Anti-Terrorism (Financial and Other Measures) Amendment Act 2008

Another act to be debated on Wednesday July 9th

A BILL

entitled

ANTI~TERRORISM (FINANCIAL AND OTHER MEASURES) AMENDMENT ACT 2008

ARRANGEMENT OF SECTIONS

I:

1       Short title and commencement                       5       rns~fts new section lOA

2       Amends section 2                                           6       Inserts new section 12A and

3       Amends section 3                                                     128

4       Inserts new sections 5A and                            7       Inserts new section 15A 58

WHEREAS it is desirable to amend the Anti-Terrorism (Financial and Other Measures) Act 2004 for the purposes of further prohibiting the financing of terrorism:

Be it enacted by The Queen’s Most Excellent Majesty, by and with the advice and consent of the Senate and the House of Assembly of Bermuda, and by the authority of the same, as follows:

Short title

1 This Act, which amends the Anti-Terrorism (Financial and Other Measures) Act 2004 (the "principal Act"), may be cited as the Anti­Terrorism (Financial and Other Measures) Amendment Act 2008 and shall come into operation on such day as the Minister of Justice may appoint by notice published in the Gazette; and the Minister may appoint different days for different provisions.

Amends section 2

2              Section 2 of the principal Act is amended by inserting in their

appropriate alphabetical order the following-


"FIN means the Financial Intelligence Agency established under section 3 of the Financial Intelligence Agency Act 2007;

"international organisation" means an organisation of which two or more sovereign powers, or the governments of two or more sovereign powers, are members;

"National Anti-Money Laundering Committee" means National Anti-Money Laundering Committee established under section 49 of the Proceeds of Crime Act 1997;

"professional accountant" means an accountant who is a member of the Institute of Chartered Accountants of Bermuda; and

"professional legal adviser" means a barrister and attorney who is a member of the

Bermuda

Bar Association.".

Amends section 3

3              Section 3 of the principal Act is amended-

(a) in subsection "governmen t» organisation" ;

(l) (b) by inserting next the words "or an

I~f

after the word international

(b) in subsection (2) (a) by inserting next "persons" the words ", including protected persons (including diplomats)";

(c) in subsection (2) (d) by deleting the word "or"; and

(d) in subsection (2) by inserting next after paragraph (e) the foll?wing-

after the word internationally

"(f) involves the unlawful seizure of aircraft in flight; or (g) involves unlawful violence against the safety of maritime navigation.".

Inserts new sections 5A and 58

4             The principal Act is amended by inserting next after section 5

the following-

"Organising or directing others to commit offences

5A It is an offence for a person to organise or direct another person to commit an offence specified in section 5.


Offences by bodies corporate etc.

5B (1) If an offence under this Act committed by a body corporate is shown-

(a) to have been committed with the consent or the connivance of an officer of the body corporate; or

(b) to be attributable to any neglect on his part,

the officer as well as the body corporate is guilty of an offence and liable to be proceeded against and punished accordingly.

(2) If an offence under this Act committed by a partnership is shown-

(a) to have been committed with the consent or the connivance of a partner; or

(b) to be attributable to any neglect on his part

the partner as well as the partnership is guilty of an offence and liable to be proceeded against and punislJed accordingly.

(3) If an offence under this ~ct committed by an unincorporated association (other than a partnership) is shown-

(a) to have been committed with the consent or the connivance of an officer of the association; or

(b) to be attributable to any neglect on his part

that officer as well as the association is guilty of an offence and liable to be proceeded against and punished accordingly.

(4) If the affairs of a body corporate are managed by its members, subsection (1) applies in relation to acts and defaults of a member in connection with his functions of management as if he were a director of the body.

(5) Proceedings for an offence alleged to have been committed by a partnership or an unincorporated association shall be brought in the name of the partnership or association (and not in that of its members).

(6) A fine imposed on a partnership or association on its conviction of an offence is to be paid out of the funds of the partnership or association.

(7) In this section-

"officer’l-e-


                            (a)     in relation to a body corporate, means a director, manager, secretary, chief executive, member of the committee of management, or a person purporting to act in such capacity; and

                            (b)     in relation to an unincorporated association, means any officer of the association or any member of its governing body, or a person purporting to act in such capacity; and

"partner" includes a person purporting to act as a partner.",

Inserts new section lOA

5             The principal Act is amended by inserting next after section 10

the following-

"Tipping -off

lOA (1) A person is guilty of an offence if-

(a) he knows or suspects that a police officer is acting, or is proposing to act, in connection with an investigation which is being, or is about to be, conducted into terrorist financing; and

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

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

‘(a) he knows or suspects that a disclosure has been made to the

FlA

under sections 9, 10 or paragraph 1 of Part 1 of Schedule 1; and

(b) he discloses to any other person information or any other matter which is likely to prejudice any investigation which might be conducted following such a disclosure.

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

(a) to, or to a representative of, a client of his in connection with the giving by the adviser of legal advice to the client; or


(b) to any person-

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

                               (ii)           for the purpose of those proceedings;

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

(4) In proceedings against a person for an offence under subsection (1) or (2), it is a defence that the person did not know or suspect that the disclosure was likely to be prejudicial in the way there mentioned.".

Inserts new sections 12A and 12B

6             The principal Act is amended by inserting next after section 12

the following-

"Regulations                                                          ~

12A (1) The Minister may, after consulting the National Anti­Money Laundering Committee, make such regulations as he thinks fit for the purposes of detecting and preventing the financing of terrorism.

(2) Without prejudice to the generality of subsection (1), such regulations may in particular-

(a) require-

                                  (i)            such persons or classes of persons conducting businesses in the financial services industry, falling within anyone or more activities or operations for or on behalf of a customer as may be prescribed by the Minister; and

                                  (ii)           professional            legal          advisers           and accountants in independent practice, who by way of business provide legal or accountancy services to other persons when participating in financial or real property transactions concerning a class of activity specified in subsection (3); and for this purpose, a person participates in a transaction by assisting in the planning or execution of the transaction or otherwise acting for or on behalf of a client in the transaction;


to establish and maintain procedures relating to the identification of clients, the keeping of records, the making of records, the vetting of employees, the verification of the effective design and operation of anti-money laundering systems and the training of employees; and

(b) create criminal offences of failing to comply with the regulations.

(3) For the purposes of subsection (2) (a) (ii), the following are specified activities-

(a) buying and selling real property;

(b) managing of client monies, securities and other assets;

(c) management of bank, savings or securities

                            accounts;                                                                   l

(d) organisation of contributions for the cn~~tion or management of companies;

(e) creation, operation or management of legal persons or arrangements, and buying and selling business entities.

(41 Regulations made under this section are subject to the affirmative resolution procedure.

Use of guidance

12B (1) In determining whether a person has committed an offence under sections 5 to 8, a court shall consider whether a defendant has followed any relevant guidance which was at the time-

(a) issued by a supervisory authority; (b) approved by the Minister; and

(c) published in a manner approved by the Minister as appropriate in his opinion to bring the guidance to the attention of persons likely to be affected by it.

(2) In this section "supervisory authority" means-

(a) the Bermuda Monetary Authority in relation to persons falling within section 12A(2)(a)(i) being


persons who are licensed, registered or otherwise exempted under any enactment regulating the financial services industry; or

(b) a professional body designated by the Minister under any enactment in relation to relevant persons regulated by it.

(3) Guidance issued under this section is not a statutory instrument and the Statutory Instruments Act 1977 shall not apply to it.".

Inserts new section 15A

7             The principal Act is amended by inserting next after section 15

the following-

"Prohibition of double jeopardy

15A No person shall be tried for an offence under this Act if the person has been charged with an offence under the Terrorism (United Nations Measures) (Overseas Ter~ories) Order 2001.".


ANTI-TERRORISM (FINANCIAL AND OTHER MEASURES) AMENDMENT ACT 2008

EXPLANATORY MEMORANDUM

The Bill for consideration is Anti-Terrorism (Financial and Other Measures) Amendment Act 2008.

Clause 1 sets out the short title of the Act.

Clause 2 adds the new definitions of "FIA" , "international

organisation",             National          Anti-Money          Laundering             Committee",

"professional accountant", and "professional legal adviser".

Clause 3 broadens the meaning of "terrorism".

Clause 4 adds the offences of "organising or directing others to commit offences" and "offences by bodies corporate, partnerships, and

unincorporated associations".                                                lit

Clause 5 adds the offence of "Tipping-Off’.

Clause 6 allows the Minister to make regulations for the purposes of detecting and preventing the financing of terrorism and the ability of a court to use "guidance notes" for determining whether an offence has been committed.

Clause 7 adds a prohibition on double jeopardy to ensure that no person is tried for the same offence under BOTH the Act and under the Terrorism (United Nations Measures) (

Overseas

Territories

) Order 2001.

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