Books about Anguilla


Thursday, 18 June 2009

A Proceeds of Crime Act for Anguilla?

An Act (Legislation) critically vital in establishing the power of recovery of assets/property obtained through ‘unlawful conduct’; which must not be confused as simply tricked law specifically targeting Anguillians per se, except those associated in such unlawful conduct or criminal activities - will be a Proceeds of Crime Act, and must be accredited for what it is.

This piece of legislation will provide confiscation orders in relation to ‘persons who benefit from criminal conduct’; and restraint orders to prohibit dealing with such assets/property; allowing the recovery of such assets/property which is or represents assets/property obtained through ‘unlawful conduct’ or which is intended to be used in unlawful conduct.

However, there will never be a flawless piece of legislation or government policy and this is of no exception. Therefore it is crucial that we dissect and understand its significance when concluding our objectives. The result can have us remained black-listed/dodgy; finally destroying reputation and our relationship with the rest of the world, or to comply and be in good standing with. This legislation has no room for watering-down therefore; there is no simultaneous having your cake and eating it.

The main provisions of this legislation create special powers in the recovery of assets/property obtained through unlawful conduct. This will introduce a new power of civil recovery to allow the government to recover – by a civil action in the High Court the proceeds of criminal activity.

The tension here is that civil rules of evidence and procedure apply, meaning that to establish that a crime ("unlawful conduct") has taken place the government needs only prove their case on the balance of probabilities, not on the usual criminal law standard of beyond reasonable doubt.

These would-be introduced powers for the Royal Anguilla Police Force (RAPF) and Her Majesty Customs (HM Customs) are primarily to seize cash they believe is crime related and to secure its forfeiture in a court proceeding. This will enables court to freeze a suspect's assets/property at the start of a criminal investigation.

It allows the court to make statutory assumptions in non-drugs cases, that all of a defendant's assets represent the proceeds of crime. In essence, simply changing the burden of proof.

And yes, legal burden generally shifts under certain circumstances example, where presumptions operate. Other exceptions from the general rule include:

  • Common Law: insanity under the M’Naughten rules;
  • Express statutory exceptions: an Homicide Act - where diminished responsibility is raised as a defence;
  • Prevention of Crime Act – where the accused relies on a defence of lawful authority or reasonable excuse in response to a charge of possession of an offensive weapon;
  • A Prevention of Corruption Act – where a gift is given or received by a public official, it will be presumed that the gift was given or received corruptly unless the contrary is proved by the accused;
  • And it is implied that by virtue of the Magistrate Court Act, that where the defendant relies for his defence on any exception, exemption, proviso, excuse or qualification, the burden of providing that he falls within that exception, proviso, excuse or qualification shall be on him;
  • And then there are the strict liability cases…

These exceptions are illustrative examples only; as research suggests that up to 40% of defences tried in Courts impose a legal burden on the accused; and this piece of legislation is simply another.

But do the benefits outweigh the burdens?

The Proceeds of Crime Act will simplify the requirements for convictions for ‘money laundering’ and ‘frontiers’ (fronting) by removing the requirement to prove what the crime was. It simply has to be proven that the seized money is the proceeds of crime. It will allows investigators to seek court orders requiring financial institutions and banks to identify all accounts of people ‘under investigation’ and provide transactional information on suspect accounts for a ‘specified period’.

It places greater obligation on the financial sector to disclose suspicious transactions and places an onus on any professional working in regulated industries to immediately report to the regulation authorities any suspicion they have that anyone they talk to may have committed a criminal offence.

It allows the government to precribe the form and manner in which these disclosures are made therefore expanding the law on money laundering to cover any crime rather than just drug-related offences, in essence, targeting all proceeds of any criminal conduct that would be an offence in Anguilla.

This will provide wide-ranging powers by authorities to deprive these criminals of their main motivation – their money and the property they have accumulated through their illegal activities.

The legislation will introduce overall surveillance/policing or a negligence test, meaning a professional working in a sector regulated by money laundering regulations (such as banks and other financial institutions) can commit a criminal offence for failing to report money laundering if there are ‘reasonable grounds for knowing or suspecting’ that it is taking place. Failure to report will result in imprisonment.

However, there is a defence to these offences in certain circumstances, primarily authorised disclosure, which creates a consent regime where an individual or business reports any suspicious transaction and waits for specific consent before completing the transaction.

So… like every law, there goes the loophole.

These new offences have caused outrage in the professional community, with attorneys arguing that the legislation would force them to breach professional privilege and act against the interests of their own clients. They argued that the act is too broadly drafted that professionals, fearful of prosecution, would send law agencies a flow of useless reports relating to trivial breaches of the law.

So-called civil rights enthusiasts argued that this legislation will run the risk of undermining key criminal procedural protections and lacked sufficient safeguards example, in relation to the civil recovery orders, that it is wrong to give the state a power to opt for extensive confiscation of defendants' assets in circumstances where it does not have sufficient evidence to prosecute them in the criminal courts and is an unacceptable blurring of the civil and criminal law.

They further argued that although the action for civil recovery is not classed as criminal, and indeed is intended to circumvent the criminal process… its punitive nature means that, as a matter of principle, criminal type safeguards are warranted.

Now, we know that our populace is generally law-abiding and uncorrupted and will never get involved in any such unlawful conducts… ‘never have and never will’.

Are you aware of anyone involved in Racketeering; Money Laundering; ‘Fronting’; professionals knowingly - presently or previously - doing work for clienteles involved in any such unlawful conduct; Government ministers, Heads of Departments or Civil Servants receiving unlawful underhand payouts; God’s Purse-snitchers (church corruption); fishermen benefiting from surprise catches believe to be proceeds of crime waiting for a pickup on the open seas; business fake intakes and banking inconsistencies etc…let the authorities know and they can act under this propose legislation when accent.

Is Corrupt-de-Don corruption free enough to be tasked as our Corruption Tsar; fully well aware of his-story? While he remains quiet on such pertinent issues; Ms. Lolita Davis-Richardson and the ‘rest’ suspects continue to embarrass themselves.

As there will never be a perfect piece of legislation, my pledge is that if we care about Anguilla, we must support our government on this one. A Proceeds of Crime Act is good for the eradication of hidden criminal activities, the cleansing of our tarnished Financial Services Industry (half of our overall industries), and the next generation survival.

We must all work together for the success of Anguilla on a whole or we all will perish together as fools.

Let us stop being tribal with our trivial ‘Politricking’ and all hands on the Plough for the best interest of Anguilla.

We must be careful not to throw out the baby with the bathwater.

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