
PRELIMINARY PROVISIONS AND INTERPRETATION
1. (1) This Ordinance may be cited as the Proceeds of Crime Short title and
Ordinance, 2007 and shall come into operation on such date or commencement
dates as the Governor may appoint by notice published in the
Gazette and different dates may be appointed for different
provisions and different purposes.
2. (1) In this Ordinance – Interpretation.
“Anti-Money Laundering Regulations” means the regulations
made under section 149(2);
“Anti-terrorism Order” means the Anti-terrorism (Financial and
Other Measures) (Overseas Territories) Order 2002, or such
Order, Ordinance or enactment as may replace that Order;
“associated property” has the meaning specified in section 69;
“cash” includes –
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(a) notes and coins in any currency;
(b) postal orders;
(c) cheques of any kind, including travellers’ cheques;
(d) bankers’ drafts;
(e) bearer bonds and bearer shares; and
(f) any kind of prescribed monetary instrument;
“Civil Recovery Authority” means the Attorney General;
“civil recovery investigation” means, subject to subsection (2), an
investigation into –
(a) whether property is recoverable property or
associated property;
(b) who holds the property; or
(c) extent or whereabouts of the property;
“commencement date” means the date on which this Ordinance
comes into operation;
“Commission” means the Financial Services Commission

No. 6 of 2001 established under the Financial Services Commission
Ordinance 2001 and continued under the Financial Services
Commission Ordinance, 2007;
“confiscation order” means an order made under section13(3);
country” includes a territory;
“Court” means the Supreme Court;
“criminal conduct” has the meaning specified in section5(1);
“criminal property” has the meaning specified in section115(1);
“criminal recovery investigation” means an investigation into
whether a person has benefited from his criminal conduct or
the extent or whereabouts of his benefit from his criminal
conduct;
“dealing” with property includes disposing of it, taking possession
of it or removing it from the Islands;
“defendant” means a person against whom proceedings for an
offence have been instituted, whether or not he has been
convicted;
“document” means a document in any form and includes –
(a) any writing or printing on any material;
(b) any record of information or data, however
compiled, and whether stored in paper, electronic,
magnetic or any non-paper based form;
(c) any storage medium, including discs and tapes;
(d) books and drawings; and
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(e) a photograph, film, tape, negative or other medium
in which one or more visual images are embodied
so as to be capable (with or without the aid of
equipment) of being reproduced;
and without limiting the generality of the foregoing, includes any
court application, order and other legal process and any notice;
“financial intelligence unit” means a central public body or
agency responsible for receiving (and as permitted,
requesting), analysing and disseminating disclosures of
financial information –
(a) concerning the proceeds of crime or the suspected
proceeds of crime; or
(b) required by any law or enactment for the purposes
of combating money laundering;
“forfeiture order” means an order for the forfeiture of cash under
section ;
“Fund” means the National Forfeiture Fund established under
section 145;
“general criminal conduct” has the meaning specified in section
5(2);
“interest” in relation to property includes a right, including a right
to possession of the property, and in relation to land in the
Islands includes any legal estate and any equitable interest or
power;
“interim receiving order” means an order made by the court under
section 72;
“Islands” means the Turks and Caicos Islands;
“money laundering investigation” means an investigation into
whether a person has committed a money laundering offence;
“money laundering” or “money laundering offence” means an act
which –
(a) constitutes an offence under section 117 or 119;
(b) constitutes an attempt, conspiracy or incitement to
commit an offence specified in paragraph (a);
(c) constitutes aiding, abetting, counselling or
procuring the commission of an offence specified in
paragraph (a); or
(d) would constitute an offence specified in paragraph
(a), (b) or (c) if done in the Islands;
“Money Laundering Reporting Officer” means the person
appointed as Money Laundering Reporting Officer by a
person carrying on relevant business under and in accordance
with the Anti-Money Laundering Regulations;
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“offence” means an offence which is triable on indictment and
includes any such offence notwithstanding that the Magistrate
may also have the power to try the offence summarily;
“particular criminal conduct” has the meaning specified in section
5(3);
“police officer” includes a customs officer employed in the
Customs Department;
“premises” includes any place and, in particular, includes –
(a) any vehicle, vessel, aircraft or hovercraft;
(b) any offshore installation; and
(c) any tent or movable structure;
“prescribed” means prescribed by regulations made under section
149;
“privileged material” has the meaning specified in section ;
“property” has the meaning specified in section 3;
“realisable property” has the meaning specified in section 6;
“recoverable amount” means the amount that the court, in
accordance with section 13(3)(a), determines should be
recovered from a defendant under a confiscation order;
“recoverable property” shall be construed in accordance with
sections 62 to 68;
“recovery order” means an order made under section 81;
“Registrar” means the Registrar of the Supreme Court;
“regulated business” and “regulated person” have the meanings
specified in the Anti-Money Laundering Regulations;
“relevant business” has the meaning specified in the Anti-Money
Laundering Regulations;
“Reporting Authority” means the Reporting Authority established
under section 108;
“restraint order” means an order made under section 43(1);
“senior police officer” means a police officer of the rank of
inspector or above or, in relation to the exercise of a power by
a customs officer, an officer of the rank of Assistant Collector
or above;
“tainted gift” has the meaning specified in section 9;
“trustee” means the trustee for civil recovery appointed by the
court under section 81(1); and
“unlawful conduct” has the meaning specified in section 60.
(2) An investigation is not a civil recovery investigation
within the meaning of subsection (1) if –
(a) proceedings for a recovery order have been
instituted in respect of the property in question;
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