PROCEEDS OF CRIME ACT

Preliminary

   1   Short title

   2   Interpretation

 

PART I
The Assets Recovery Agency

   3   Assets Recovery Agency

   4   Co-operation of entities

 

PART II
Forfeiture Orders and Pecuniary Penalty Orders

   5   Making of order

   6   Criminal lifestyle

   7   Conduct and benefit

   8   Assumptions for determining benefit from general criminal conduct

   9   Effect of forfeiture order

   10   Voidable transfers

   11   Value of property for the purposes of a pecuniary penalty order

   12   Time for payment

   13   Interest on unpaid sums

   14   Effect of order on Court's other powers

   15   Postponement

   16   Effect of postponement

   17   Statement of information

   18   Defendant's response to statement of information

   19   Acceptance of allegations by enforcing authority

   20   Reconsideration of case where no order was made

   21   Reconsideration of benefit where no order was made

   22   Reconsideration of benefit after order is made

   23   Variation of order upon inadequacy of available amount

   24   Reconsideration of available amount after order is made

   25   Discharge of order with small sum outstanding

   26   Making of order where defendant absconds after committal or conviction

   27   Making of order where defendant absconds before verdict

   28   Variation of order made pursuant to section 27

   29   Appeal against forfeiture orders and pecuniary orders

   30   Court's powers on appeal

   31   Provisions re imprisonment or detention

 

PART III
Restraint orders

   32   Conditions for making restraint order

   33   Restraint orders

   34   Discharge or variation of order

   35   Appeals

   36   Seizure

   37   Hearsay evidence

   38   Registration and publication of restraint order

   39   Contravention of restraint order

   40   Restrictions on the enforcement of restraint order

 

Receivers

   41   Appointment of the Director's receiver

   42   Powers of Director's receiver

   43   Application of sums by Director's receiver

   44   Sums received by Agency

   45   Restrictions on Director's receiver

   46   Protection of Director's receiver

   47   Application for directions

   48   Discharge or variation of order concerning Director’s receiver

   49   Appeals

 

General provisions as to the exercise of powers
under Parts II and III

   50   Seized money

   51   Sentencing powers of court and Director's receiver

   52   Committal by Resident Magistrate's Court

   53   Sentencing powers of Resident Magistrate not affected

   54   Enforcement abroad

 

PART IV
Civil Recovery of the Proceeds, etc of unlawful conduct

   55   Interpretation

   56   General purpose of this Part

 

Civil recovery in the Supreme Court

   57   Proceedings for recovery orders

   58   Recovery orders

   59   Functions of the Agency in giving effect to recovery order

   60   Rights of pre-emption, etc

   61   Associated and joint property

   62   Agreements about associated or joint property

   63   Default of agreement about associated or joint property

   64   Payments in respect of rights under pension schemes

   65   Consequential adjustment of liabilities under pension schemes

   66   Supplementary provisions in respect of pension schemes

   67   Applying realised proceeds

   68   Exemption for victims of theft, etc

   69   Compensation

   70   Financial threshold

   71   Limitation

 

Recovery of cash in summary proceedings

   72   Searches

   73   Prior approval

   74   Code of practice

   75   Seizure of cash

   76   Detention of seized cash

   77   Interest

   78   Release of detained cash

   79   Forfeiture

   80   Appeal against forfeiture

   81   Application of forfeited cash

   82   Victims and other owners

   83   Compensation

   84   Property obtained through unlawful conduct

   85   Tracing property, etc

   86   Mixed property

   87   Profits accruing in respect of recoverable property

   88   General exceptions

   89   Grant of interest in recoverable property

   90   Insolvency

 

PART V
Money laundering

   91   Interpretation

   92   Concealing, etc criminal property

   93   Acquisition, use and possession of criminal property

   94   Non-disclosure by a person in the regulated sector

   95   Non-disclosure by a nominated officer in the regulated sector

   96   Non-disclosure by authorised officer

   97   Tipping off

   98   Penalties

   99   Appropriate consent by nominated officer

   100   Protected and authorised disclosures

   101   Cross border movement of funds

   102   Regulations

 

PART VI
Investigations

   103   Interpretation

   104   Offences prejudicing investigation

 

Disclosure orders

   105   Disclosure orders

   106   Requirements for making a disclosure order

   107   Order to grant entry

   108   Production, copying and retention of information or material

   109   Electronic information

   110   Ancillary order

   111   Government departments

   112   Offences

   113   Restriction on use of statements in evidence

   114   Supplementary

 

Search and seizure warrants

   115   Search and seizure warrants

   116   Requirements where disclosure order not available

   117   Privileged or excluded material

   118   Supplementary

 

Customer information orders

   119   Customer information orders

   120   Meaning of customer information

   121   Requirements for making a customer information order

   122   Offences

   123   Restriction on use of statements in evidence

   124   Disclosure of information

   125   Supplementary

 

Account monitoring orders

   126   Account monitoring orders

   127   Restriction on use of statements in evidence

   128   Supplementary

 

PART VII
General

   129   Property excluded from operation of Bankruptcy Act

   130   Restriction of powers in case of bankruptcy

   131   Tainted gifts made by bankrupt

   132   Property excluded on the winding up of a company

   133   Tainted gifts made by a company to be wound up

   134   Floating charges

   135   Seizure or disposal of excluded property by insolvency practitioner

   136   Rules of court

   137   Protection of persons exercising functions under this Act

   138   Regulations

   139   Repeal of Drug Offences (Forfeiture of Proceeds) Act and Money Laundering Act

   140   Amendments of other Acts

      SCHEDULES

 

THE PROCEEDS OF CRIME ACT

[Date of Commencement: 30th May, 2007]

Acts
4 of 2007,
12 of 2009,
13 of 2009,
9 of 2010.

Preliminary (sections 1-2)

1   Short title

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

2   Interpretation

   (1) In this Act-

   "Agency" means the Assets Recovery Agency referred to in section 3;

   "authorised financial investigator" means-

   (a)   a member of the Constabulary Force so designated by the Commissioner of Police;

   (b)   an officer of the Agency; or

   (c)   any other person so designated by the Minister;

   "benefit" includes any property, service or advantage;

   "Court" means the Supreme Court;

   "credit union business" means the business of the taking of deposits and withdrawable shares by a credit union from its members and the provision of credit facilities by a credit union to its members, and any other business that may be so designated in writing by the Minister responsible for finance;

[9/2010 s 36(a).]

   "criminal conduct" means conduct occurring on or after the appointed day, being conduct which-

   (a)    constitutes an offence in Jamaica; or

   (b)    occurs outside of Jamaica and would constitute such an offence if the conduct occurred in Jamaica;

   "Director" means the Director of the Assets Recovery Agency as specified in section 3(2);

   "enforcing authority" means-

   (a)   the Agency, where it makes an application under section 5(1) or takes proceedings under section 57;

   (b)   the Director of Public Prosecutions, where he makes such an application;

   "financial institution" means-

   (a)    a bank licensed under the Banking Act;

   (b)   a financial institution licensed under the Financial Institutions Act;

   (c)   a building society registered under the Building Societies Act;

   (d)   a society registered under the Co-operative Societies Act and which carries on credit union business;

[9/2010 s 36(b).]

   (e) a person who-

         (i)   engages in insurance business within the meaning of the Insurance Act;

         (ii)   performs services as an insurance intermediary within the meaning of the Insurance Act,

      but does not include an insurance consultant or an adjuster;

   (f)    a person licensed under the Bank of Jamaica Act to operate an exchange bureau;

   (g)   a person licensed under the Securities Act as a dealer or investment adviser;

   (h)   approved money transfer and remittance agents and agencies as defined by section 2 of the Bank or Jamaica Act;

   (i)   any other person declared by the Minister responsible for national security, by order subject to affirmative resolution, to be a financial institution for the purposes of this Act;

   "forfeiture order" means an order under section 5(2)(c) or (3)(a);

   "free property" means property in respect of which no forfeiture order is in force under any other law;

   "general criminal conduct" in relation to a defendant means all the defendant's criminal conduct occurring after the appointed day;

   "interim receiving order" means an interim receiving order made pursuant to regulations under this Act;

   "offence concerned" means the offence referred to in section 5(1) or 52(1)(a), as the case may require;

   "overseas authority" means an authority in a country or territory outside Jamaica, which has responsibility for-

   (a)   making a request to an authority in another country or territory (including Jamaica) to prohibit dealing with relevant property; or

   (b)   carrying out an investigation into whether-

         (i)   property has been obtained as a result of or in connection with criminal conduct; or

         (ii)   a money laundering offence has been committed;

   "particular criminal conduct" in relation to a defendant means all of the defendant's conduct, occurring on or after the appointed day, which constitutes-

   (a)    the offence concerned;

   (b)    offences of which the defendant was convicted in the same proceedings as those in which he was convicted of the offence concerned; or

   (c)   offences which the Court will be taking into consideration in sentencing the defendant for the offence concerned;

   "pecuniary penalty order" means an order under section 5(3)(b);

   "property" means all property wherever situate, including-

   (a)   money;

   (b)   all forms of real or personal property; and

   (c)   things in action and other intangible or incorporeal property;

   "realisable property" means-

   (a)    any free property held by the defendant; or

   (b)   any free property held by the recipient of a tainted gift;

   "recipient of a tainted gift" means a person to whom the defendant has made the gift;

   "recoverable amount" means the amount payable under a pecuniary penalty order;

   "restraint order" means an order made under section 33.

   (2) A gift, whether made before or after the appointed day, is tainted if-

   (a)   where a court has decided that the defendant has a criminal lifestyle-

         (i)   it was made by the defendant at any time after the first day of the period of six years ending with-

         (A)   the day when proceedings for the offence concerned were started against the defendant; or

         (B)   if there are two or more offences and proceedings for those offences were stalled on different days, the earliest of those days; or

         (ii)   it was made by the defendant at any time and was of property which-

         (A)   was obtained by the defendant as a result of or in connection with the defendant's general criminal conduct; or

         (B)   in whole or in part, directly or indirectly, represented in the defendant's hands, property obtained by the defendant as a result of or in connection with the defendant's general criminal conduct; or

   (b)   where a court has decided that the defendant does not have a criminal lifestyle, the gift was made by the defendant at any time after-

         (i)   the date on which the offence concerned was committed; or

         (ii)   the date of the earliest offence concerned, where the defendant's particular criminal conduct consists of two or more offences committed on different dates.

   (3) For the purposes of subsection (2)-

   (a)   an offence which is a continuing offence is committed on the first occasion when it is found to be committed; and

   (b)   the defendant's particular criminal conduct includes any conduct that constitutes offences that the Court has taken into consideration in deciding the defendant's sentence for the offence concerned.

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