Opposition MPs Concerned over Proceeds of Crime Act
Antigua St. john's - Attorney-at-law and Parliamentary Representative for St John's City South Steadroy "Cutie" Benjamin has called The Proceeds of Crime Amendment Bill "draconian".
Due to Benjamin's concern, backed by Opposition Leader and MP for St John's City West Gaston Browne, the Bill has been sent to a Select Committee of the House of Representatives for review.
The Committee comprises Benjamin, MP for St Mary's North Molwyn Joseph, MPs for St George and St John's City East Dr Jackie Quinn Leandro and Harold Lovell, respectively, and Attorney General Justin Simon QC.
Simon referred to the Bill as a substantial amendment to The Proceeds of Crime Act, which was first passed in 1993.
He said the amendment seeks to rectify several issues, including "the need to widen certain offences to facilitate rather than impede charging persons who may have committed money laundering offences; (and) the standard of proof required in money laundering offences, (which) is amended from the criminal to the civil standard, (and) would allow for the more efficient charging and prosecution of money laundering offences."
The Bill also addresses civil recovery, so an individual would not only be subject to criminal charges, but to civil recovery procedures as well.
According to the new bill, people whose property might be used to commit illegal acts will be placed under a microscope.
The authorities would be given the right to investigate their income and lifestyle.
After investigations, if officials cannot find a legitimate source for the riches, it would be deemed associated with the criminal act.
Simon said while this person cannot be charged, an order from the court could be obtained to forfeit his or her properties, whether it be cash, real property, or goods (like a car).
"So the civil recovery operates to allow the attorney general to recover criminally acquired property even if the owners themselves have not, for whatever reason, been prosecuted for the criminal offence," Simon said.
The legislation operates against the property, as opposed to criminal confiscation, which operates against the person.
"So the action which is brought will not be brought against you the individual. It is being brought against the property which is sought to be confiscated. So that there is no liability on your part, there is no offence in respect of which you are charged, and for which you may be imprisoned or fined. We are going against the property," said Simon.
The attorney general noted that the owner of the property would have to raise a defence of justification or justified means of acquiring that property.
If there is failure to prove such, the property would be seized.
Simon said the attorney general can apply to the High Court to recover property that he can prove to the civil standard.
The law would no longer require the standard of proof to be beyond reasonable doubt, but proving beyond the balance of probabilities, which Benjamin said could be challenged on a constitutional basis.
Benjamin reasoned that removing the burden of proof from the prosecution to prove its case beyond reasonable doubt is upturning centuries of criminal law.
"And there are serious other things in this bill - taking people's property on a balance of probability, when the constitution itself makes provisions for certain matters. You can acquire property in the public's interest, eminent domain and so on, but people have their constitutional rights as well," he said.
The MP noted that the Bill seeks to curtail the judge's power by forcing the adjudicator, who has discretion in sentencing, to impose a consecutive sentence on the guilty party.
Benjamin said that this cannot be right, it makes no sense, and is being taken out of proportion.
He agreed that certain issues pertaining to money laundering must be curtailed, but added that the new provisions are going too far.
"It is draconian in the extreme. And I can tell you, this will be subject to constitutional challenges. I tried to warn people, but you don't listen. Then they end up being taken to court and lose," said Benjamin.
Prime Minister and MP for St John's Rural West Baldwin Spencer conceded with the arguments.
Spencer agreed that the Bill should be subject to further consideration because there may be certain underpinnings of the existing law and the Constitution.
Attorney General Simon noted that a member of the UK prosecuting team would be invited to advise the Committee on the Bill, along with the director of public prosecutions (DPP).
It is expected that the Committee would return to Parliament with its report and recommendations next January.