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2003 Proceeds of Crime Act 3 21

ARRANGEMENT OF SECTIONS

PART I

PRELIMINARY

Introductory

1. Short title

2. Commencement and application

Interpretation

3. Meaning of “drug trafficking”, “relevant offence”, “criminal conduct”

4. Meaning of “property”, “realizable property” etc

5. Value of property

6. Gifts caught by this Act

7. Other definitions

8. Institution and conclusion of proceedings

PART II

CONFISCATION ORDERS

Confiscation orders

9. Confiscation orders: drug trafficking

10. Confiscation orders: relevant offences

11. Postponed determinations

12. Assessing proceeds of drug trafficking

13. Statements of information by D.P.P.

14. Provision of information by defendant

15. Amount to be recovered

16. Protection of third party rights

Subsequent proceedings

17. Reconsideration of case

18. Revised assessment of proceeds of criminal conduct

19. Reconsideration etc: supplementary

20. Increase in realizable property

21. Inadequacy of realizable property

22 Act 3 Proceeds of Crime 2003

Absconded persons etc

22. Confiscation order where defendant has absconded or died

23. Variation of order made against absconder

24. Discharge of order where absconder acquitted etc

PART III

ENFORCEMEN T OF CONFISCATION ORDERS

Default powers

25. Imprisonment in default

26. Interest on unpaid sums

Restraint and charging orders

27. Cases in which restraint and charging orders may be made

28. Restraint orders

29. Charging orders

30. Charging orders: supplementary

Realization of property

31. Realization of property

32. Application of proceeds of realization etc

33. Exercise of powers for realization of property

34. Receivers: supplementary

Insolvency

35. Bankruptcy of defendant

36. Winding up of company holding realizable property


PART IV

INFORMATION GATH ERING POWERS

37. Production orders

38. Failure to comply with production order

39. Search warrants

40. Disclosure of information by Government Departments

41. Monitoring orders

42. Offence of prejudicing an investigation

PART V

MONEY LAUNDERING

Offences

43. Concealing or transferring proceeds of criminal conduct

44. Assisting another to retain proceeds of criminal conduct

45. Acquisition, possession or use of proceeds of criminal conduct

46. Disclosure of knowledge or suspicion of money laundering

47. Tipping-off

48. Record keeping and reporting of suspicious transactions

Penalties

49. Penalties for money laundering etc

Prevention of money laundering

50. Estab lishment of Supervisory Authority; regulations etc

PART VI

SEIZURE OF CASH

51. Seizure and detention of cash imported or exported

52. Forfeiture orders and appeals

53. Seizure: supplementary


PART VII

MISCELLANEOUS & SUPPLEMENT AL

Foreign orders etc

54. Enforcement of external confiscation orders

55. Registration of external confiscation orders

56. Evidence of corresponding law

Confiscated Assets Fund

57. Confiscated Assets Fund

58. Administration of the Fund

Offences and police powers etc

59. Offences by bodies corporate

60. Police powers

61. Police officers: duty of confidentiality

Procedure

62. Jurisdiction

63. Compensation

64. Costs

Supplemental

65. Civil standard of proof

66. Appeals

67 . Index of defined expressions

68. Regulations

SCHEDULE 1


GRENADA

ACT NO. 3 OF 2003

I assent,

DANIEL CHARLES WILLIAMS

28th January, 2003. Governor-General.

An Act to make provision with respect to the proceedsfrom Drug Trafficking and Money Laundering andother related matters.

[31st January, 2003].

ENACTED by the Parliament of Grenada.

WHEREAS it is expedient to extend the powers of thepolice and the courts in relation to the tracing andconfiscation of the proceeds of drug trafficking; to make newprovision in relation to the tracing and confiscation of theproceeds of indictable offences and offences triable bothsummarily or on indictment; to make new provision inrelation to money laundering; to extend the powers of seizureand forfeiture on import or export of cash suspected of beingthe proceeds of criminal conduct; and to make connected andconsequential provision.


PART I

PRELIMINARY

Introductory

Short title. 1. This Act may be cited as the

PROCEEDS OF CRIME ACT, 2003.

Commencementand application.

2.—(1) This Act shall come into operation on such day asthe Governor General may appoint by notice published in theGazette.

(2) This Act shall apply to any property, whether ornot situated in Grenada.

Interpretation

Meaning of“drugtrafficking”,“relevantoffence”,“criminalconduct”.

3. In this Act-

(1) “criminal conduct” means,

(a) drug trafficking, or

(b) any relevant offence;

(2) “drug trafficking offence” means an offence,

(a) defined under section 18 of the DrugAbuse (Prevention and Control) Act 1992(importation, exportation, production andor supply of a trafficable quantity of acontrolled drug, possession with intent tosupply or handling of controlled drugs andcultivation of cannabis);


(b) under section 32 of the Drug Abuse(Prevention of Control) Act, (assisting in orinducing outside Grenada commission of anoffence punishable under a correspondinglaw); or

(c) under section 43, 44 or 45 of this Act (moneylaundering) which relates to the proceeds ofdrug trafficking;

or an offence under the Criminal Code Cap. 1 Vol. 1 of the 1994Continuous Revised Laws of Grenada constituting an attempt,incitement, conspiracy etc deriving from such an offence;

(3) “drug trafficking” means doing or being concernedin, whether in Grenada or elsewhere, any act constituting-

(a) a drug trafficking offence, or

(b) an offence punishable under a correspondinglaw, and includes entering into or beingotherwise concerned in, whether in Grenadaor elsewhere, a drug trafficking arrangement;

(4) “drug trafficking arrangement” means anarrangement whereby-

(a) the retention or control by or on behalf ofanother person of that other person’sproceeds of drug trafficking is facilitated; or

(b) the proceeds of drug trafficking by anotherperson are used to secure that funds areplaced at that other person’s disposal or areused for that other person’s benefit to acquireproperty by way of investment;


(5) “relevant offence” means,

(a) any indictable offence or offence triable bothsummarily or on indictment in Grenada fromwhich a person has benefitted as defined insection 10(3) of this Act, other than a drugtrafficking offence

(b) any offence listed in schedule 2 of this Act

(c) any act or omission which, had it occurred inGrenada, would have constituted an offenceas defined in subsection (a) or subsection (b).

Meaning of“property”,“realizable”property" etc.

4.—(1) In this Act-

“property” means money and all other property, movableor immovable, including things in action and otherintangible or incorporeal property; and

“interest”, in relation to property, includes right.

(2) For the purposes of this Act-

(a) property is held by any person if he holds anyinterest in it;

(b) references to property held by a personinclude a reference to property vested in histrustee in bankruptcy or liquidator;

(c) references to an interest held in property by aperson beneficially include a reference to aninterest which would be held by himbeneficially if the property were not so vestedin his trustee in bankruptcy or liquidator; and


(d) property is transferred by one person toanother if the first person transfers or grantsto the other any interest in the property.

(3) In this Act, “realizable property” means-

(a) any property held by the defendant (otherthan property in respect of which there is inforce a forfeiture order) and;

(b) any property held by a person to whom thedefendant has, directly or indirectly, made agift caught by this Act.

(4) For the purposes of this Act, the amount that mightbe realised at the time a confiscation order is made against thedefendant shall be-

(a) the total of the values at that time of all therealizable property held by the defendant;less

(b) where there are obligations having priority atthat time, the total amounts payable inpursuance of such obligations,

together with the total of the values at that time of all giftscaught by this Act.

(5) For the purposes of subsection (4), an obligation haspriority at any time if it is an obligation of the defendant-

(a) to pay an amount due in respect of a fine, orother order imposed or made on convictionof an offence, where the fine was imposed ororder made before the confiscation order; or


(b) to pay any sum which would be includedamong the preferential debts in thedefendant's bankruptcy commencing on thedate of the confiscation order or winding upunder an order of the court made on that date.

(6) For the purposes of subsection (5)(b), “preferentialdebts”-

(a) in relation to bankruptcy, means the debts tobe paid in priority under the Bankruptcy ActCap. 27 (assuming the date of theconfiscation order to be the date of thereceiving order); and

(b) in relation to winding up, means the debts tobe paid in priority in accordance with theCompanies Act 1994 (assuming the date ofthe confiscation order to be the date of thewinding up).

Value ofproperty.

5.—(1) Subject to the following subsections and section 6, forthe purposes of this Act, the value of property (other than cash)in relation to any person holding the property shall be its marketvalue, except that where any other person holds an interest in theproperty, the value shall be-

(a) the market value of the first-mentioned person'sbeneficial interest in the property, less

(b) the amount required to discharge anyincumbrance (other than a charging order) onthat interest.

(2) Subject to section 6(3), references in this Act to thevalue at any time (referred to in subsection (3) as the “materialtime”) of a gift caught by this Act are references to-


(a) the value of the gift to the recipient when hereceived it adjusted to take account ofsubsequent changes in the value of money; or

(b) where subsection (3) applies, the valuementioned therein,

whichever is the greater.

(3) Subject to section 6(3), if at the material time therecipient holds-

(a) the property which he received (not beingcash); or

(b) property which, in whole or in part, directlyor indirectly represents in his hands theproperty which he received,

the value referred to in subsection (2)(b) shall be the value tohim at the material time of the property mentioned in paragraph(a) or as the case may be, of the property mentioned in paragraph(b) so far as it so represents the property which he received, butdisregarding in either case any charging order.

Gifts caught bythis Act.

6.—(1) In relation to a drug trafficking offence, a gift(including a gift made before the commencement of this Act) iscaught by this Act if-

(a) it was made by the defendant at any time sincethe beginning of the period of six years ending,

(i) when the proceedings for the drugtrafficking offence were instituted againsthim, or


(ii) where no such proceedings have beeninstituted, when an application for arestraint or charging order is made undersection 28 or 29; or

(b) it was made by the defendant at any time andwas a gift of property,

(i) received by the defendant in connectionwith drug trafficking carried on by him oranother person, or

(ii) which in whole or in part directly orindirectly represented in the defendant'shands property received by him in thatconnection.

(2) In relation to a relevant offence, a gift (including agift made before the commencement of this Act) is caught bythis Act if-

(a) it was made by the defendant at any timesince the commission of the relevant offence,or, if more than one, the earliest of theoffences to which the proceedings relate(including any offence which the court takesinto consideration in determining hissentence); and

(b) the court considers it appropriate in all thecircumstances to take the gift into account.

(3) For the purposes of this Act-


(a) the circumstances in which the defendant isto be treated as making a gift include thosewhere he transfers property to anotherperson, directly or indirectly, for aconsideration the value of which issignificantly less than the value of theconsideration provided by the defendant; and

(b) in those circumstances, this section andsection 5 shall apply as if the defendant hadmade a gift of such share in the property asbears to the whole property the sameproportion as the difference between thevalues referred to in paragraph (a) bears tothe value of the consideration provided by thedefendant.

Otherdefinitions.

7. In this Act-

(1) “Supervisory Authority” means the SupervisoryAuthority established under section 50 of thisAct;

(2) “confiscation order” means an order made undersection 9 or 10 (including such an order made byvirtue of section 17 or 22);

(3) “the court” means the High Court;

(4) “defendant” means a person against whomproceedings have been instituted for an offence(whether or not he has been convicted);

(5) “items subject to legal privilege” means-


(a) communications between a professionallegal adviser, and his client made inconnection with the giving of legal adviceto the client; and

(b) communications between a professionallegal adviser and his client or betweensuch an adviser and any other personmade in connection with or incontemplation of legal proceedings andfor the purpose of such proceedings,

when they are in the possession of a person who is entitled topossession of them; but items held with the intention offurthering a criminal purpose are not items subject to legalprivilege;

(6) “material” includes any book, document or otherrecord in any form whatsoever, and anycontainer or article relating thereto;

(7) “money laundering” means doing any act-

(a) which constitutes an offence under section43, 44 or 45; or

(b) which would constitute such an offence ifdone in Grenada;

and for these purposes, having possession of any property shallbe taken to be doing an act in relation to it;

(8) “premises” includes any place and, in particular,includes,

(a) any vehicle, vessel, aircraft, or structurewithin the coastal waters of Grenada, and


(b) any tent or other movable structure;

(9) “prescribe” means prescribe by regulationsmade under section 68.

Institution andconclusion ofproceedings.

8.—(1) For the purposes of this Act-

(a) proceedings for an offence are instituted inGrenada when an information is laid charging aperson with an offence;

(b) proceedings in Grenada for an offence areconcluded on the occurrence of one of thefollowing events-

(i) the discontinuance of the proceedings;

(ii) the acquittal of the defendant;

(iii) the quashing of the defendant's convictionfor the offence;

(iv) the satisfaction of a confiscation ordermade in the proceedings;

(c) an application under section 17, 18, 20 or 22 isconcluded,

(i) if the court decides not to make or vary(as the case may be) a confiscation orderagainst the defendant, when it makes thatdecision; or


(ii) if a confiscation order is made or variedas a result of that application, when theorder is satisfied;

(d) a confiscation order is satisfied when no amountis due under it.

(2) For the purposes of this Act, an order is subject toappeal until (disregarding any power of a court to grant leave toappeal out of time) there is no further possibility of an appeal onwhich the order could be varied or set aside.

PART II

CONFISCATION ORDERS

Confiscation orders

Confiscationorders: drugtrafficking.

9.—(1) Where a defendant appears before the High Court tobe sentenced for one or more drug trafficking offences, the courtshall proceed under this section,

(a) on the application of the Director of PublicProsecutions, or

(b) of its own motion where it considers itappropriate to do so.

(2) The court shall first determine whether thedefendant has benefitted from drug trafficking.

(3) For the purposes of this Act, a person has benefittedfrom drug trafficking if he has at any time (whether before orafter the commencement of this Act) received any payment orother reward in connection with drug trafficking carried on byhim or another person.


(4) If the court determines that he has so benefitted, itshall, before sentencing or otherwise dealing with him in respectof the offence or (as the case may be) any of the offencesconcerned, make a confiscation order and determine inaccordance with section 15 the amount to be recovered in hiscase under the order.

(5) The court shall then, in respect of the offence oroffences concerned-

(a) order the defendant to pay the amount of theconfiscation order within such period as itmay specify; and

(b) take into account the confiscation orderbefore,

(i) imposing any fine on him;

(ii) making any other order involving anypayment by him; and

(iii) making a forfeiture order under theDrug Abuse and Control (Preventionof Misuse) Act 1992; but

(c) subject to paragraph (b), leave theconfiscation order out of account indetermining the appropriate sentence orother manner of dealing with thedefendant.

Confiscationorders: relevantoffences.

10.—(1) Where a defendant appears before the High Courtto be sentenced for one or more relevant offences, the court shallproceed under this section,


(a) on the application of the Director of PublicProsecutions, or

(b) of its own motion where it considers itappropriate to do so.

(2) The court shall first determine whether thedefendant has benefitted from,

(a) the offence or offences for which he is to besentenced (“the principal offence”),

(b) any other relevant offence of which he wasconvicted in the same proceedings as theprincipal offence, and

(c) any relevant offences which the court will betaking into consideration in determining hissentence for the principal offence.

(3) For the purposes of this Act,

(a) a person benefits from an offence if heobtains property as a result of or inconnection with its commission and hisbenefit is the value of any property soobtained; and

(b) if he derives a pecuniary advantage as a resultof or in connection with the commission ofan offence, he is to be treated as if he hadobtained instead a sum of money equal to thevalue of the pecuniary advantage.


(4) If the court determines that the defendant hasbenefitted from the offences mentioned in subsection (2), it shall,before sentencing or otherwise dealing with him in respect of theprincipal offence, make a confiscation order and determine inaccordance with section 15 the amount to be recovered in hiscase under the order.

(5) The court shall then in respect of the principaloffence-

(a) order the defendant to pay the amount of theconfiscation order within such period as itmay specify; and

(b) take into account the confiscation orderbefore,

(i) imposing any fine on him, or

(ii) making any other order involving anypayment by him; but

(c) subject to paragraph (b), leave theconfiscation order out of account indetermining the appropriate sentence or othermanner of dealing with the defendant.

(6) Where a defendant is convicted in any proceedingsbefore a magistrates’ court of a relevant offence other than drugtrafficking where the Director of Public Prosecutions givesnotice that the benefit is

(a) one hundred thousand dollars or more, or


(b) one hundred thousand dollars or more takenwith any benefit assessed in respect of anyprevious relevant offence other than drugtrafficking in the preceding six years thatnotice contains a declaration that it isappropriate for the provisions of this sectionto be applied.

(7) When the Director of Public Prosecutions givesnotice in accordance with subsection 6, the court shall, subject tosubsection (9) make the assumptions specified in subsection (8)made for the purpose

(a) of determining whether the defendant hasbenefitted from the commission of a relevantoffence;

(b) if he has, the value of the defendant’s benefitfrom the commission of the offence.

(8) The assumptions referred to in subsection (7)

(a) that any property appearing to the court

(i) to be held by the defendant at the dateof conviction or at any time in theperiod between that date and thedetermination in question; or

(ii) to have been transferred to him at anytime since the beginning of therelevant period, was received by him,at the earliest time when he appears tothe court to have held it, as a result ofor in connection with the commissionof the relevant offence;


(b) that any expenditure of his since thebeginning of the relevant period was out ofpayments received by him as a result of or inconnection with the commission of therelevant offence

(c) that for purposes of valuing any benefitwhich he had at any time, he received free ofany other interests in it.

(9) The court shall not make any assumptions inrelation to any particular property or expenditure if

(a) that assumption, so far as it relates to thatproperty or expenditure, is shown to beincorrect in the defendant’s case;

(b) that assumption, so far as it relates, is shownto be correct in relation to a relevant offence,the defendant’s benefit which has beensubject of a previous confiscation order; or

(c) the court is satisfied that there would be aserious risk of injustice in the defendant’scase if the assumption were to be made inrelation to that property or expenditure

(10) Where the court does not make one or more of therequired assumptions, it shall state its reasons

(11) If the court determines that the defendant hasbenefitted from the commission of a relevant offence that is notdrug trafficking in accordance with this section, it shall then


(a) determine in accordance with section 14 theamount to be recovered in his case, and

(b) make an order under this section ordering thedefendant to pay that amount

(12) Where a person is convicted of a relevant offencein any proceedings before a magistrates court and where

(a) it appears to the magistrate that the defendantmay have benefitted and has or may havebenefitted or may have realizable property; or

(b) it appears to the Director of PublicProsecutions that the defendant may havebenefitted and has or may have realizableproperty, on application by the Director ofPublic Prosecutions

the magistrate shall before passing sentence send the case to thecourt for determination as to whether a confiscation order shouldbe made.

Postponeddeterminations.

11.—(1) Where the court is proceeding under section 9 or 10(as the case may be), but considers that it needs moreinformation before,

(a) determining whether the defendant hasbenefitted as mentioned in the section inquestion, or

(b) determining the amount to be recovered fromhim under a confiscation order,


it may, for the purpose of enabling that information to beobtained, postpone making the determination for such period asit may specify.

(2) More than one postponement may be made undersubsection (1).

(3) Unless satisfied that there are exceptionalcircumstances, the court shall not specify a period undersubsection (1) which, by itself or taken together with any otherpostponement under this section, exceeds one year from the dateof conviction.

(4) Where the defendant appeals against his conviction,the court may on that account,

(a) postpone making either or both of thedeterminations mentioned in subsection (1)for such period as it may specify; or

(b) where it has exercised its powers topostpone, extend the specified period.

(5) A postponement or extension under subsection (1)or (4) may be made on the application of the Director of PublicProsecutions or the defence or by the court of its own motion.

(6) Unless the court is satisfied there are exceptionalcircumstances, any postponement or extension under subsection(4) shall not extend beyond three months after the appeal isdetermined or otherwise disposed of.

(7) Where the court exercises its power under thissection it may nevertheless proceed to sentence the defendant inrespect of the offence in question or any such offences; and onmaking a postponed confiscation order by virtue of this section


it may vary any fine or other order involving payment imposedon the defendant in accordance with subsection (5)(b) of section9 or 10 (as the case may be).

Assessingproceeds of drugtrafficking.

12.—(1) For the purposes of this Act,

(a) any payments or other rewards received by aperson at any time (whether before or after thecommencement of this Act) in connection withdrug trafficking carried on by him or anotherperson are his proceeds of drug trafficking; and

(b) the value of his proceeds of drug trafficking isthe aggregate of the values of the payments orother rewards.

(2) Subject to subsections (4) and (5), the court shallmake the required assumptions for the purpose,

(a) of determining whether the defendant hasbenefitted from drug trafficking, and

(b) if he has, of determining the value of hisproceeds of drug trafficking.

(3) The required assumptions are,

(a) that any property appearing to the court,

(i) to have been held by the defendant atany time since his conviction, or

(ii) to have been transferred to him at anytime since the beginning of the periodof six years ending when theproceedings were instituted againsthim,


was received by him as a payment or reward in connection withdrug trafficking carried on by him;

(b) that any expenditure of his since thebeginning of that period was met out ofpayments received by him in connection withdrug trafficking carried on by him;

(c) that, for the purpose of valuing any propertyreceived or assumed to have been receivedby him at any time as such a reward, hereceived the property free of other interests init.

(4) The court shall not make any of the requiredassumptions in relation to any particular property or expenditureif,

(a) that assumption is shown to be incorrect inthe defendant’s case; or

(b) the court is satisfied that there would be aserious risk of injustice in the defendant'scase if that assumption were to be made;

and where the court, by virtue of this subsection, does not makeone of the required assumptions it shall state its reasons.

(5) For the purpose of assessing the value of theproceeds derived by the defendant from drug trafficking in a casewhere a confiscation order has previously been made against himthe court shall leave out of account any such proceeds that areshown to the court to have been taken into account indetermining the amount to be recovered under the previousorder.


Statements ofinformation bythe Director ofPublicProsecutions.

13.—(1) Where the Director of Public Prosecutions asks thecourt to proceed under section 9 or 10 he shall give the court,within such period as it may direct, a statement (a “prosecutor’sstatement”) of matters which he considers relevant in connectionwith,

(a) determining whether the defendant hasbenefitted as mentioned in the section inquestion; or

(b) assessing the value of his proceeds of drugtrafficking or benefit from any relevantoffences.

(2) Where the court proceeds under section 9 or 10without the Director of Public Prosecutions having asked it to doso, it may require him to give it a prosecutor's statement, withinsuch period as it may direct.

(3) Where a prosecutor's statement has been given,

(a) the Director of Public Prosecutions may atany time give the court a further suchstatement; and

(b) the court may at any time require him to giveit a further such statement, within such periodas it may direct.

(4) Where any prosecutor's statement has been givenand the court is satisfied that it has been served on the defendant,it may require the defendant, within such period as it may direct,

(a) to indicate the extent to which he accepts theallegations in the statement; and


(b) so far as he does not accept any suchallegation, to give particulars of any matterson which he proposes to rely;

and the court may for the purposes of the determination andassessment mentioned in subsection (1) treat any acceptance bythe defendant as conclusive of the matters to which it relates.

(5) To the extent that the defendant fails in any respectto comply with a requirement under subsection (4), he may betreated for the purposes of this section as accepting everyallegation in the statement.

(6) Where-

(a) there is tendered to the court by the defendanta statement as to any matters relevant todetermining the amount that might berealized at the time the confiscation order ismade; and

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

the court may, for the purposes of that determination, treat thatacceptance as conclusive of the matters to which it relates.

(7) An allegation may be accepted or a matter indicatedfor the purposes of this section either orally before the court orin writing.

(8) No acceptance by the defendant under this sectionthat proceeds have been derived by him from drug trafficking orfrom any relevant offence shall be admissible in evidence in anyproceedings for an offence.


Provision ofinformation bydefendant.

14.—(1) For the purpose of obtaining information to assist itin carrying out its functions in relation to making a confiscationorder, the court may order the defendant to give it suchinformation in such manner and before such date as may bespecified in the order.

(2) If the defendant fails without reasonable excuse tocomply with any order under this section, the court may drawsuch inference from that failure as it considers appropriate.

(3) Where the Director of Public Prosecutions acceptsto any extent any allegation made by the defendant in giving tothe court information required under this section, the court maytreat that acceptance as conclusive of the matters to which itrelates.

Amount to berecovered.

15.—(1) Subject to subsection (3), the amount to berecovered under a confiscation order shall be the amount thecourt assesses to be the value of the defendant's proceeds of drugtrafficking or benefit from relevant offences (as the case may be).

(2) If the court is satisfied as to any matter relevant fordetermining the amount that might be realized at the time theconfiscation order is made (whether by reason of the acceptanceof an allegation made in a statement given under section 13 ormade in the giving of information under section 14 orotherwise), the court may issue a certificate giving its opinion asto the matters concerned and shall do so if satisfied asmentioned in subsection (3).

(3) If the court is satisfied that the amount that might berealized at the time the confiscation order is made is less than theamount the court assesses to be the value of the defendant'sproceeds of drug trafficking or benefit from relevant offences (as


the case may be), the amount to be recovered under theconfiscation order shall be the amount appearing to the court tobe the amount that might be so realized.

Protection ofthird party rights.

16.—(1) Where an application is made for a confiscationorder, a person who asserts an interest in realizable property mayapply to the court, before the confiscation order is made, for anorder under subsection (2).

(2) If a person applies to the court for an order underthis subsection in respect of his interest in realizable property andthe court is satisfied-

(a) that he was not in any way involved in thedefendant’s criminal conduct; and

(b) that he acquired the interest-

(i) for sufficient consideration; and

(ii) without knowing, and incircumstances that he would not haveformed a reasonable suspicion, that theproperty was, at the time he acquiredit, property that was involved in or wasthe proceeds of criminal conduct,

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

(3) Subject to subsection (4), where a confiscationorder has already been made, a person who asserts an interest inthe property may apply under this subsection to the court for anorder under subsection (2).


(4) Except with the leave of the court, an applicationshall not be made under subsection (3)-

(a) by a person,

(i) who had knowledge of the applicationfor a confiscation order before theorder was made, or

(ii) who appeared at the hearing of thatapplication; or

(b) later than 28 days beginning with the day onwhich the confiscation order was made.

(5) A person who makes an application undersubsection (1) or (3) shall give not less than seven days' writtennotice of the making of the application to the Director of PublicProsecutions who shall be a party to any proceedings on theapplication.

Subsequent proceedings

Reconsiderationof case.

17.—(1) This section applies where a defendant has appearedbefore the High Court to be sentenced in respect of one or moredrug trafficking or relevant offences but the court has not madea confiscation order because either,

(a) it did not proceed under section 9 or 10, or

(b) the court has made a determination undersubsection (2) of section 9 or 10 (“a subsection(2) determination”) that the defendant has notbenefitted from drug trafficking or from anyrelevant offence.


(2) If the Director of Public Prosecutions has evidencethat was not previously available but which he believes wouldhave led the court to determine that the defendant had benefittedfrom drug trafficking or from any relevant offence he may makean application to the court.

(3) On such an application the court shall consider theevidence and if satisfied that the defendant had so benefitted, thecourt shall make a confiscation order and order the payment ofsuch amount as it thinks just in all the circumstances of the case,including in particular the amount of any fine or other orders forpayment imposed on the defendant in respect of the offence oroffences in question.

Revisedassessment ofproceeds ofcriminal conduct.

18.—(1) This section applies where the court has made adetermination of the amount to be recovered under a confiscationorder (“the current determination”).

(2) Where the Director of Public Prosecutions is of theopinion that the real value of the defendant's proceeds of drugtrafficking or benefit from any relevant offences was greater thantheir assessed value, he may apply to the court for the evidenceon which he has formed his opinion to be considered by thecourt.

(3) If, having considered the evidence, the court issatisfied that the real value of the defendant's proceeds of drugtrafficking or benefit from any relevant offences is greater thantheir assessed value (whether because the real value at the timeof the current determination was higher than was thought orbecause the value of the proceeds or benefit in question hassubsequently increased), the court shall make a freshdetermination of the amount to be recovered under a confiscationorder.


(4) In subsections (2) and (3),

“assessed value” means the value of the defendant’sproceeds of drug trafficking or benefit from anyrelevant offences as assessed by the court inaccordance with section 15(1) of this Act; and

“real value” means-

(a) the value of the defendant's proceeds of drugtrafficking which took place in the period byreference to which the current determinationwas made or in any earlier period; or

(b) the value of his benefit from any of therelevant offences mentioned in section 10(2).

(5) Any determination by virtue of this section shall beby reference to the amount that might be realized at the timewhen the determination is made.

(6) For the avoidance of doubt, section 12(5) shall notapply in relation to any of the defendant's proceeds of drugtrafficking taken into account in respect of the currentdetermination.

(7) If, as a result of making the fresh determinationrequired by subsection (3), the amount to be recovered exceedsthe amount set by the current determination, the court maysubstitute for the amount to be recovered under the confiscationorder such greater amount as it thinks just in all thecircumstances of the case.


(8) Where the court varies a confiscation order byvirtue of this section it shall substitute for the term ofimprisonment in default fixed under section 25(1) in respect ofthe amount to be recovered under the order such longer term asmay be determined in accordance with that section in respect ofthe greater amount to be recovered under the order as varied.

Reconsideration etc:supplementary.

19.—(1) On an application under section 17 or 18, the courtmay take into account any payment or other reward received bythe defendant on or after the date,

(a) of the conviction (in the case of an applicationunder section 17 by virtue of subsection (1)(a));

(b) of the subsection (2) determination (in the caseof an application under section 17 by virtue ofsubsection (1)(b)); or

(c) of the current determination (in the case of anapplication under section 18);

but only if the Director of Public Prosecutions shows that it wasreceived by the defendant in connection with drug traffickingcarried on, or with any relevant offence committed, on or beforethat date.

(2) In considering any evidence which relates to anypayment or reward in relation to drug trafficking to whichsubsection (1) applies, the court shall not make the assumptionswhich would otherwise be required by section 12.

(3) No application shall be entertained by the courtunder section 17 or 18 if it is made after the end of the period ofsix years beginning with the date on which the defendant wasconvicted, or where the application relates to more than oneconviction, the date of the latest conviction.


(4) Sections 13 and 14 apply, with such modificationsas may be necessary, in relation to applications under sections 17and 18 as they apply in relation to proceedings under sections 9and 10.

Increase inrealizableproperty.

20.—(1) This section applies where, by virtue of section15(3), the amount which a person is ordered to pay under aconfiscation order is less than the amount assessed to be hisproceeds of drug trafficking or benefit from relevant offences (asthe case may be).

(2) If, on an application made,

(a) by the Director of Public Prosecutions, or

(b) by a receiver appointed under section 28 or31 in relation to the realizable property of theperson in question,

the court is satisfied that the amount that might be realized in thecase of the person in question is greater than the amount takeninto account in making the confiscation order (whether it wasgreater than was thought when the confiscation order was madeor has subsequently increased), the court shall issue a certificateto that effect, giving its reasons.

(3) Where a certificate has been issued the Director ofPublic Prosecutions may apply to the court for an increase in theamount to be recovered under the confiscation order; and on thatapplication the court may-

(a) substitute for that amount such amount notexceeding the amount assessed as the valuereferred to in subsection (1) as appears to thecourt to be appropriate having regard to theamount now shown to be realizable; and


(b) increase the term of imprisonment fixed inrespect of the confiscation order undersection 25(1) if the effect of the substitutionis to increase the maximum period applicablein relation to the order under that section.

Inadequacy ofrealizableproperty.

21.—(1) If, on an application made in respect of aconfiscation order,

(a) by the defendant; or

(b) by a receiver appointed under section 28 or 31,

the court is satisfied that the realizable property is inadequate forthe payment of any amount remaining to be recovered under theorder, the court shall issue a certificate to that effect, giving itsreasons.

(2) For the purposes of subsection (1)-

(a) in the case of realizable property held by aperson who has been adjudged bankrupt, thecourt shall take into account the extent towhich any property held by him may bedistributed among creditors; and

(b) the court may disregard any inadequacy inthe realizable property which appears to thecourt to be attributable, wholly or partly, toanything done by the defendant for thepurpose of preserving any property held by aperson to whom the defendant had, directlyor indirectly, made a gift caught by this Actfrom any risk of realization under this Act.


(3) Where a certificate has been issued undersubsection (1), the person who applied for it may apply to thecourt which made the confiscation order for the amount to berecovered under the order to be reduced.

(4) The court shall, on an application under subsection(3)-

(a) substitute for the amount to be recoveredunder the order such lesser amount as thecourt thinks just in all the circumstances ofthe case; and

(b) substitute for the term of imprisonment indefault fixed under section 25(1) in respect ofthe amount to be recovered under the order ashorter term if such is determined inaccordance with that section in respect of thelesser amount to be recovered under the orderas varied.

(5) Any person appearing to the court to be likely to beaffected by any exercise of its powers under this section shall beentitled to appear before the court and make representations.

Absconded persons etc

Confiscationorder wheredefendant hasabsconded ordied.

22.—(1) Where a person has been convicted of one or moredrug trafficking or relevant offences, on the application of theDirector of Public Prosecutions the court may make aconfiscation order against him if satisfied that he has abscondedor died.

(2) Where proceedings for one or more drug traffickingor relevant offences have been instituted but not concluded, onthe application of the Director of Public Prosecutions the court


may make a confiscation order against the defendant if satisfiedthat he has absconded, but shall not do so until after the periodof one year beginning with the date which is, in the opinion ofthe court, the date on which the defendant absconded.

(3) In any proceedings under this section,

(a) section 12(2) shall not apply;

(b) section 13 shall apply with the omission ofsubsections (4) to (6);

(c) the court shall not make a confiscation orderagainst a defendant unless it is satisfied thatthe Director of Public Prosecutions has takenreasonable steps to contact him; and

(d) any person appearing to the court to be likelyto be affected by the making of a confiscationorder shall be entitled to appear before thecourt and make representations.

(4) Where an application has been made to the courtunder this section in relation to a defendant who has abscondedand the court has decided not to make a confiscation orderagainst him, section 17 shall not apply at any time while heremains an absconder.

Variation oforder madeagainstabsconder.

23.—(1) Where a confiscation order is made by virtue ofsection 22(2) and the defendant ceases to be an absconder, hemay apply to the court for a variation of the amount to berecovered under the order.


(2) If on such an application the court is satisfied thatthe value of the defendant's proceeds of drug trafficking in theperiod by reference to which the determination in question wasmade, or the value of his benefit from relevant offences, or theamount that might have been realized at the time the order wasmade, was less than the amount ordered to be paid under theconfiscation order, the court,

(a) may if it considers it just in all thecircumstances reduce the amount to berecovered under the confiscation order, and

(b) if it does so, shall reduce the term ofimprisonment in default in accordance withsection 25(1).

(3) Where the court reduces the amount to be recoveredunder a confiscation order it may, on the application of a personwho held property which was realizable property, ordercompensation to be paid to him if satisfied that he has sufferedloss as a result of the making of the confiscation order and if,having regard to all the circumstances of the case, it considers itappropriate to do so.

(4) No application shall be entertained by the court ifit is made after the end of six years beginning on the day onwhich the confiscation order was made.

Discharge oforder whereabsconderacquitted etc.

24.—(1) Where a confiscation order is made by virtue ofsection 22(2) and the defendant is subsequently tried for theoffence or offences in question and acquitted on all counts, thecourt shall cancel the confiscation order.


(2) Where a confiscation order is made by virtue ofsection 22(2) against a person who ceases to be an absconder andsubsection (1) of this section does not apply, the court may onthe application of the defendant cancel the confiscation order ifsatisfied that,

(a) there has been undue delay in continuing theproceedings in respect of which the powerunder section 22(2) of this Act wasexercised; or

(b) the Director of Public Prosecutions does notintend to proceed with the prosecution.

(3) Where the court cancels a confiscation order underthis section it may, on the application of a person who heldproperty which was realizable property, order compensation tobe paid to him if satisfied that he has suffered loss as a result ofthe making of the confiscation order and if, having regard to allthe circumstances of the case it considers it appropriate to do so.

(4) Where the court cancels a confiscation order underthis section it may make such consequential or incidental orderas it thinks fit.

PART III

ENFORCEMENT OF CONFISCATION ORDERS

Default powers

Imprisonment indefault.

25.—(1) Where the court orders the defendant to pay anamount under a confiscation order it shall in addition direct himto be imprisoned in default of payment of any amount under theconfiscation order as follows-


(a) if the amount does not exceed $20,000, for aterm not exceeding 2 years;

(b) if the amount exceeds $20,000 but does notexceed $50,000, for a term not exceeding 5years;

(c) if the amount exceeds $50,000 but does notexceed $100,000, for a term not exceeding 7years; and

(d) if the amount exceeds $100,000, for a term notexceeding 10 years.

(2) Where-

(a) a warrant to commit the defendant to prisonis issued for a default in payment of anamount ordered to be paid under aconfiscation order in respect of an offence oroffences; and

(b) at the time the warrant is issued, thedefendant is liable to serve any term ofimprisonment in respect of the offence oroffences,

the term of imprisonment to be served in default of payment ofthe amount shall not begin to run until after the term mentionedin paragraph (b).

(3) Where a defendant serves a term of imprisonmentin default of paying any amount due under a confiscation order,his serving that term does not expunge the debt or prevent theconfiscation order from continuing to have effect, so far as anyother method of enforcement is concerned.


Interest onunpaid sums.

26.—(1) If any sum required to be paid by a person under aconfiscation order is not paid when it is required to be paid, thatperson shall be liable to pay interest on that sum for the periodfor which it remains unpaid; and the amount of interest shall forthe purposes of enforcement, be treated as part of the amount tobe recovered from him under the confiscation order.

(2) The court may, on the application of the Director ofPublic Prosecutions, increase the term of imprisonment fixed inrespect of the confiscation order if the effect of subsection (1) isto increase the maximum period applicable in relation to theorder under section 25(1).

(3) The rate of interest under subsection (1) shall bethat for the time being applying to a judgment debt under theCivil Procedure Rules.

Restraint and charging orders

Cases in whichrestraint andcharging ordersmay be made.

27.—(1) The powers conferred on the High Court by section28 to make a restraint order and by section 29 to make acharging order are exercisable where-

(a) proceedings have been instituted against thedefendant for a drug trafficking or relevantoffence or an application has been made inrespect of the defendant under section 17, 18, 20or 22;

(b) the proceedings have not, or the application hasnot been concluded;

(c) the court is satisfied that there is reasonablecause to believe that,


(i) in the case of an application under section18 or 20 of this Act, that the court will besatisfied as mentioned in section 18(3) or20(2); or

(ii) in any other case, that the defendant hasbenefitted from drug trafficking or fromany relevant offence (as the case may be).

(2) The court shall not exercise those powers if it issatisfied that there has been undue delay in continuing theproceedings or application in question, or that it is not intendedto proceed with the prosecution.

(3) Those powers are also exercisable where the courtis satisfied-

(a) that a person is to be charged with a drugtrafficking or relevant offence or anapplication as mentioned in subsection (1)(a)is to be made; and

(b) the court is satisfied as mentioned insubsection (1)(c).

(4) For the purposes of sections 28 and 29, at any timewhen those powers are exercisable before proceedings have beeninstituted-

(a) references in this Act to the defendant shallbe construed as references to the personreferred to in subsection (3)(a); and

(b) references in this Act to realizable propertyshall be construed as if, immediately beforethat time, proceedings had been institutedagainst the person referred to in subsection(2) for a drug trafficking or relevant offence.


(5) Where the court has made a restraint or chargingorder by virtue of subsection (3), the court shall discharge theorder if proceedings in respect of the offence are not instituted,or if the application is not made, within such time as the courtconsiders reasonable.

Restraint orders. 28.—(1) The court may make a restraint order to prohibit anyperson from dealing with any realizable property, subject to suchconditions and exceptions as may be specified in the order.

(2) A restraint order may apply-

(a) to all realizable property held by a specifiedperson, whether the property is described inthe order or not; and

(b) to realizable property held by a specifiedperson, being property transferred to himafter the making of the order.

(3) This section shall not have effect in relation to anyproperty for the time being subject to a charge under section 29of this Act.

(4) A restraint order-

(a) may be made only on an application by theDirector of Public Prosecutions;

(b) may be made on an ex parte application to aJudge in chambers; and

(c) shall provide for notice to be given to personsaffected by the order.


(5) A restraint order-

(a) may, on the application of any personaffected by the order, be discharged or variedin relation to any property; and

(b) shall be discharged when proceedings for theoffence are concluded.

(6) Where the court has made a restraint order, thecourt-

(a) may at any time appoint a receiver-

(i) to take possession of any realizableproperty; and

(ii) in accordance with the directions ofthe court, to manage or otherwise dealwith any property in respect of whichhe is appointed,

subject to such exceptions and conditions as may be specified bythe court; and

(b) may require any person having possession ofproperty in respect of which the receiver isappointed under this section to givepossession of it to the receiver.

(7) For the purposes of this section, dealing withproperty held by any person includes (without prejudice to thegenerality of the expression)-


(a) where a debt is owed to that person, makinga payment to any person in reduction of theamount of the debt; and

(b) removing the property from Grenada.

(8) Where the court has made a restraint order, a policeofficer may seize any realizable property for the purpose ofpreventing its removal from Grenada; and property so seizedshall be dealt with in accordance with the directions of the court.

Charging orders. 29.—(1) For the purposes of this Act, a charging order is anorder made under this section imposing on any such realizableproperty as may be specified in the order a charge for securingthe payment of money to the Crown.

(2) The court may make a charging order on realizableproperty for securing the payment to the Crown-

(a) where a confiscation order has been made, ofan amount not exceeding the amount payableunder the confiscation order; and

(b) where a confiscation order has not beenmade, of an amount equal to the value fromtime to time of the property charged.

(3) A charging order-

(a) may be made only on an application by theDirector of Public Prosecutions; and

(b) may be made on an ex parte application to aJudge in chambers.


(4) Subject to subsection (6), a charge may be imposedby a charging order only on-

(a) any interest in realizable property, which isan interest held beneficially by the defendantor by a person to whom the defendant hasdirectly or indirectly made a gift caught bythis Act-

(i) in any chargeable asset; or

(ii) under any trust; or

(b) any interest in realizable property held by aperson as trustee of a trust if the interest is ina chargeable asset or is an interest underanother trust and a charge may, by virtue ofparagraph (a), be imposed by a chargingorder on the whole beneficial interest underthe first-mentioned trust.

(5) In this section,

(a) “chargeable asset” means any of thefollowing,

(i) any land in Grenada;(ii) any relevant securities;(iii) any motor vehicle;(iv) any vessel;(v) any aircraft;(vi) any other type of asset which the

Minister of Finance may prescribe forthe purposes of this section; and


(b) “relevant securities” means any of thefollowing,

(i) securities of the government or of anypublic authority;

(ii) stock of any body incorporated inGrenada;

(iii) stock of any body incorporated outsideGrenada or of any country or territoryoutside Grenada, being stockregistered in a register kept at anyplace within Grenada;

(iv) options in relation to stock describedin sub-paragraphs (ii) or (iii);

(v) units of any unit trust in respect ofwhich a register of the unit holders iskept at any place in Grenada.

(6) In any case where a charge is imposed by a chargingorder on any interest in any relevant securities, the court mayprovide for the charge to extend to any interest or dividendpayable in respect of them.

(7) Where the court has made a charging order, thecourt may give such directions to such person as the court thinksfit to safeguard the assets under the charging order.

(8) The court-

(a) may, on the application of any personaffected by the charging order, make an orderdischarging or varying it; and


(b) shall make an order discharging the chargingorder if the proceedings for the offence areconcluded or on payment into court of theamount which is secured by the charge.

Charging orders:supplementary.

30.—(1) A charging order may be made either absolutely orsubject to conditions including in particular conditions-

(a) as to notifying any person holding any interest inthe property to which the order relates; or

(b) as to the time when the charge is to becomeenforceable.

(2) Notice of any charging order shall be deposited inthe High Court Registry for recording and registration inaccordance with section 23 of the Civil Procedure Rules.

(3) Subject to any provision made under section 31, acharge imposed by a charging order shall have the like effect andshall be enforceable in the same manner as an equitable chargecreated by the person holding the beneficial interest or, as thecase may be, the trustees by writing under their hand.

Realization of property

Realization ofproperty.

31.—(1) The court may, on an application by the Director ofPublic Prosecutions, exercise the powers conferred by thissection, where a confiscation order has been made and it isneither satisfied nor subject to appeal.

(2) The court may appoint a receiver in respect ofrealizable property.


(3) The court may empower the receiver appointedunder this section or section 28 or in pursuance of a chargingorder-

(a) to enforce any charge imposed under section29 on realizable property or on interest ordividends payable in respect of suchproperty; and

(b) in relation to any realizable property otherthan property for the time being subject to acharge under section 29, to take possession ofthe property subject to such conditions orexceptions as may be specified by the court.

(4) The court may order any person having possessionof realizable property to give possession of it to the receiver.

(5) The court may empower the receiver to realize anyrealizable property in such manner as the court may direct.

(6) The court-

(a) may order any person holding an interest inrealizable property to make such payment tothe receiver in respect of any beneficialinterest held by the defendant or, as the casemay be, the recipient of a gift caught by thisAct as the court may direct; and

(b) may, on the payment being made, by ordertransfer, grant or extinguish any interest inthe property.


(7) Subsections (4) to (6) shall not apply to property forthe time being subject to a charge under section 29 of this Act orany other Act in force in Grenada.

(8) The court shall not in respect of any propertyexercise the powers conferred by subsection (3)(a), (5) or (6)unless a reasonable opportunity has been given for personsholding any interest in the property to make representations tothe court.

Application ofproceeds ofrealization etc.

32.—(1) The following sums in the hands of the receiverpursuant to section 28 or 31 or in pursuance of a charging order-

(a) the proceeds of the enforcement of any chargeimposed under section 29;

(b) the proceeds of the realization, other than by theenforcement of such a charge, of any propertyunder section 28 or 31; and

(c) any other sums, being property held by thedefendant,

shall, after such payments (if any) as the court may direct havebeen made out of those sums, be applied on the defendant’sbehalf towards the satisfaction of the confiscation order.

(2) If, after the amount payable under the confiscationorder has been fully paid, any such sums remain in the hands ofthe receiver, he shall distribute those sums-

(a) among such of those who held propertywhich has been realized under this Act; and

(b) in such proportions,


as the court may direct after giving a reasonable opportunity forsuch persons to make representations to the court.

Exercise ofpowers for therealization ofproperty.

33.—(1) This section shall apply to the powers conferred onthe court by sections 28 to 32 or on the receiver pursuant tosection 28 or 31 or in pursuance of a charging order.

(2) Subject to subsections (3) to (6), the powers shall beexercised with a view to making available for satisfying theconfiscation order or (as the case may be) any confiscation orderthat may be made in the defendant's case, the value for the timebeing of realizable property held by any person by the realizationof such property.

(3) In the case of realizable property held by a personto whom the defendant has, directly or indirectly, made a giftcaught by this Act, the powers shall be exercised with a view torealizing no more than the value for the time being of the gift.

(4) The powers shall be exercised with a view toallowing any person other than the defendant or the recipient ofany such gift to retain or recover the value of any property heldby him.

(5) In exercising those powers, no account shall betaken of any obligations of the defendant or of the recipient ofany such gift which conflict with the obligation to satisfy theconfiscation order.

(6) An order may be made or other action taken inrespect of a debt owed by the Crown.

Receivers:supplementary.

34.—(1) Where a receiver appointed under section 28 or 31or in pursuance of a charging order-


(a) takes any action in relation to property which isnot realizable property, being action which hewould be entitled to take if it were suchproperty, and

(b) believes and has reasonable grounds forbelieving, that he is entitled to take that action inrelation to that property,

he shall not be liable to any person in respect of any loss ordamage resulting from his action, except in so far as the loss ordamage is caused by his negligence.

(2) Any amount due in respect of the remuneration andexpenses of a receiver so appointed shall be paid out of theForfeiture Fund.

Insolvency

Bankruptcy ofdefendant.

35.—(1) Where a person who holds realizable property isadjudged bankrupt-

(a) property for the time being subject to a restraintorder made before the order adjudging himbankrupt; and

(b) any proceeds of property realized by virtue ofsection 28(6) or 31(5) or (6) for the time beingin the hands of a receiver appointed undersection 28 or 31,

shall be excluded from the bankrupt's estate for the purposes ofthe Bankruptcy Act Cap. 27.


(2) Where a person has been adjudged bankrupt, thepowers conferred on the court by sections 28 to 32 or on areceiver shall not be exercised in relation to property for the timebeing comprised in the property of the bankrupt for the purposesof the Bankruptcy Act Cap. 27.

(3) Nothing in the Bankruptcy Act Cap. 27 shall betaken as restricting, or enabling the restriction of, the exercise ofthose powers referred to in subsection (2).

(4) Subsection (2) shall not affect the enforcement ofa charging order-

(a) made before the order adjudging the personbankrupt; or

(b) on property which was subject to a restraintorder when the order adjudging him bankruptwas made.

(5) Where, in the case of a debtor, the receiverconstituted by virtue of section 9 of the Bankruptcy Act Cap. 27or an interim receiver stands appointed under section 10 of theBankruptcy Act Cap. 27, and any property of the debtor issubject to a restraint order-

(a) the powers conferred on the receiver byvirtue of that Act shall not apply to propertyfor the time being subject to the restraintorder; and

(b) any such property in the hands of the receivershall, subject to a lien for any expenses(including his remuneration) properlyincurred in respect of the property, be dealtwith in such manner as the court may direct.


(6) Where a person is adjudged bankrupt and hasdirectly or indirectly made a gift caught by this Act,

(a) no order shall be made by virtue of section44 or 45 of the Bankruptcy Act Cap. 27(avoidance of certain settlements etc) inrespect of the making of the gift at any timewhen,

(i) proceedings for the drug trafficking orrelevant offence have been institutedagainst him and have not beenconcluded;

(ii) an application has been made inrespect of the defendant under section17, 18, 20 or 22 of this Act and has notbeen concluded; or

(iii) property of the person to whom thegift was made is subject to a restraintorder or a charging order; and

(b) any order made by virtue of section 33 or 45of the Bankruptcy Act Cap. 27 after theconclusion of the proceedings shall take intoaccount any realization under this Act ofproperty held by the person to whom the giftwas made.

Winding up ofcompany holdingrealizableproperty.

36.—(1) Where realizable property is held by a company andan order for the winding up of the company has been made or aresolution has been passed by the company for the voluntarywinding up, the functions of the liquidator shall not beexercisable in relation to-


(a) property for the time being subject to a restraintorder made before the relevant time; and

(b) any proceeds of property realized by virtue ofsection 28(6) or 31(5) or (6) for the time being inthe hands of a receiver appointed under section28 or 31,

but there shall be payable out of such property any expenses(including the remuneration of the liquidator) properly incurredin the winding up in respect of the property.

(2) Where, in the case of a company, such an order hasbeen made or such a resolution has been passed, the powersconferred on the court by sections 28 to 32 or on a receiver soappointed shall not be exercised in relation to any realizableproperty held by the company in relation to which the functionsof the liquidator are exercisable-

(a) so as to inhibit him from exercising thosefunctions for the purpose of distributing anyproperty held by the company to thecompany's creditors; or

(b) so as to prevent the payment out of anyproperty of expenses (including theremuneration of the liquidator) properlyincurred in the winding up in respect of theproperty.

(3) Nothing in the Companies Act 1994 or theInternational Companies Act, 1990 (Cap. 152) shall be taken asrestricting, or enabling the restriction of, the exercise of thosepowers referred to in subsection (2).


(4) Subsection (2) shall not affect the enforcement ofa charging order made before the relevant time or on propertywhich was subject to a restraint order at the relevant time.

(5) In this section-

“company” means any company which may be woundup under the Companies Act 1994 or theInternational Business Companies Act 1990,(Cap. 152);

“liquidator” includes any person appointed to theoffice of liquidator (whether provisionally orotherwise) under the Companies Act 1994 or theInternational Companies Act 1990, (Cap. 152);

“the relevant time” means-

(a) where no order for the winding up of thecompany has been made, the time of the passingof the resolution for voluntary winding up;

(b) where-

(i) such an order has been made; but

(ii) before the presentation of the petition forthe winding up of the company by courtorder, such a resolution had been passedby the company, the time of the passing ofthe resolution; and

(c) in any other case where such an order has beenmade, the time of the making of the order.


PART IV

INFORMATION GATHERING POWERS

Productionorders.

37.—(1) For the purpose of an investigation into,

(a) drug trafficking,

(b) a relevant offence

(c) whether any person has benefitted from criminalconduct, or

(d) the whereabouts of any proceeds of criminalconduct,

a police officer may apply to the High Court for an order undersubsection (2) (a “production order”) in relation to particularmaterial or material of a particular description.

(2) The court may, if it is satisfied on such anapplication that the conditions in subsection (4) are fulfilled,make a production order requiring the person who appears to thecourt to be in possession of the material to which the applicationrelates-

(a) to produce it to a police officer for him totake away; or

(b) to give a police officer access to it,

within such period as the order may specify.

This subsection has effect subject to section 40(10).

(3) The period to be specified in a production ordershall be seven days unless it appears to the court that a longer orshorter period would be appropriate in the particularcircumstances of the application.


(4) The conditions referred to in subsection (2) are-

(a) that there are reasonable grounds forsuspecting that a specified person hascommitted a drug trafficking offence orrelevant offence or has benefitted fromcriminal conduct;

(b) that there are reasonable grounds forsuspecting that the material to which theapplication relates-

(i) is likely to be of substantial value(whether by itself or together withother material) to the investigation forthe purpose of which the application ismade; and

(ii) does not consist of or include itemssubject to legal privilege; and

(c) that there are reasonable grounds forbelieving that it is in the public interest,having regard-

(i) to the benefit likely to accrue to theinvestigation if the material isobtained; and

(ii) to the circumstances under which theperson in possession of the materialholds it,


that the material should be produced or that access to it shouldbe given.

(5) Where the court makes a production order undersubsection (2)(b) in relation to material on any premises, it may,on the same or a subsequent application of the police officer,order any person who appears to him to be entitled to grant entryto the premises to allow a police officer to enter the premises toobtain access to the material.

(6) An application under subsection (1) or (5) may bemade ex parte to a judge in Chambers.

(7) Where the material, to which an application underthis section relates, consists of information contained in oraccessible by means of a computer-

(a) a production order under subsection (2)(a)shall have effect as an order to produce thematerial in a form in which it can be takenaway and in which it is visible and legible;and

(b) a production order under subsection (2)(b)shall have effect as an order to give access tothe material in a form in which it is visibleand legible.

(8) A production order-

(a) shall not confer any right to production of, oraccess to, items subject to legal privilege;

(b) shall have effect notwithstanding anyobligation as to secrecy or other restrictionupon the disclosure of information imposedby statute or otherwise; and


(c) may be made in relation to material in thepossession of a Government Department.

(9) A police officer may photograph or make copies ofany material produced or to which access is given under thissection.

(10) Rules of court may make provision as to,

(a) the discharge and variation of productionorders; and

(b) proceedings in relation to such orders.

(11) Where the investigation into whether a person hasbenefitted from criminal conduct or the whereabouts of theproceeds of criminal conduct relates to a relevant offence whichwas not committed in Grenada, an application under subsection(1) shall not be made unless the provisions of the MutualAssistance in Criminal Matters Act (Grenadian evidence for useoverseas) have been complied with.

Failure to complywith productionorder.

38.—(1) Where a person is required by a production order toproduce any material to a police officer or give a police officeraccess to any material, the person shall be guilty of an offenceunder this section if he-

(a) contravenes the order without reasonableexcuse; or

(b) in purported compliance with the order producesor makes available any material known to theperson to be false or misleading in a materialparticular without-


(i) indicating to the police officer towhom the material is produced ormade available that the material isfalse or misleading and the respect inwhich the material is false ormisleading; and

(ii) providing correct information to thepolice officer if the person is inpossession of, or can reasonablyacquire, the correct information.

(2) A person guilty of an offence under this sectionshall be liable on summary conviction to imprisonment for twoyears or a fine of $100,000 or both.

Search warrants. 39.—(1) For the purpose of an investigation into,

(a) drug trafficking,(b) a relevant offence(c) whether any person has benefitted from criminal

conduct, or(d) the whereabouts of any proceeds of criminal

conduct,

a police officer may apply to a magistrate for a warrant underthis section in relation to specified premises.

(2) On such an application, the magistrate may issue awarrant authorizing a police officer to enter and search thepremises if the court is satisfied-

(a) that a production order made in relation tomaterial on the premises has not beencomplied with;


(b) that the conditions in subsection (3) arefulfilled; or

(c) that the conditions in subsection (4) arefulfilled.

(3) The conditions referred to in subsection (2)(b) are-

(a) that there are reasonable grounds forsuspecting that a specified person has carriedon drug trafficking, a relevant offence or hasbenefitted from criminal conduct;

(b) that the conditions in section 37(4)(b) and (c)are fulfilled in relation to any material on thepremises; and

(c) that it would not be appropriate to make anorder under that section in relation to thematerial because-

(i) it is not practicable to communicatewith any person entitled to produce thematerial;

(ii) it is not practicable to communicatewith any person entitled to grantaccess to the material or entitled togrant entry to the premises on whichthe material is situated; or

(iii) the investigation for the purposes ofwhich the application is made mightbe seriously prejudiced unless a policeofficer could secure immediate accessto the material.


(4) The conditions referred to in subsection (2)(c) are,

(a) that there are reasonable grounds forsuspecting that a specified person hascommitted a drug trafficking offence or arelevant offence or has benefitted fromcriminal conduct;

(b) that there are reasonable grounds forsuspecting that there is on the premises anysuch material relating,

(i) to the specified person;

(ii) to drug trafficking;

(iii) to a relevant offence;

(iv) to the question whether that person has

benefitted from criminal conduct; or

(v) to any question as to the extent or

whereabouts of any proceeds of

criminal conduct,

as is likely to be of substantial value (whether by itself ortogether with other material) to the investigation for the purposefor which the application is made, but that the material cannot atthe time of the application be particularized; and

(c) that-

(i) it is not practicable to communicatewith any person entitled to grant entryto the premises;

(ii) entry to the premises will not begranted unless a warrant is produced;or


(iii) the investigation for the purposes ofwhich the application is made might beseriously prejudiced unless a policeofficer arriving at the premises couldsecure immediate entry to them.

(5) Where a police officer has entered premises in theexecution of a warrant issued under this section, he may seizeand retain any material, other than items subject to legalprivilege, which is likely to be of substantial value (whether byitself or together with other material) to the investigation for thepurpose of which the warrant was issued.

(6) A police officer may photograph or make copies ofany material seized under this section.

(7) A person who hinders or obstructs a police officerin the execution of a warrant issued under this section is guiltyof an offence and liable on summary conviction toimprisonment for two years or a fine of $100,000 or both.

(8) Where the investigation into whether a person hasbenefitted from criminal conduct or the whereabouts of theproceeds of criminal conduct relates to a relevant offence whichwas not committed in Grenada, an application under subsection(1) shall not be made unless the provisions of the MutualAssistance in Criminal Matters Act, 1993 (Grenadian evidencefor use overseas) have been complied with.

Disclosure ofinformation byGovernmentDepartments.

40.—(1) Subject to subsection (4), the High Court may, on anapplication by a police officer, order any material mentioned insubsection (3) which is in the possession of a GovernmentDepartment to be produced to the court within such period as thecourt may specify.

(2) The power to make an order under subsection (1) isexercisable if-


(a) the powers conferred on the court to make arestraint order or a charging order areexercisable by virtue of section 27(1); or

(b) those powers are exercisable by virtue ofsection 27(3) and the court has made arestraint or charging order which has notbeen discharged,

but where the power to make an order under subsection (1) isexercisable by virtue only of paragraph (b), section 27(4) shallapply for the purposes of this section as it applies for thepurposes of sections 28 and 29.

(3) The material referred to in subsection (1) is anymaterial which-

(a) has been submitted to an officer of aGovernment Department by the defendant orby a person who has at any time heldproperty which was realizable property;

(b) has been made by an officer of a GovernmentDepartment in relation to the defendant orsuch a person; or

(c) is correspondence which passed between anofficer of a Government Department and thedefendant or such a person,

and an order under that subsection may require the production ofall such material, or of a particular description of such material,in the possession of the body concerned.


(4) An order under subsection (1) shall not require theproduction of any material unless it appears to the court that thematerial is likely to contain information that would facilitate theexercise of the powers conferred on the court by section 28, 29or 31 or on a receiver appointed under section 28 or 31 or inpursuance of a charging order.

(5) The court may by order authorize the disclosure tosuch a receiver of any material produced under subsection (1) orany part of such material; but the court shall not make an orderunder this subsection unless a reasonable opportunity has beengiven for an officer of the Government Department to makerepresentations to the court.

(6) Material disclosed in pursuance of an order undersubsection (5) may, subject to any conditions contained in theorder, be further disclosed for the purposes of the functionsunder this Act of the receiver or the court.

(7) The court may by order authorize the disclosure toa police officer of any material produced under subsection (1) orany part of such material; but the court shall not make an orderunder this subsection unless-

(a) a reasonable opportunity has been given foran officer of the Government Department tomake representations to the court; and

(b) it appears to the court that the material islikely to be of substantial value in exercisingfunctions relating to criminal conduct.

(8) Material disclosed in pursuance of an order undersubsection (7) may, subject to any conditions contained in theorder, be further disclosed for the purposes of functions relatingto criminal conduct.


(9) Material may be produced or disclosed in pursuanceof this section notwithstanding any obligation as to secrecy orother restriction upon the disclosure of information imposed bystatute or otherwise.

(10) An order under subsection (1) and, in the case ofmaterial in the possession of a Government Department, aproduction order, may require any officer of the GovernmentDepartment (whether named in the order or not) who may for thetime being be in possession of the material concerned to complywith it, and such an order shall be served as if the proceedingswere civil proceedings against the department.

Monitoringorders.

41.—(1) A police officer may apply to the High Court for anorder (“a monitoring order”) directing a financial institution togive to a police officer information obtained by the institutionabout transactions conducted through an account held by aparticular person with the institution.

(2) An application for a monitoring order shall be madeex parte to a judge in Chambers and shall be supported byaffidavit.

(3) A monitoring order shall apply in relation totransactions conducted during the period specified in the order,commencing not earlier than the day on which notice of the orderis given to the financial institution and ending not later than threemonths after the day on which the order is made.

(4) A monitoring order shall not be made unless thecourt is satisfied that there are reasonable grounds for suspectingthat the person in respect of whom the information is sought,

(a) has committed or is about to commit a drugtrafficking offence or a relevant offence;


(b) was involved in the commission, or is aboutto be involved in the commission, of such anoffence; or

(c) has benefitted directly or indirectly or isabout to benefit directly or indirectly from thecommission of such an offence.

(5) A monitoring order shall specify,

(a) the name or names in which the account isbelieved to be held;

(b) the nature of the information which theinstitution is required to give; and

(c) the manner in which the information is to begiven.

(6) A person who knowingly,

(a) contravenes a monitoring order; or

(b) provides false or misleading information inpurported compliance with the order,

shall be guilty of an offence and liable on summary convictionto imprisonment for two years or a fine of $100,000 or both.

(7) A reference in this section to a transactionconducted through an account includes a reference,

(a) to the making of a fixed term deposit;

(b) to the transfer of an amount so deposited orany part of it at the end of the term; and


(c) to the existence or use of a deposit box heldby the institution.

(8) The provision of information to a police officer byvirtue of a monitoring order shall not be treated as a breach ofany restriction upon the disclosure of information imposed bystatute or otherwise and shall not give rise to any criminal, civilor administrative liability.

Offence ofprejudicing aninvestigation.

42.—(1) Where in relation to an investigation into criminalconduct,

(a) a production order has been made, or has beenapplied for and has not been refused;

(b) a warrant under section 39 has been issued; or

(c) a monitoring order has been made,

a person is guilty of an offence if, knowing or suspecting thatthe investigation is taking place, he makes any disclosurewhich is likely to prejudice the investigation or reveal theexistence of the monitoring order.

(2) In proceedings against a person for an offence underthis section, it is a defence to prove-

(a) that he did not know or suspect that thedisclosure was likely to prejudice theinvestigation or reveal the existence of themonitoring order; or

(b) that he had lawful authority or reasonableexcuse for making the disclosure.

(3) Nothing in subsection (1) makes it an offence for abarrister or solicitor to disclose any information or other matter-


(a) to, or to a representative of, a client of his inconnection with the giving by the barrister orsolicitor of legal advice to the client; or

(b) to any person-

(i) in contemplation of, or in connectionwith, legal proceedings; and

(ii) for the purpose of those proceedings;

but this subsection does not apply in relation to any informationor other matter which is disclosed with a view to furthering anycriminal purpose.

(4) A person who commits an offence under thissection shall be liable-

(a) on summary conviction to imprisonment fortwo years or a fine of $100,000 or both; and

(b) on conviction on indictment to imprisonmentfor five years or a fine of $500,000 or both.

PART V

MONEY LAUNDERING

Offences

Concealing ortransferringproceeds ofcriminalconduct.

43.—(1) A person is guilty of an offence if he knowingly-

(a) conceals or disguises any property which is, orin whole or in part directly or indirectlyrepresents, his proceeds of criminal conduct, or


(b) converts or transfers that property, brings it intoor removes it from Grenada;

for the purpose of avoiding prosecution for a drug trafficking orrelevant offence or the making or enforcement in his case of aconfiscation order.

(2) A person is guilty of an offence if, knowing orhaving reasonable grounds to suspect that any property is, or inwhole or in part directly or indirectly represents, another person'sproceeds of criminal conduct, he-

(a) conceals or disguises that property, or

(b) converts or transfers that property, brings itinto or removes it from Grenada;

for the purpose of assisting any person to avoid prosecution fora drug trafficking or relevant offence or the making orenforcement of a confiscation order.

(3) In this section the references to concealing ordisguising any property include references to concealing ordisguising its nature, source, location, disposition, movement orownership or any rights with respect to it.

Assisting anotherto retain proceedsof criminalconduct.

44.—(1) Subject to subsection (3), a person is guilty of anoffence if he enters into or is otherwise concerned in anarrangement whereby-

(a) the retention or control by or on behalf ofanother person (“A”) of A’s proceeds ofcriminal conduct is facilitated (whether byconcealment, removal from the jurisdiction,transfer to nominees or otherwise); or


(b) A’s proceeds of criminal conduct-

(i) are used to secure that funds are placed atA’s disposal; or

(ii) are used for A’s benefit to acquireproperty by way of investment,

and he knows or suspects that A is a person who is or has beenengaged in or has benefitted from criminal conduct.

(2) In this section, references to any person’s proceedsof criminal conduct include a reference to any property which inwhole or in part directly or indirectly represented in his hands hisproceeds of criminal conduct.

(3) Where a person discloses in good faith to a policeofficer a suspicion or belief that any funds or investments arederived from or used in connection with criminal conduct, or anymatter on which such a suspicion or belief is based-

(a) the disclosure shall not be treated as a breachof any restriction upon the disclosure ofinformation imposed by statute or otherwiseand shall not give rise to any civil liability;and

(b) if he does any act in contravention ofsubsection (1) and the disclosure relates tothe arrangement concerned, he does notcommit an offence under this section if-

(i) the disclosure is made before he doesthe act concerned and the act is donewith the consent of the police officer;or


(ii) the disclosure is made after he does theact, but is made on his initiative and assoon as it is reasonable for him tomake it.

(4) In proceedings against a person for an offence underthis section, it is a defence to prove-

(a) that he did not know or suspect that thearrangement related to any person's proceedsof criminal conduct;

(b) that he did not know or suspect that by thearrangement the retention or control by or onbehalf of A of any property was facilitated or,as the case may be, that by the arrangementany property was used as mentioned insubsection (1)(b); or

(c) that-

(i) he intended to disclose to a policeofficer such a suspicion, belief ormatter as is mentioned in subsection(3) in relation to the arrangement, but

(ii) there is reasonable excuse for hisfailure to make any such disclosure inthe manner mentioned in subsection(3)(b).

(5) In the case of a person who was in employment atthe time in question, subsections (3) and (4) shall have effect inrelation to disclosures and intended disclosures to theappropriate person in accordance with any procedure established


by his employer for the making of such disclosures as they haveeffect in relation to disclosures, and intended disclosures, to apolice officer.

Acquisition,possession or useof proceeds ofcriminal conduct.

45.—(1) A person is guilty of an offence if, knowing that anyproperty is, or in whole or in part directly or indirectlyrepresents, another person’s proceeds of criminal conduct, heacquires or uses that property or has possession of it.

(2) It is a defence to a charge of committing an offenceunder this section that the person charged acquired or used theproperty or had possession of it for adequate consideration.

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

(a) a person does not acquire property foradequate consideration if the value of theconsideration is significantly less than thevalue of the property; and

(b) a person does not use or have possession ofproperty for adequate consideration if thevalue of the consideration is significantly lessthan the value of his use or possession of theproperty.

(4) The provision for any person of services or goodswhich are of assistance to him in criminal conduct shall not betreated as consideration for the purposes of subsection (2).

(5) Where a person discloses in good faith to a policeofficer a belief that any property is, or in whole or in part directlyor indirectly represents, another person’s proceeds of criminalconduct, or any matter on which such a belief is based-


(a) the disclosure shall not be treated as a breachof any restriction upon the disclosure ofinformation imposed by statute or otherwiseand shall not give rise to any criminal, civilor administrative liability; and

(b) if he does any act in relation to the propertyin contravention of subsection (1), he doesnot commit an offence under this section if-

(i) the disclosure is made before he doesthe act in question and the act is donewith the consent of the police officer;or

(ii) the disclosure is made after he does theact, but is made on his initiative and assoon as it is reasonable for him tomake it.

(6) For the purposes of this section, having possessionof any property shall be taken to be doing an act in relation to it.

(7) In proceedings against a person for an offence underthis section, it is a defence to prove that-

(a) he intended to disclose to a police officersuch a belief or matter as is mentioned insubsection (5), but

(b) there is reasonable excuse for his failure tomake any such disclosure in the mannermentioned in subsection (5)(b).


(8) In the case of a person who was in employment atthe time in question, subsections (5) and (7) shall have effect inrelation to disclosures, and intended disclosures, to theappropriate person in accordance with any procedure establishedby his employer as they have effect in relation to disclosures, andintended disclosures, to a police officer.

(9) No police officer or other person shall be guilty ofan offence under this section in respect of anything done by himin the course of acting in connection with the enforcement, orintended enforcement, of any provision of this Act or of anyother statutory provision relating to drug trafficking or relevantoffences or the proceeds of criminal conduct.

Disclosure ofknowledge orsuspicion ofmoneylaundering.

46.—(1) Where a person in good faith discloses to a policeofficer-

(a) his suspicion or belief that another person isengaged in money laundering, or

(b) any information or other matter on which thatsuspicion or belief is based,

the disclosure shall not be treated as a breach of anyrestriction upon the disclosure of information imposed bystatute or otherwise and shall not give rise to any criminal,civil or administrative liability.

(2) A person is guilty of an offence if-

(a) he knows or suspects that another person isengaged in money laundering which relatesto any proceeds of drug trafficking;


(b) the information, or other matter, on whichthat knowledge or suspicion is based came tohis attention in the course of his trade,profession, business or employment; and

(c) he does not disclose the information or othermatter to a police officer as soon as isreasonably practicable after it comes to hisattention.

(3) Subsection (2) does not make it an offence for aprofessional legal adviser to fail to disclose any information orother matter which has come to him in privileged circumstances.

(4) It is a defence to a charge of committing an offenceunder this section that the person charged had a reasonableexcuse for not disclosing the information or other matter inquestion.

(5) Any disclosure made by a person who was inemployment at the time in question to the appropriate person inaccordance with any procedure established by his employer shallbe treated, for the purposes of this section, as a disclosure to apolice officer.

(6) For the purposes of this section, any information orother matter comes to a professional legal adviser in privilegedcircumstances if it is communicated or given to him-

(a) by, or by a representative of, a client of his inconnection with the giving by the adviser oflegal advice to the client;

(b) by, or by a representative of, a person seekinglegal advice from the adviser; or


(c) by any person-



but no information or other matter shall be treated as coming toa professional legal adviser in privileged circumstances if it iscommunicated or given with a view to furthering any criminalpurpose.

Tipping-off. 47.—(1) A person is guilty of an offence if-

(a) he knows or suspects that a police officer isacting, or is proposing to act, in connection withan investigation which is being, or is about to be,conducted into money laundering or theproceeds of criminal conduct; and

(b) he discloses to any other person information orany other matter which is likely to prejudice thatinvestigation or proposed investigation.

(2) A person is guilty of an offence if-

(a) he knows or suspects that a disclosure hasbeen made to a police officer or to anappropriate person under section 44, 45 or46; and

(b) he discloses to any other person informationor any other matter which is likely toprejudice any investigation which might beconducted following such a disclosure.


(3) Nothing in subsection (1) or (2) makes it an offencefor a professional legal adviser to disclose any information orother matter-

(a) to, or to a representative of, a client of his inconnection with the giving by the adviser oflegal advice to the client; or

(b) to any person-



but this subsection does not apply in relation to any informationor other matter which is disclosed with a view to furthering anycriminal purpose.

(4) In proceedings against a person for an offence undersubsection (1) or (2), it is a defence to prove that he did not knowor suspect that the disclosure was likely to be prejudicial in theway there mentioned.

(5) No police officer or other person shall be guilty ofan offence under this section in respect of anything done by himin the course of acting in accordance with the enforcement, orintended enforcement, of any provision of this Act or of anyother statutory provision relating to criminal conduct or theproceeds of criminal conduct.

Record keeping

and reporting of

suspicious

transactions.

48.—(1) Every financial institution or person engaged in arelevant business activity shall keep and retain records relatingto financial activities in accordance with the Regulations madeunder section 68 of this Act.


(2) Every financial institution or person engaged inrelevant business activity shall pay special attention to allcomplex, unusual or large transactions, whether completed ornot, and to all unusual patterns of transactions, and toinsignificant but period patterns of transactions, which have noapparent economic or lawful purpose.

(3) Upon suspicion that any of the transactionsdescribed in subsection (2) or any other transaction or activitycould constitute or be related to money laundering or theproceeds of criminal conduct, a financial institution or personengaged in a relevant business activity shall report the suspicioustransactions to the Financial Intelligence Unit in a form specifiedin the Regulations, as soon as reasonably practicable, and in anyevent, within fourteen days of the date the transaction wasdeemed to be suspicious as relating to money laundering or theproceeds of criminal conduct.

(4) When the report referred to in subsection (3) ismade in good faith, the financial institutions or persons engagedin relevant business activities and their employees, staff,directors, owners or other representatives as authorised by law,shall be exempted from criminal, civil or administrative liabilityas the case may be, for complying with this section or for breachof any restriction on disclosure of information imposed bycontract or by any legislative, regulatory or administrativeprovision, regardless of the result of the communication.

(5) Where a financial institution or person engaged ina relevant activity makes a report under section 48(3), thefinancial institution or person engaged in relevant businessactivity or their employees, staff, directors, owners or otherrepresentatives must not disclose to any one else:

(a) that the financial institution or personengaged in a relevant business activity hasformed a suspicion;


(b) that information has been communicated tothe Financial Intelligence Unit; or

(c) Any other information from which the personto whom the information is disclosed couldreasonably be expected to infer that thesuspicion had been formed or that a reporthad been made under subsection 48(3).

(6) Every financial institution or person engaged in arelevant business activity shall develop and implement a writtencompliance programme reasonably designed to ensure andmonitor compliance with Regulations made under this Act.

(7) A compliance programme referred to in subsection(5) shall include -

(a) A system of internal controls to ensureongoing compliance;

(b) Internal or external independent testing forcompliance;

(c) Training of personnel in the identification ofsuspicious transactions; and

(d) Appointment of a staff member responsiblefor continual compliance with this Act andthe Regulations.

Penalties

Penalties formoneylaundering etc.

49.—(1) A person guilty of an offence under section 43, 44,45 or 48(2) (money laundering, failure to report a suspicioustransaction) shall be liable-


(a) on summary conviction, to imprisonment forterm not exceeding five years or a fine notexceeding $500,000 or both; and

(b) on conviction on indictment, to imprisonmentnot exceeding ten years or an unlimited fine orboth.

(2) A person guilty of an offence under section 46 or 47(failure to disclose knowledge or suspicion; tipping- off) shall beliable-

(a) on summary conviction, to imprisonment notexceeding three years or a fine of $500,000or both; or

(b) on conviction on indictment, toimprisonment for ten years or an unlimitedfine or both.

Prevention of money laundering

Establishment ofSupervisoryAuthority;regulations etc.

50.—(1) There shall be established a Committee, to beknown as the Supervisory Authority, for the purpose of,

(a) advising the Minister of Finance in relation tothe detection and prevention of moneylaundering in Grenada;

(b) issuing from time to time guidance as tocompliance with this Act and regulations madeunder this Act;

(c) advising the Minister of Finance as to theparticipation of Grenada in the internationaleffort against money laundering;


and the Committee shall meet as often as may be necessary tocarry out its duties.

(2) The members of the Supervisory Authority shall be,

(a) the Permanent Secretary Ministry of Finance;

(b) the Director of Public Prosecutions;

(c) the Permanent Secretary of the Ministryresponsible for the Police;

(d) the Commissioner of Police;

(e) the Chairman of the Grenada OffshoreFinance Authority;

(f) such other persons as the Minister of Financemay from time to time appoint;

(g) the chairman to be appointed by the Ministerof Finance from any of the above persons;

and the Committee may appoint a sub-committee, to assist informulating the guidance mentioned in subsection (1)(b).

(3) The Minister of Finance may, after consulting theSupervisory Authority, make such regulations as he thinks fit forthe purposes of detecting and preventing money laundering.

(4) Without prejudice to the generality of subsection(3), such regulations may in particular,


(a) require such financial and other institutionsas may be prescribed to establish andmaintain procedures relating to theidentification of clients, the keeping ofrecords, the making of reports and training;

(b) create criminal offences of failing to complywith the regulations; and

(c) provide that in determining whether a personhas complied with the regulations the trialcourt may take account of any currentrelevant guidance issued by the SupervisoryAuthority.

PART VI

SEIZURE OF CASH

Seizure anddetention ofcash importedor exported.

51.—(1) A police officer may seize and detain, in accordancewith this Part, any cash which is being imported into or exportedfrom Grenada if the officer has reasonable grounds forsuspecting that it directly or indirectly represents any person'sproceeds of criminal conduct or is intended by any person foruse in any criminal conduct.

(2) Cash seized by virtue of this section shall not bedetained for more than forty-eight hours unless its continueddetention is authorized by an order made by a magistrate; and nosuch order shall be made unless the magistrate is satisfied-

(a) that there are reasonable grounds for thesuspicion mentioned in subsection (1); and


(b) that continued detention of the cash isjustified while its origin or derivation isfurther investigated or consideration is givento the institution (whether in Grenada orelsewhere) of criminal proceedings againstany person for an offence with which thecash is connected.

(3) Any order under subsection (2) shall authorize thecontinued detention of the cash to which it relates for suchperiod, not exceeding three months beginning with the date ofthe order, as may be specified in the order; and a court ofsummary jurisdiction, if satisfied as to the matters mentioned inthat subsection, may thereafter from time to time by orderauthorize the further detention of the cash but so that-

(a) no period of detention specified in such anorder shall exceed three months beginningwith the date of the order; and

(b) the total period of detention shall not exceedtwo years from the date of the order undersubsection (2).

(4) Any application for an order under subsection (2) or(3) shall be made by a police officer.

(5) At any time while cash is detained by virtue of thissection-

(a) a court of summary jurisdiction may directits release if satisfied-


(i) on an application made by the personfrom whom it was seized or a personby or on whose behalf it was beingimported or exported, that there are no,or are no longer, any such grounds forits detention as are mentioned insubsection (2); or

(ii) on an application made by any otherperson, that detention of the cash is notfor that or any other reason justified;and

(b) a police officer may release the cash if satisfiedthat its detention is no longer justified but shallfirst notify the magistrate or court of summaryjurisdiction under whose order it is beingdetained.

(6) If at a time when any cash is being detained byvirtue of this section-

(a) an application for its forfeiture is madeunder section 51 or

(b) proceedings are instituted (whether inGrenada or elsewhere) against any personfor an offence with which the cash isconnected,

the cash shall not be released until any proceedings pursuant tothe application or, as the case may be, the proceedings for thatoffence have been concluded.


Forfeiture ordersand appeals.

52.—(1) A court of summary jurisdiction may make an order(a “forfeiture order”) ordering the forfeiture of any cash whichhas been seized under section 50 if satisfied, on an applicationmade by a police officer while the cash is detained under thatsection, that the cash directly or indirectly represents anyperson’s proceeds of, or benefit from, or is intended by anyperson for use in, criminal conduct.

(2) An order may be made under subsection (1)whether or not proceedings are brought against any person for anoffence with which the cash in question is connected.

(3) Any party to the proceedings in which a forfeitureorder is made (other than the applicant) may, before the end ofthe period of thirty days beginning with the date on which it ismade, appeal to the High Court.

(4) On an application made by an appellant to a courtof summary jurisdiction at any time, that court may order therelease of so much of the cash to which the forfeiture orderrelates as it considers appropriate to enable him to meet his legalexpenses in connection with the appeal.

(5) An appeal under this section shall be by way ofrehearing, and the High Court may make such order as itconsiders appropriate and, in particular, may order the release ofthe cash (or any remaining cash) together with any accruedinterest.

Seizure:supplementary.

53.—(1) Cash consisting of coins and bank-notes seizedunder this Part and detained for more than forty-eight hours shallwhere practicable, unless required as evidence of an offence, beheld in an interest-bearing account, and the interest accruing onany such cash shall be added to that cash on its forfeiture orrelease.


(2) An order under section 50(2) shall provide fornotice to be given to persons affected by the order.

(3) Without prejudice to the generality of any existingpower to make rules, provision may be made by rules of court,

(a) with respect to applications to any courtunder this Part;

(b) for the giving of notice of suchapplications to persons affected;

(c) for the joinder of persons as parties; and

(d) generally with respect to the procedureunder this Part before any court.

(4) In this Part-

“cash” means,

(a) coins and bank-notes in any currency; and

(b) negotiable instruments;

“exported”, in relation to any cash, includes itsbeing brought to any place in Grenada for thepurpose of being exported.

PART VII

MISCELLANEOUS & SUPPLEMENTAL

Foreign orders etc

Enforcementof externalconfiscationorders.

54.—(1) The Attorney General may, by order,


(a) direct in relation to a country or territory outsideGrenada designated by the order (a "designatedcountry") that, subject to such modifications asmay be specified, this Act shall apply to externalconfiscation orders and to proceedings whichhave been or are to be instituted in thedesignated country and may result in an externalconfiscation order being made there;

(b) make-

(i) such provision in connection with thetaking of action in the designated countrywith a view to satisfying a confiscationorder;

(ii) such provision as to evidence or proof ofany matter for the purposes of this sectionand section 54; and

(iii) such incidental, consequential andtransitional provision,

as appears to him to be expedient; and

(c) without prejudice to the generality of thissubsection, direct that, in such circumstances asmay be specified, proceeds arising out of actiontaken in the designated country with a view tosatisfying a confiscation order and which areretained there shall nevertheless be treated asreducing the amount payable under the order tosuch extent as may be specified.

(2) An order under this section may make differentprovision for different cases or classes of cases.


(3) The power to make an order under this sectionincludes power to modify this Act in such a way as to conferpower on a person to exercise a discretion.

(4) In this section and section 54-

“external confiscation order” means an order madeby a court in a designated country for thepurpose,

(a) of recovering property, or the value of suchproperty, obtained as a result of or inconnection with,

(i) drug trafficking; or

(ii) any offence which would, ifcommitted in Grenada, be an offencetriable summarily or on indictment ortriable on indictment; or

(b) of depriving a person of a pecuniaryadvantage so obtained;

(5) An order under this section is subject to thenegative resolution procedure.

Registration ofexternalconfiscationorders.

55.—(1) On an application made by or on behalf of thegovernment of a designated country, the High Court mayregister an external confiscation order made there if-

(a) it is satisfied that at the time of registration theorder is in force and not subject to appeal;


(b) it is satisfied, where the person affected by theorder did not appear in the proceedings, that hereceived notice of the proceedings in sufficienttime to enable him to defend them; and

(c) it is of the opinion that enforcing the order inGrenada would not be contrary to the interests ofjustice.

(2) In subsection (1)(a), “appeal” includes-

(a) any proceedings by way of discharging orsetting aside a judgment; and

(b) an application for a new trial or a stay ofexecution.

(3) The court shall cancel the registration of an externalconfiscation order if it appears to the court that the order hasbeen satisfied by payment of the amount due under it.

Evidence ofcorrespondinglaw.

56.—(1) A document purporting to be issued by or on behalfof the Government of a country or territory and purporting tostate the terms of a corresponding law in force in that country orterritory shall be admitted in evidence, in proceedings under thisAct, on its production by the prosecution without further proof,and such document shall be conclusive evidence that-

(a) it is issued by or on behalf of the Government ofthat country or territory;

(b) the terms of such law are as stated in thedocument;

(c) any facts stated in the document to constitute anoffence under such law do constitute suchoffence.


(2) “Corresponding law”,

(a) in relation to proceedings relating to drugtrafficking has the meaning given insection 18 of the Drug Abuse (Preventionand Control) Act 1992 and;

(b) in any other case, means a law whichcorresponds with a provision of Grenadalaw which creates a relevant offence.

"Confiscated

Assets Fund”.57.—(1) There shall be established a fund to be known as the

Confiscated Assets Fund (“the Fund”).

(2) There shall be paid into the Fund-

(a) proceeds of criminal conduct recoveredunder a confiscation order;

(b) cash forfeited under Part VI;

(c) money forfeited under the Drug Abuse(Prevention and Control) Act 1992;

(d) money paid to the Government ofGrenada by a foreign jurisdiction inrespect of confiscated assets, whetherunder a treaty or arrangement providingfor mutual assistance in criminal mattersor otherwise.

(3) The Minister of Finance may, after consulting theSupervisory Authority and Cabinet, authorize payments to bemade out of the Fund-

(a) for purposes related to-


(i) law enforcement, including inparticular the investigation andprosecution of suspected cases of drugtrafficking and money laundering;

(ii) treatment and rehabilitation of drugaddicts;

(iii) public education in relation to drugaddiction;

(iv) demand reduction activities;

(v) research to include surveys of the drugproblem in Grenada; and

(vi) funding of Special Drug Courts

(b) to satisfy an obligation of the Government ofGrenada to a foreign jurisdiction in respect ofconfiscated assets, whether under a treaty orarrangement providing for mutual assistancein criminal matters or otherwise;

(c) to meet the expenses of the SupervisoryAuthority;

(d) to meet the remuneration and expenses of areceiver appointed under this Act;

(e) to pay compensation or costs awarded underthis Act;

(f) to cover costs associated with theadministration of the Fund.


Administrationof the Fund.

58.—(1) The moneys paid into the Fund shall be invested inaccordance with the laws of Grenada, and the income earnedfrom such investments shall be paid into the Fund.

(2) The financial year of the Fund shall end on 31stMarch in each year.

(3) The Accountant General shall cause properaccounts, and proper records in relation to the accounts, of theFund to be kept, and shall cause to be prepared in respect of eachfinancial year a statement of the accounts of the Fund in suchform as the Minister may direct.

(4) Within six months after the end of each financialyear, the Minister shall send to the Auditor a copy of thestatement of accounts for that financial year.

(5) The Auditor shall examine every statement ofaccounts received by him under this section and shall make areport in writing on the statement to the Minister.

(6) The Minister shall lay on the table in the House ofAssembly a copy of the Auditor's report.

Offences and police powers etc

Offences bybodies corporate.

59. Where a body corporate is guilty of an offence under thisAct and that offence is proved to have been committed with theconsent or connivance of any director, manager, secretary orother similar officer of the body corporate or any person whowas purporting to act in any such capacity, he, as well as thebody corporate, shall be guilty of that offence and shall be liableto be proceeded against and punished accordingly.


Police powersetc.

60.—(1) For the purposes of this Act, “police officer”includes any officer of the Customs Department.

(2) A police officer may arrest without warrant anyperson whom he reasonably believes has committed an offenceunder this Act.

(3) An officer of the Customs Department may, in anycase relating to the commission of an offence under this Act,exercise all or any of the powers in relation to investigations intoan offence which is arrestable without warrant conferred on apolice officer by the Criminal Code.

Police officers:duty ofconfidentiality.

61.—(1) Except for the purpose of the performance of hisduties or the exercise of his functions or when lawfully requiredto do so by any court or under the provisions of any enactment,no police officer shall disclose any information or matter whichhas been obtained by him in the performance of his duties or theexercise of his functions under this Act.

(2) Any person who contravenes this section shall beguilty of an offence and shall be liable on summary convictionto imprisonment for one year or a fine of $20,000 or both.

Procedure

Jurisdiction. 62. Where a defendant is charged with a drug trafficking orrelevant offence which may be tried summarily or on indictment,

(a) the power of the Director of Public Prosecutionsto issue a certificate requiring an offence to betried on indictment may be exercised where theDirector of Public Prosecutions intends to makean application for a confiscation order if thedefendant is convicted; and


(b) the power of a magistrates’ court to commit thedefendant to the High Court for sentencing shallbe exercised where the magistrates’ court is ofthe opinion that the defendant is one againstwhom the High Court may consider making aconfiscation order.

Compensation. 63.—(1) If an investigation is begun against a person for adrug trafficking or relevant offence or offences and any of thefollowing circumstances occur-

(a) no proceedings are instituted against that person;

(b) proceedings are instituted against that person butdo not result in his conviction for any drugtrafficking or relevant offence; or

(c) proceedings are instituted against that personand he is convicted of one or more drugtrafficking or relevant offences, but

(i) the conviction or convictions concernedare quashed; or

(ii) he is granted a pardon in respect of theconviction or convictions concerned,

the High Court may, on application by a person who heldproperty which was realizable property, order compensation tobe paid to the applicant if, having regard to all thecircumstances, it considers it appropriate to make such an order.

(2) The court shall not order compensation to be paidunless it is satisfied-


(a) that there has been some serious defaulton the part of any person concerned in theinvestigation or prosecution of the offenceor offences concerned; and

(b) that the applicant has suffered loss inconsequence of anything done in relationto the property by, or in pursuance of arestraint order or a charging order.

(3) The court shall not order compensation to be paidin any case where it appears to the court that the investigationwould have been continued, or the proceedings would have beeninstituted or continued, as the case may be, if the serious defaulthad not occurred.

(4) Without prejudice to subsection (1), where,

(a) a disclosure is made by any person inaccordance with section 44(3) or 44(5) inrelation to any property;

(b) in consequence of the disclosure and forthe purposes of an investigation orprosecution in respect of a drugtrafficking offence or offences any act isdone or omitted to be done in relation tothat property; and

(c) no proceedings are instituted against anyperson in respect of that offence oroffences or no restraint order or chargingorder is made in relation to that property,


the court may, on application by a person who held the property,order compensation to be paid to the applicant if, having regardto all the circumstances, it considers it appropriate to make suchan order.

(5) The court shall not order compensation to be paidunder subsection (4) unless it is satisfied-

(a) that there has been some serious defaulton the part of any person concerned in theinvestigation or prosecution of the offenceor offences concerned and that, but forthat default, the act or omission referred toin subsection (4)(b) would not haveoccurred; and

(b) the applicant has, in consequence of theact or omission referred to in subsection(4)(b), suffered loss in relation to theproperty.

(6) The amount of compensation to be paid under thissection shall be such as the court thinks just in all thecircumstances of the case.

(7) Compensation ordered to be paid under this sectionand sections 23 and 24 shall be paid out of the ConsolidatedFund and or the Confiscated Assets Fund.

Costs. 64.—(1) Where-

(a) a person brings, or appears at, court proceedingsunder this Act and endeavours-

(i) to prevent a confiscation order or arestraint order or a charging order frombeing made against property of his; or


(ii) to have property of his excluded fromsuch an order; and

(b) that person is successful in that endeavour; and

(c) the court is satisfied that he was not in any wayinvolved in criminal conduct,

then the court may by order declare that he is entitled to be paidall reasonable costs incurred by him in connection with thoseproceedings, or such part of those costs as the court determines.

(2) The costs referred to in subsection (1) are notlimited to costs of a kind that are normally recoverable by asuccessful party in civil proceedings.

(3) Costs payable by virtue of a declaration made by thecourt under subsection (1) shall be paid out of the ConsolidatedFund.

Civil standardof proof.

65. Any question of fact to be decided by a court inproceedings under this Act, except any question of fact that is forthe prosecution to prove in any proceedings for an offence underthis Act, shall be decided on the balance of probabilities.

Appeals. 66. Any decision of a court in proceedings under this Act,except proceedings in relation to any offence committed underthis Act, is a judgment of a court in a civil cause.

Supplemental

Index of definedexpressions.

67. In this Act the expressions listed below are defined by, orotherwise fall to be construed in accordance with, the provisionsof this Act listed below,

(a) amount that might be realized section 4(4)(b) amount to be recovered section 15


(c) benefitted fromdrug trafficking section 9(3)relevant offence section 10(3)

(d) charging order section 29(e) conclusion of application section 8(1)(f) conclusion of proceedings section 8(1)(g) confiscation order section 7(h) corresponding law section 55(i) the court section 7(j) defendant section 7(k) chargeable asset section 29(5)(l) criminal conduct section 3(m) drug trafficking section 3(n) drug trafficking arrangement section 3(o) drug trafficking offence section 3(p) external confiscation order section 53(q) gift caught by this Act section 6(r) held (in relation to property) section 4(2)(s) institution of proceedings section 8(1)(t) interest (in relation to property) section 4(1)(u) items subject to legal privilege section 7(v) material section 7(w) money laundering section 7(x) monitoring order section 41(y) police officer section 57(z) premises section 7(aa) prescribed section 7(bb) proceeds of drug trafficking section 12(1)(a)(cc) production order section 37(dd) property section 4(1), (2)(ee) prosecutor’s statement section 13(4)(ff) realizable property section 4(3)(gg) relevant offence section 3(hh) restraint order section 28(ii) subject to appeal section 8(2)(jj) transferred

(in relation to property) section 4(2)


(kk) value of gift section 5(2)(ll) value of proceeds of drug

trafficking section 12(1)(b)(mm) value of property section 5(1)

Regulations. 68.—(1) Regulations may be made for prescribing anythingwhich is required to be prescribed under this Act and generallyfor carrying out the purposes and provisions of this Act,

(a) by the Minister of Finance, in relation to Part V;and

(b) by the Minister responsible for the Police, in anyother case.

SCHEDULE 1

Financial Institutions

A bank licensed under the Banking Act

A bank or trust company licensed under the Offshore Banking Act 1996

A building society registered under the Building Societies Act

An insurance company registered under the Insurance Act

International insurance business licensed under the International

Insurance Act 1996

Registered agents licensed under the International Companies Act

Cap. 152

A Trust licensed under the International Trusts Act 1996

A person Licensed to operate an exchange bureau

A person Licensed as a dealer or investment adviser

A person who carries on cash remitting services

A person who carries on postal courier services

Credit Unions


Relevant Business Activities

Lending (including personal credits, factoring with or without recourse,

financial or

commercial transaction including forfeiting cheque cashing services

Finance Leasing

Venture risk capital

Money or funds transmission services

Issuing and administering means of payment (e.g. credit cards, travellers'

cheques and

bankers' drafts)

Guarantees and commitments

Trading for own account of customers in:

(a) money market instruments (cheques, bills, certificates of deposit etc.)

(b) foreign exchange

(c) financial futures and options

(d) exchange and interest rate instruments; and

(e) transferable instruments

Underwriting share issues and the participation in such issues

Money broking

Investment business

Deposit taking

Bullion dealing

Financial intermediaries

Custody services

Securities broking and underwriting

Investment and merchant banking,

Asset management services

Trusts and other fiduciary services

Company formation and management services

Collective investment schemes and mutual funds

2003 Proceeds of Crime Act 123

Real estate agents

Casinos

Internet gambling

Pool betting

Lottery agents

Barristers-at-Law and Solicitors

Accountants

Notaries

Passed by the House of Representatives the 20th day of December, 2002.

ABEL NEWTON

Clerk to the House of Representatives.

Passed by the Senate the 31st day of December, 2002.

ABEL NEWTON

Clerk to the Senate.

))))))

GRENADA))))

PRINTED BY THE GOVERNMENT PRINTER, AT THE GOVERNMENT PRINTING OFFICE,ST. GEORGE'S

2003.

2003 proceeds of crime act 3 21 - cicad · 2003 proceeds of crime act 3 21 arrangement of se ctions...

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