Criminal Conduct Law revamped

Formal assent from the Governor is all that is required to bring the new Proceeds of Criminal Conduct Law (PCCL) 2008, into effect.

The new law will streamline and consolidate statutory provisions covering criminal offences that involve drug trafficking, money laundering and terrorism funding, a release from Government Information Services explains.

Passed unanimously by law makers in the House in June, the new 208-page law will repeal and replace existing provisions in order to expand the scope of legislation originally enacted in 1996 and revised several times since. It is based largely on the UK Proceeds of Crime Act 2002 and largely incorporates amendments made to the UK’s Serious Organised Crimes and Police Act 2005.

It is one of Cayman’s two main statutory means of dealing with confiscation of the proceeds of crime, the other being the Misuse of Drugs Law and the related Misuse of Drugs (Drug Trafficking Offences) (Designated Countries) Order 1991.

Attorney General Samuel Bulgin explained that, in addition to consolidating the different money laundering provisions currently found in different pieces of legislation, the revamped PCCL contains, for the first time, a civil forfeiture component.

This means the Attorney General will be able to bring civil proceedings in a court to confiscate property that is obtained through unlawful conduct (civil recovery). This is an entirely new provision and will make it less onerous to obtain a confiscation order as there will be no need to first obtain a criminal conviction.

According to the Attorney General it will be a modern, harmonised money laundering legislation ‘which is robust and accords with the international standards and best practice.’ He said it will generally be equivalent to the money laundering measures of the countries listed in the recently published European Union ‘White List’.

Presenting the bill in the Legislative Assembly, he advised members this new provision is one of the several recommendations made by the International Monetary Fund (IMF) in its report on the Cayman Islands released in 2005. The new law will also contain provisions for the Summary Court, in addition to the Grand Court, to make confiscation orders and to criminalise certain life styles, he said.

Provisions governing the powers, duties and functions of the Financial Reporting Authority and the Anti Money Laundering Steering Group will remain unchanged.

However, the new legislation will strengthen confiscation and restraint orders. Certain confiscation order procedures now become mandatory; the Grand Court must proceed with them when asked by the Attorney General.

A restraint order has the effect of freezing property that may be liable to confiscation following a trial and the making of a confiscation order, the Attorney General said. Currently, a restraint or charging order may be made only by the Grand Court under certain circumstances. The new law will abolish as unnecessary the power of the Grand Court to make a charging order.

Also, the point at which a restraint order may be made is to be brought forward to any time after the start of an investigation. At present it is possible only where charges are anticipated within a period of 21 days.

Another notable feature is the broadening of compensation provisions under certain conditions. It also will become possible for the Attorney General to request an asset freeze abroad before any restraint order is made in the Islands, should conditions for making such an order be satisfied.

Additionally, the definition of criminal conduct will be expanded, with no restriction on the type of criminal offence to be dealt with under the new law. ‘The Grand Court would only need to consider whether the defendant has benefited from any conduct which is, or would be, contrary to the criminal law of the Islands,’ Mr. Bulgin explained.

He noted the new law will also expand the scope for international cooperation to a larger number of countries beyond those currently designated. Additionally, the law will address, ‘in a comprehensive way, all the weaknesses identified by the IMF and the FATF (Financial Action Task Force) regional offshoot – the Caribbean FATF – in their evaluation report,’ he added.

The bill underwent extensive public consultation.