PART IINTRODUCTORY

Citation and commencement

1.  This Order may cited as the Anti-terrorism (Financial and Other Measures) (Overseas Territories) Order 2002 and shall come into force on 1st August 2002.

Extent

2.—(1) This Order extends to the following territories—

• Anguilla

• Falkland Islands

• Montserrat

• St Helena and Dependencies

• Turks and Caicos Islands

• Virgin Islands.

(2) In the application of this Order to any of the said territories the expression “the Territory” means that territory.

Interpretation: general

3.—(1) In this Order, unless the contrary intention appears—

• “act” and “action” include omission,

• “article” includes substance and any other thing,

• “Attorney General” means the Attorney General of the Territory and includes any person for the time being lawfully performing the functions of the Attorney General,

• “constable” includes an officer of the police force of the Territory, and, in the application to Anguilla of the provisions of this Order relating to the disclosure of information, also includes the Reporting Authority constituted under the Money Laundering Reporting Authority Act of that territory,

• “customs officer” means an officer who, under the law of the Territory relating to the control of exports or imports, is authorised to enforce such controls,

• “Director of Public Prosecutions” means the person (if any) other than the Attorney General in whom the law of the Territory for the time being vests (subject to such powers of control, supervision or direction as may be reserved to the Attorney General) the general power to initiate, conduct, take over and discontinue criminal proceedings for any offence against the law of the Territory,

• “Governor” means the person for the time being lawfully administering the government of the Territory,

• “immigration officer” means a person who, under the law of the Territory relating to the control of entry into the Territory, is authorised to enforce such control,

• “premises” includes any place and in particular includes a vehicle and a tent or moveable structure,

• “property” includes property wherever situated and whether real or personal, heritable or moveable, and things in action and other intangible or incorporeal property,

• “Supreme Court” means the court of the Territory, however styled, which possesses unlimited original jurisdiction in civil and criminal matters (but does not include a court which has appellate jurisdiction from such a court),

• “terrorist investigation” means an investigation of—

  (a)

  the commission, preparation or instigation of acts of terrorism,

  (b)

  an act which appears to have been done for the purposes of terrorism, or

  (c)

  the commission, preparation or instigation of an offence under this Order, and

• “vehicle” includes an aircraft, hovercraft, train or vessel.

(2) In this Order—

(a)references to conviction on indictment are references to conviction after trial before the Supreme Court,

(b)references to summary conviction are references to conviction after trial by a magistrates' court,

(c)references to a magistrates' court are references to a court of the Territory (however styled and however composed) which is subordinate to the Supreme Court and which is authorised by the law of the Territory to exercise general jurisdiction in criminal matters (but do not include references to a court exercising jurisdiction under a law governing a disciplined force or a penal establishment), and

(d)“the statutory maximum” means the fine prescribed by the law of the Territory, as for the time being in force, as the upper limit of the fines that a magistrates' court may impose on offenders in respect of any single criminal offence (disregarding any special provision authorising a greater fine to be imposed in respect of any particular offence) or, if the law of the Territory, as so in force, prescribes no such limit, means a fine of such amount (not being excessive in the circumstances of the case) as the court thinks fit.

(3) Where any provision of this Order confers any function on the Governor, it is to be construed as conferring that function on him to be exercised by him acting in his discretion.

Terrorism: Interpretation

4.—(1) In this Order “terrorism” means the use or threat of action where—

(a)the action falls within paragraph (2),

(b)the use or threat is designed to influence the government or intimidate the public or a section of the public, and

(c)the use or threat is made for the purpose of advancing a political, religious or ideological cause.

(2) Action falls within this paragraph if it—

(a)involves serious violence against a person,

(b)involves serious damage to property,

(c)endangers a person’s life, other than that of the person committing the action,

(d)creates a serious risk to the health or safety of the public or a section of the public, or

(e)is designed seriously to interfere with or seriously to disrupt an electronic system.

(3) The use or threat of action falling within paragraph (2) which involves the use of firearms or explosives is terrorism whether or not paragraph (l)(b) is satisfied.

(4) In this article—

(a)“action” includes action outside the Territory,

(b)a reference to any person or to property is a reference to any person, or to property, wherever situated,

(c)a reference to the public includes a reference to the public of a country other than the Territory,

(d)“explosive” means—

(i)an article or substance manufactured for the purpose of producing a practical effect by explosion,

(ii)materials for making an article or substance within sub-paragraph (i),

(iii)anything used or intended to be used for causing or assisting in causing an explosion, and

(iv)a part of anything within sub-paragraph (i) or (iii),

(e)“firearm” includes an air gun or air pistol, and

(f)“the government” means the government of the Territory or of a country (or a part of a country) other than the Territory.

PART IITERRORIST PROPERTY

Interpretation

Terrorist property

5.—(1) In this Order “terrorist property” means—

(a)money or other property which is likely to be used for the purposes of terrorism,

(b)proceeds of the commission of acts of terrorism, and

(c)proceeds of acts carried out for the purposes of terrorism.

(2) In paragraph (1) a reference to proceeds of an act includes a reference to any property which wholly or partly, and directly or indirectly, represents the proceeds of the act (including payments or other rewards in connection with its commission).

Offences

Fund-raising

6.—(1) A person commits an offence if he—

(a)invites another to provide money or other property, and

(b)intends that it should be used, or has reasonable cause to suspect that it may be used, for the purposes of terrorism.

(2) A person commits an offence if he—

(a)receives money or other property, and

(b)intends that it should be used, or has reasonable cause to suspect that it may be used, for the purposes of terrorism.

(3) A person commits an offence if he—

(a)provides money or other property, and

(b)knows or has reasonable cause to suspect that it will or may be used for the purposes of terrorism.

(4) In this article a reference to the provision of money or other property is a reference to its being given, lent or otherwise made available, whether or not for consideration.

Use and possession

7.—(1) A person commits an offence if he uses money or other property for the purposes of terrorism.

(2) A person commits an offence if he—

(a)possesses money or other property, and

(b)intends that it should be used, or has reasonable cause to suspect that it may be used, for the purposes of terrorism.

Funding arrangements

8.  A person commits an offence if—

(a)he enters into or becomes concerned in an arrangement as a result of which money or other property is made available or is to be made available to another, and

(b)he knows or has reasonable cause to suspect that it will or may be used for the purposes of terrorism.

Money laundering

9.—(1) A person commits an offence if he enters into or becomes concerned in an arrangement which facilitates the retention or control by or on behalf of another person of terrorist property—

(a)by concealment,

(b)by removal from the jurisdiction,

(c)by transfer to nominees, or

(d)in any other way.

(2) It is a defence for a person charged with an offence under paragraph (1) to prove that he did not know and had no reasonable cause to suspect that the arrangement related to terrorist property.

Disclosure of information: duty

10.—(1) This article applies where a person—

(a)believes or suspects that another person has committed an offence under any of articles 6 to 9, and

(b)bases his belief or suspicion on information which comes to his attention in the course of a trade, profession, business or employment.

(2) But this article does not apply if the information came to the person in the course of a business in the regulated sector (as defined in paragraph 1(12) of Schedule 1 for the purposes of that paragraph).

(3) The person commits an offence if he does not disclose to a constable as soon as is reasonably practicable—

(a)his belief or suspicion, and

(b)the information on which it is based.

(4) It is a defence for a person charged with an offence under paragraph (3) to prove that he had a reasonable excuse for not making the disclosure.

(5) Where—

(a)a person is in employment,

(b)his employer has established a procedure for the making of disclosures of the matters specified in paragraph (3), and

(c)he is charged with an offence under that paragraph,

it is a defence for him to prove that he disclosed the matters specified in that paragraph in accordance with the procedure.

(6) Paragraph (3) does not require disclosure by a professional legal adviser of—

(a)information which he obtains in privileged circumstances, or

(b)a belief or suspicion based on information which he obtains in privileged circumstances.

(7) For the purposes of paragraph (6) information is obtained by an adviser in privileged circumstances if it comes to him, otherwise than with a view to furthering a criminal purpose—

(a)from a client or a client’s representative, in connection with the provision of legal advice by the adviser to the client,

(b)from a person seeking legal advice from the adviser, or from the person’s representative, or

(c)from any person, for the purpose of actual or contemplated legal proceedings.

(8) For the purposes of paragraph (l)(a) a person shall be treated as having committed an offence under one of articles 6 to 9 if—

(a)he has taken an action or been in possession of a thing, and

(b)he would have committed an offence under one of those articles if he had been in the Territory at the time when he took the action or was in possession of the thing.

(9) A person guilty of an offence under this article shall be liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding five years, to a fine or to both,

(b)on summary conviction, to imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both.

Disclosure of information: permission

11.—(1) A person may disclose to a constable—

(a)a suspicion or belief that any money or other property is terrorist property or is derived from terrorist property;

(b)any matter on which the suspicion or belief is based.

(2) A person may make a disclosure to a constable in the circumstances mentioned in article 10(1) and (3).

(3) Paragraphs (1) and (2) shall have effect notwithstanding any restriction on the disclosure of information imposed by statute or otherwise.

(4) Where—

(a)a person is in employment, and

(b)his employer has established a procedure for the making of disclosures of the kinds mentioned in paragraph (1) and article 10(3),

paragraphs (1) and (2) shall have effect in relation to that person as if any reference to disclosure to a constable included a reference to disclosure in accordance with the procedure.

Disclosure of information: regulated and public sectors

12.  Schedule 1, which makes special provision for the disclosure of information by persons in the regulated and public sectors, shall have effect.

Cooperation with police

13.—(1) A person does not commit an offence under any of articles 6 to 9 if he is acting with the express consent of a constable.

(2) Subject to paragraphs (3) and (4), a person does not commit an offence under any of articles 6 to 9 by involvement in a transaction or arrangement relating to money or other property if he discloses to a constable—

(a)his suspicion or belief that the money or other property is terrorist property, and

(b)the information on which his suspicion or belief is based.

(3) Paragraph (2) applies only where a person makes a disclosure—

(a)after he becomes involved in the transaction or arrangement concerned,

(b)on his own initiative, and

(c)as soon as is reasonably practicable.

(4) Paragraph (2) does not apply to a person if—

(a)a constable forbids him to continue his involvement in the transaction or arrangement to which the disclosure relates, and

(b)he continues his involvement.

(5) It is a defence for a person charged with an offence under any of articles 6(2) and (3) and 7 to 9 to prove that—

(a)he intended to make a disclosure of the kind mentioned in paragraphs (2) and (3), and

(b)there is reasonable excuse for his failure to do so.

(6) Where—

(a)a person is in employment, and

(b)his employer has established a procedure for the making of disclosures of the same kind as may be made to a constable under paragraph (2),

this article shall have effect in relation to that person as if any reference to disclosure to a constable included a reference to disclosure in accordance with the procedure.

(7) A reference in this article to a transaction or arrangement relating to money or other property includes a reference to use or possession.

Penalties

14.  A person guilty of an offence under any of articles 6 to 9 shall be 1iable—

(a)on conviction on indictment, to imprisonment for a term not exceeding fourteen years, to a fine or to both, or

(b)on summary conviction, to imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both.

Forfeitures

15.—(1) The court by or before which a person is convicted of an offence under any of articles 6 to 9 may make a forfeiture order in accordance with the provisions of this article.

(2) Where a person is convicted of an offence under article 6(1) or (2) or 7, the court may order the forfeiture of any money or other property—

(a)which, at the time of the offence, he had in his possession or under his control, and

(b)which, at that time, he intended should be used, or had reasonable cause to suspect might be used, for the purposes of terrorism.

(3) Where a person is convicted of an offence under article 6(3) the court may order the forfeiture of any money or other property—

(a)which, at the time of the offence, he had in his possession or under his control, and

(b)which, at that time, he knew or had reasonable cause to suspect would or might be used for the purposes of terrorism.

(4) Where a person is convicted of an offence under article 8 the court may order the forfeiture of the money or other property—

(a)to which the arrangement in question related, and

(b)which, at the time of the offence, he knew or had reasonable cause to suspect would or might be used for the purposes of terrorism.

(5) Where a person is convicted of an offence under article 9 the court may order the forfeiture of the money or other property to which the arrangement in question related.

(6) Where a person is convicted of an offence under any of articles 6 to 9, the court may order the forfeiture of any money or other property which wholly or partly, and directly or indirectly, is received by any person as a payment or other reward in connection with the commission of the offence.

(7) Where a person other than the convicted person claims to be the owner of or otherwise interested in anything which can be forfeited by an order under this article, the court shall give him an opportunity to be heard before making an order.

(8) Schedule 2 (which makes further provision in relation to forfeiture orders under this article) shall have effect.

Forfeiture of terrorist cash

16.—(1) Schedule 3 (which makes provision for enabling cash which—

(a)is intended to be used for the purposes of terrorism, or

(b)is, or represents, property obtained through terrorism,

to be forfeited in civil proceedings before a magistrate’s court) shall have effect.

(2) The powers conferred by Schedule 3 are exercisable in relation to any cash whether or not proceedings have been brought for an offence in connection with the cash.

(3) Expressions used in this article have the same meanings as in Schedule 3.

PART IIIACCOUNT MONITORING ORDERS

Account monitoring orders

17.  Schedule 4 (account monitoring orders) shall have effect.

PART IVTERRORIST FINANCE OFFENCES: JURISDICTION

Terrorist finance: things done outside the Territory

18.—(1) If—

(a)a person does anything outside the Territory, and

(b)his action would have constituted the commission of an offence under any of articles 6 to 9 if it had been done in the Territory,

he shall be guilty of the offence.

(2) For the purposes of paragraph (l)(b), article 9(1)(b) shall be read as if for “the jurisdiction” there were substituted “a jurisdiction”.

PART VGENERAL

Police powers

19.—(1) A power conferred by virtue of this Order on a constable—

(a)is additional to powers which he has at common law or by virtue of any other law in force in the Territory, and

(b)shall not be taken to affect those powers.

(2) A constable may if necessary use reasonable force for the purposes of exercising a power conferred on him by virtue of this Order.

(3) Where anything is seized by a constable under a power conferred by virtue of this Order, it may (unless the contrary intention appears) be retained for so long as is necessary in all the circumstances.

Consent to prosecution

20.  Proceedings for an offence under this Order shall not be instituted without the consent of the Attorney General.

Crown servants, regulators etc.

21.—(1) The Governor may by order provide for any of articles 6 to 14 to apply to persons serving in a civil capacity in offices under the Crown in respect of the government of the Territory.

(2) The Governor may by order provide for article 10 not to apply to persons who are in his opinion performing or connected with the performance of regulatory, supervisory, investigative or registration functions of a public nature.

(3) An order made under this article—

(a)may make different provision for different purposes,

(b)may make provision which is to apply only in specified circumstances, and

(c)may make provision which applies only to particular persons or persons of a particular description.

Evidence

22.—(1) A document which purports to be—

(a)an order made by the Governor for the purposes of paragraph 19 of Schedule 2 or paragraph 19 of Schedule 3, and

(b)signed by him or on his behalf,

shall be received in evidence and shall, until the contrary is proved, be deemed to have been made by the Governor.

(2) A document bearing a certificate which—

(a)purports to be signed by or on behalf of the Governor, and

(b)states that the document is a true copy of an order made by the Governor for the purposes of a provision mentioned in paragraph (l)(a),

shall be evidence of the document in legal proceedings.

(3) Any order made by the Governor for the purposes of any provision of this Order other than a provision mentioned in paragraph (1)(a) shall be published in the Official Gazette of the Territory, and a copy of the issue of the Official Gazette in which there is published what purports to be the text of that order shal1 be evidence of the fact that it was made in the terms stated in the Official Gazette and was published therein on the date on which that issue purports to have been published.

(4) No person shall be guilty of an offence, or be liable to any penalty, by reason of an order made by the Governor such as is mentioned in paragraph (3) in respect of anything done or omitted before the publication of that order in the Official Gazette.

Orders and directions

23.  An order made or a direction given under this Order may be varied or revoked by a further such order or direction, as the case may be.

SCHEDULES

Article 12

SCHEDULE 1DISCLOSURE OF INFORMATION: REGULATED AND PUBLIC SECTORS

PART 1Regulated Sector

Failure to disclose

1.—(1) A person commits an offence if each of the following conditions is satisfied.

(2) The first condition is that he—

(a)knows or suspects, or

(b)has reasonable grounds for knowing or suspecting,

that another person has committed an offence under any of articles 6 to 9.

(3) The second condition is that the information or other matter—

(a)on which his knowledge or suspicion is based, or

(b)which gives reasonable grounds for such knowledge or suspicion,

came to him in the course of a business in the regulated sector.

(4) The third condition is that he does not disclose the information or other matter to a constable or a nominated officer as soon as is reasonably practicable after it comes to him.

(5) But a person does not commit an offence under this paragraph if—

(a)he has a reasonable excuse for not disclosing the information or other matter, or

(b)he is a professional legal adviser and the information or other matter came to him in privileged circumstances.

(6) In deciding whether a person committed an offence under this paragraph the court must consider whether he followed any relevant guidance which was at the time concerned—

(a)issued by a supervisory authority or any other appropriate authority,

(b)approved by the Governor, and

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

(7) A certificate signed by or behalf of the Governor (or a true copy of such a certificate) that a matter was, or was not, approved by the Governor at any material time for the purposes of sub-paragraph (6) shall be conclusive evidence of that fact in any legal proceedings, and a document which purports to be such a certificate (or to be a true copy of such a certificate) shall be received in evidence in any legal proceedings and shall, until the contrary is proved, be deemed to be such a certificate (or such a copy).

(8) A disclosure to a nominated officer is a disclosure which—

(a)is made to a person nominated by the alleged offender’s employer to receive disclosures under this paragraph, and

(b)is made in the course of the alleged offender’s employment and in accordance with the procedure established by the employer for the purpose.

(9) Information or other matter comes to a professional legal adviser in privileged circumstances if it is communicated or given to him—

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

(b)by (or by a representative of) a person seeking legal advice from the adviser, or

(c)by a person in connection with legal proceedings or contemplated legal proceedings.

(10) But sub-paragraph (9) does not apply to information or other matter which is communicated or given with a view to furthering a criminal purpose.

(11) For the purposes of sub-paragraph (2) a person is taken to have committed an offence there mentioned if—

(a)he has taken an action or been in possession of a thing, and

(b)he would have committed an offence if he had been in the Territory at the time when he took the action or was in possession of the thing.

(12) For the purposes of this paragraph a business is in the regulated sector if it is for the time being specified as being in the regulated sector, or if it belongs to a class of businesses that is for the time being specified as being in the regulated sector, by order made by the Governor.

(13) For the purposes of this paragraph a supervisory authority, in relation to a business or a class of businesses within the regulated sector, is any authority that is for the time being specified in that behalf by order made by the Governor, and any such order may specify an authority as a supervisory authority in relation to a particular business within that sector or in relation to a particular class or particular classes of businesses within that sector or in relation to businesses within that sector in general.

(14) For the purposes of this paragraph an appropriate body is any body which regulates or is representative of any trade, profession, business or employment carried on by the alleged offender.

(15) A person guilty of an offence under this paragraph is liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding five years, to a fine or to both, or

(b)on summary conviction, to imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both.

Protected disclosures

2.—(1) A disclosure which satisfies the following three conditions is not to be taken to breach any restriction on the disclosure of information (however imposed).

(2) The first condition is that the information or other matter disclosed came to the person making the disclosure (the discloser) in the course of a business in the regulated sector.

(3) The second condition is that the information or other matter—

(a)causes the discloser to know or suspect, or

(b)gives him reasonable grounds for knowing or suspecting,

that another person has committed an offence under any of articles 6 to 9.

(4) The third condition is that the disclosure is made to a constable or nominated officer as soon as is practicable after the information or other matter comes to the discloser.

(5) A disclosure to a nominated officer is a disclosure which—

(a)is made to a person nominated by the discloser’s employer to receive disclosures under this paragraph, and

(b)is made in the course of the discloser’s employment and in accordance with the procedure established by the employer for that purpose.

(6) A business is within the regulated sector for the purposes of this paragraph if it is such a business, in accordance with sub-paragraph (12) of paragraph 1, for the purposes of that paragraph.

PART 2Public Sector

Authorised or required disclosures

3.—(1) Notwithstanding any restriction otherwise imposed by any law for the time being in force in the Territory on the disclosure by a specified public officer or a specified public authority of information obtained in an official capacity by that officer or authority, that officer or authority may, and shall if so directed by the Governor under this paragraph, disclose such information for any of the purposes to which this paragraph applies.

(2) A direction given by the Governor under this paragraph may specify the information to be disclosed, the person or authority to whom it is to be disclosed and the manner in which, and any conditions subject to which, it is to be disclosed.

(3) The information that may, or may be directed to be, disclosed under this paragraph includes information obtained before the commencement of this paragraph.

(4) It is an offence to fail to comply with a direction given by the Governor under this paragraph, and any person guilty of such an offence shall be liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding five years, to a fine or to both, or

(b)on summary conviction, to imprisonment to a term not exceeding six months, to a fine not exceeding the statutory maximum or to both.

(5) The purposes to which this paragraph app1ies are—

(a)the purposes of any terrorist finance criminal investigation which is being or may be carried out, whether in the Territory or elsewhere;

(b)the purposes of any terrorist finance criminal proceedings which have been or may be initiated, whether in the Territory or e1sewhere;

(c)the purposes of the initiation or bringing to an end of any such investigation or proceedings;

(d)the purpose of facilitating a determination of whether any such investigation or proceedings should be initiated or brought to an end.

(6) Nothing in this paragraph shall be taken to prejudice any power to disclose information which exists apart from this paragraph.

(7) In this paragraph—

• “conduct” includes acts, omissions and statements;

• “information” includes documents;

• “specified public authority” means authority that is for the time being specified for the purposes of this paragraph by an order made by the Governor;

• “specified public officer” means any person holding or acting in any office that is for the time being specified for the purposes of this paragraph by an order made by the Governor;

• “terrorist finance criminal investigation” means an investigation of any conduct which—

  (a)

  constitutes one or more terrorist finance offences; or

  (b)

  is, or corresponds to, conduct which, if it all took place in the Territory, would constitute such an offence or such offences;

  and includes an investigation of any alleged or suspected such conduct and an investigation of whether any such conduct has taken place;

• “terrorist finance criminal proceedings” means proceedings for a terrorist finance offence or for terrorist finance offences or, if they are proceedings outside the Territory, for an offence or offences substantially corresponding to a terrorist finance offence or to terrorist finance offences; and

• “terrorist finance offence” means an offence under any of articles 6 to 9.

Restriction on disclosure of information for overseas purposes

4.—(1) The Governor may give a direction which—

(a)specifies any overseas proceedings or overseas investigation or any description of such proceedings or investigations, and

(b)prohibits, either absolutely or in such cases, or subject to such conditions as to consent or otherwise, as may be specified in the direction, the making of any relevant disclosures for the purposes of those proceedings or that investigation or, as the case may be, proceedings or investigations of that description.

(2) In sub-paragraph (1) the reference, in relation to a direction, to a relevant disclosure is a reference to a disclosure which—

(a)is authorised by paragraph 3 or by or under any other law for the time being in force in the Territory, and

(b)is a disclosure of such information as is described in the direction.

(3) A person who discloses any information in contravention of a direction under this paragraph shall be guilty of an offence and shall be liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding two years, to a fine or to both;

(b)on summary conviction, to imprisonment for a term not exceeding three months, to a fine not exceeding the statutory maximum or to both.

(4) In this paragraph—

• “information” includes documents;

• “overseas investigation” means a terrorist finance criminal investigation (as defined in paragraph 3(7)) which is being, or will or may be, conducted by an authority of a country or territory outside the Territory;

• “overseas proceedings” means terrorist finance criminal proceedings (as defined in paragraph 3(7)) which are taking place, or will or may take place, in a country or territory outside the Territory.

Article 15

SCHEDULE 2FORFEITURE ORDERS

PART 1Territory Orders

Interpretation

1.  In this Schedule—

“forfeiture order” means an order made by a court under article 15, and

“forfeited property” means the money or other property to which a forfeiture order applies.

Implementation of forfeiture orders

2.—(1) Where a court makes a forfeiture order it may make such other provision as appears to it to be necessary for giving effect to the order, and in particular it may—

(a)require any of the forfeited property to be paid or handed over to the proper officer or to a constable designated for the purpose by the chief officer of the police force of the Territory;

(b)direct any of the forfeited property other than money or land to be sold or otherwise disposed of in such manner as the court may direct and the proceeds (if any) to be paid to the proper officer;

(c)appoint a receiver to take possession, subject to such conditions and exceptions as may be specified by the court, of any of the forfeited property, to realise it in such manner as the court may direct and to pay the proceeds to the proper officer;

(d)direct a specified part of any forfeited money, or of the proceeds of the sale, disposal or realisation of any forfeited property, to be paid by the proper officer to a specified person falling within article 15(7).

(2) A forfeiture order shall not come into force until there is no further possibility of it being varied or set aside on appeal (disregarding any power of a court to grant leave to appeal out of time).

(3) In sub-paragraph (1)(b) and (d) a reference to the proceeds of the sale, disposal or realisation of property is a reference to the proceeds after deduction of the costs of sale, disposal or realisation.

3.—(1) A receiver appointed under paragraph 2 shal1 be entitled to be paid his remuneration and expenses out of the proceeds of the property realised by the receiver and paid to the proper officer under paragraph 2(1)(c).

(2) If and so far as those proceeds are insufficient, the receiver shall be entitled to be paid his remuneration and expenses out of the funds of the government of the Territory.

(3) A receiver appointed under paragraph 2 shall not be liable to any person in respect of any loss or damage resulting from action—

(a)which he takes in relation to property which is not forfeited property, but which he reasonably believes to be forfeited property,

(b)which he would be entitled to take if the property were forfeited property, and

(c)which he reasonably believes that he is entitled to take because of his belief that the property is forfeited property.

(4) Sub-paragraph (3) does not apply in so far as the loss or damage is caused by the receiver’s negligence.

4.—(1) In paragraphs 2 and 3 “the proper officer” means the person holding or acting in the office (however styled) of clerk to the court by which the forfeiture order was made.

(2) The proper officer shall issue a certificate in respect of a forfeiture order if an application is made by—

(a)the prosecutor in the proceedings in which the forfeiture order was made,

(b)the defendant in those proceedings, or

(c)a person whom the court heard under article 15(7) before making the order.

(3) The certificate shall state the extent (if any) to which, at the date of the certificate, effect has been given to the forfeiture order.

Restraint orders

5.—(1) The Supreme Court may make a restraint order under this paragraph where—

(a)proceedings have been instituted for an offence under any of articles 6 to 9,

(b)the proceedings have not been concluded,

(c)an application for a restraint order is made to the Supreme Court by the prosecutor, and

(d)a forfeiture order has been made, or it appears to the Supreme Court that a forfeiture order may be made, in the proceedings for the offence.

(2) The Supreme Court may also make a restraint order under this paragraph where—

(a)a criminal investigation has been started with regard to an offence under any of articles 6 to 9,

(b)an application for a restraint order is made to the Supreme Court by a person who the Supreme Court is satisfied will have the conduct of any proceedings for the offence, and

(c)it appears to the Supreme Court that a forfeiture order may be made in any proceedings for the offence.

(3) A restraint order prohibits a person to whom notice of it is given, subject to any conditions and exceptions specified in the order, from dealing with property in respect of which a forfeiture order has been or could be made in any proceedings referred to in sub-paragraph (1) or (2).

(4) An application for a restraint order may be made ex parte to a judge in Chambers.

(5) In this paragraph a reference to dealing with property includes a reference to removing the property from the Territory.

(6) In this paragraph “criminal investigation” means an investigation which police officers or others have a duty to conduct with a view to it being ascertained whether a person should be charged with an offence.

6.—(1) A restraint order shall provide for notice of it to be given to any person affected by the order.

(2) A restraint order may be discharged or varied by the Supreme Court on the application of a person affected by it.

(3) A restraint order made under paragraph 5(1) shall in particular be discharged on an application under sub-paragraph (2) if the proceedings for the offence have been concluded.

(4) A restraint order made under paragraph 5(2) shall in particular be discharged on an application under sub-paragraph (2)—

(a)if no proceedings in respect of offences under any of articles 6 to 9 are instituted within such time as the Supreme Court considers reasonable, or

(b)if all proceedings in respect of offences under any of articles 6 to 9 have been concluded.

7.—(1) A constable may seize any property subject to a restraint order for the purpose of preventing it from being removed from the Territory.

(2) Property seized under this paragraph shall be dealt with in accordance with the Supreme Court’s directions.

8.—(1) Any provision of any law in force in the Territory with respect to land charges or land registration—

(a)shall apply in relation to restraint orders as they apply in relation to orders affecting land made by the court for the purpose of enforcing judgments or recognizances, and

(b)shall apply in relation to applications for restraint orders as they apply in relation to other pending land actions.

(2) Where a restraint order is made under paragraph 5(l) or an application for such an order is made, the prosecutor in the proceedings for the offence shall be treated for the purposes of any provision relating to inhibitions contained in any law in force in the Territory with respect to land registration as a person interested in respect of any registered land to which the restraint order or the application for the restraint order relates.

(3) Where a restraint order is made under paragraph 5(2) or an application for such an order is made, the person who the Supreme Court is satisfied will have the conduct of any proceedings for an offence under any of articles 6 to 9 shall be treated for the purposes of any such provision as is referred to in sub-paragraph (2) as a person interested in respect of any registered land to which the restraint order or the application for a restraint order relates.

Compensation

9.—(1) This paragraph applies where a restraint order is discharged under paragraph 6(4)(a).

(2) This paragraph also applies where a forfeiture order or a restraint order is made in or in relation to proceedings for an offence under any of articles 6 to 9 which—

(a)do not result in conviction for an offence under any of those articles,

(b)result in conviction for an offence under any of those articles in respect of which the person convicted is subsequently pardoned by Her Majesty, or

(c)result in conviction for an offence under any of those articles which is subsequently quashed.

(3) A person who has an interest in any property which was subject to the order may apply to the Supreme Court for compensation.

(4) The Supreme Court may order compensation to be paid to the applicant if satisfied—

(a)that there was a serious default on the part of a person concerned in the investigation or prosecution of the offence,

(b)that the person concerned was or was acting as a member of the police force of the Territory or was or was acting under the authority of the Attorney General or the Director of Public Prosecutions of the Territory,

(c)that the applicant has suffered loss in consequence of anything done in relation to the property by or in pursuance of the forfeiture order or restraint order, and

(d)that, having regard to all the circumstances, it is appropriate to order compensation to be paid.

(5) The Supreme Court shall not order compensation to be paid where it appears to it that proceedings for the offence would have been instituted even if the serious default had not occurred.

(6) Compensation payable under this paragraph shall be paid out of the funds of the government of the Territory.

Proceedings for an offence: timing

10.—(1) For the purpose of this Part of this Schedule, proceedings for an offence are instituted—

(a)when a summons or warrant is issued, or a complaint is laid, in respect of the offence;

(b)when a person is charged with the offence after being taken into custody without a warrant; or

(c)when a bill of indictment charging a person with the offence is preferred.

(2) Where the application of sub-paragraph (1) would result in there being more than one time for the institution of proceedings they shall be taken to be instituted at the earliest of those times.

(3) For the purposes of this Part of this Schedule proceedings are concluded—

(a)when a forfeiture order has been made in those proceedings and effect has been given to it in respect of all the forfeited property, or

(b)when no forfeiture order has been made in those proceedings and there is no further possibility of one being made as a result of an appeal (disregarding any power of a court to grant leave to appeal out of time).

PART 2External Orders

Enforcement of orders made in designated countries

11.—(1) The Governor may by order make provision for the purpose of enabling the enforcement in the Territory of external orders.

(2) An “external order” means an order—

(a)which is made in a country or territory (including any part of the United Kingdom or any territory to which this Order extends or any other British overseas territory) that is designated for the purposes of this paragraph by the order made by the Governor, and

(b)which makes relevant provision.

(3) “Relevant provision” means—

(a)provision for the forfeiture of terrorist property (“an external forfeiture order”), or

(b)provision prohibiting dealing with property which is subject to an external forfeiture order or in respect of which such an order could be made in proceedings which have been or are to be instituted in the designated country or territory (“an external restraint order”).

(4) An order made by the Governor under this paragraph may, in particular, include provision—

(a)which, for the purpose of facilitating the enforcement of an external order that may be made, has effect at times before there is an external order to be enforced;

(b)which disapplies, or qualifies or modifies the application of, any of the provisions of sub-paragraphs (6)(b) and (7) to (14) of this paragraph to or in relation to any specified external order (or any specified class of such orders) made in a specified designated country or territory;

(c)for the proof of any matter relevant for the purposes of anything falling to be done in pursuance of the order made by the Governor.

(5) An order made by the Governor under this paragraph may also make provision with respect to anything falling to be done on behalf of the Territory in a designated country or territory in relation to proceedings in that country or territory for or in connection with the making of an external order.

(6) An external order shall be enforced in the Territory only in accordance with—

(a)the provisions of, or any provisions made under, this paragraph, and

(b)any provisions made by rules of court as to the manner in which, and the conditions subject to which, such orders are to be enforced there.

(7) On an application made to it in accordance with rules of court for registration of an external order made in a designated country or territory, the Supreme Court shall direct that the order shall, in accordance with such rules, be registered in that Court.

(8) Rules of court shall also make provision—

(a)for cancelling or varying the registration of an external forfeiture order when effect has been given to it, whether in the Territory or elsewhere, in respect of all or, as the case may be, part of the money or other property to which the order applies; and

(b)for cancelling or varying the registration of an external restraint order which has been discharged or varied by the court by which it was made.

(9) If an external forfeiture order is registered under this paragraph, the Supreme Court shall have, in relation to that order, the same powers as a court has under paragraph 2(1) to give effect to a forfeiture order made by it, and—

(a)paragraphs 3 and 4 shall apply accordingly, and

(b)after making any payments required by virtue of paragraph 2(1)(d) or (3), the balance of any sums received by the proper officer (as defined by paragraph 4(1)) by virtue of an order made under this sub-paragraph shall be paid by him to the Governor.

(10) If an external restraint order is registered under this paragraph—

(a)paragraphs 7 and 8 shall apply as they apply to a restraint order under paragraph 5, and

(b)the Supreme Court shall have the like power, in relation to proceedings brought or likely to be brought for that order, to make an order for inspection of property or for related matters as it would have, under any law for the time being in force in the Territory, if those proceedings had been brought or were likely to be brought in the Supreme Court.

(11) In addition, if an external order is registered under this paragraph—

(a)the Supreme Court shall have, in relation to its enforcement, the same power as if the order had originally been made in the Supreme Court,

(b)proceedings for or with respect to its enforcement may be taken as if the order had originally been made in the Supreme Court, and

(c)proceedings for or with respect to contravention of such an order, whether before or after such registration, may be taken as if the order had originally been made in the Supreme Court.

(12) The Supreme Court may also make such orders or do otherwise as seems to it appropriate for the purpose of—

(a)assisting the achievement in the Territory of the purposes of an external order that has been registered under this paragraph, or

(b)assisting a receiver or other person directed by such an external order to sell or otherwise dispose of property.

(13) The following documents shall be received in evidence in the Territory without further proof—

(a)a document purporting to be a copy of an external order and to be certified as such by a proper officer of the court by which it was made, and

(b)a document purporting to be a certificate for purposes corresponding to those of paragraph 4(2) and (3) and to be certified by a proper officer of the court concerned.

(14) Where, under any of the provisions of this paragraph, a thing is to be done in accordance with rules of court, it may, if there are for the time being no rules of court in force in the Territory governing that matter, be done in accordance with such directions in that behalf as may be given by a judge of the Supreme Court on application made ex parte to him in Chambers.

(15) An order made by the Governor under this paragraph may make different provision for different cases.

PART 3Insolvency

General

12.  In this Part of this Schedule—

“ancillary order” means an order made in connection with a forfeiture, other than the forfeiture order,

“forfeiture order” means an order made in the Territory under article 15 or an external forfeiture order which is enforceable in the Territory by virtue of an order made by the Governor under paragraph 11,

“forfeited property” means the money or other property to which a forfeiture order applies, and

“restraint order” means an order made under paragraph 5 or an external restraint order which is enforceable in the Territory by virtue of an order made by the Governor under paragraph 11.

Protection of creditors against forfeiture

13.—(1) During the period of six months beginning with the making of a forfeiture order, the following shall not be finally disposed of under this Schedule—

(a)the money to which the order applies, and

(b)the money which represents any property to which the order applies.

(2) For the purposes of this paragraph money is finally disposed of under this Schedule when—

(a)in the case of a forfeiture order made in the Territory, it is paid to the person or authority authorised by law to receive the proceeds of fines, or

(b)in the case of an external forfeiture order, it is paid to the Governor under paragraph 11(9)(b).

14.—(1) This paragraph applies where—

(a)before or after a forfeiture order is made, the commencement of an insolvency occurs in qualifying insolvency proceedings,

(b)an insolvency practitioner would, but for the forfeiture order, exercise a function in those proceedings in relation to property to which the forfeiture order applies, and

(c)he gives written notice to the relevant officer of the matters referred to in sub- paragraphs (a) and (b) before the end of the period of six months beginning with the making of the forfeiture order.

(2) Sub-paragraph (3) shall apply to—

(a)the property in relation to which the insolvency practitioner would, but for the forfeiture order, exercise a function as described in sub-paragraph (l)(b), and

(b)the proceeds of sale of that property.

(3) The property—

(a)shall cease to be subject to the forfeiture order and any ancillary order, and

(b)shall be dealt with in the insolvency proceedings as if the forfeiture order had never been made.

(4) But—

(a)the property to which sub-paragraph (3) applies is the balance remaining after the relevant officer has exercised his powers under paragraph 17(1), and

(b)sub-paragraph (3) shall not take effect in respect of property in relation to which the relevant officer, or any person acting in pursuance of an ancillary order, has incurred obligations until those obligations have been discharged.

(5) In this paragraph “the commencement of an insolvency” means—

(a)the making of a bankruptcy order,

(b)in the case of the insolvent estate of a deceased person, the making of an insolvency administration order, or

(c)in the case of a company, the passing of a resolution for its winding up or, where no such resolution has been passed, the making of an order by a court for its winding up.

15.—(1) Where by virtue of paragraph 14(3) property falls to be dealt with in insolvency proceedings, the Governor shall be taken to be a creditor in those proceedings for a debt to the amount or value of the property.

(2) The Governor’s debt—

(a)shall rank after the debts of all other creditors, and

(b)shall not be paid until they have been paid in full with interest under the relevant provision.

(3) In sub-paragraph (2)(b) the “relevant provision” means—

(a)in relation to the winding up of a company, the provision of the law for the time being in force in the Territory relating to such winding up on insolvency that provides for the payment, from any surplus remaining after the payment of debts proved on the winding up, of interest on those debts in respect of the periods during which they have been outstanding since the company went into liquidation, and

(b)in relation to a bankruptcy, the provision of the law for the time being in force in the Territory relating to bankruptcy that provides for the payment, from any surplus remaining after the payment of debts that are preferential or rank equally under such law, of interest on those debts in respect of the periods during which they have been outstanding since the commencement of the bankruptcy.

(4) Sub-paragraphs (2) and (3) apply notwithstanding any other law for the time being in force in the Territory.

16.—(1) This paragraph applies to any property which ceased to be subject to a forfeiture order by virtue of paragraph 14(3) in consequence of the making of a bankruptcy order.

(2) The property shall again become subject to the forfeiture order and, if applicable, any ancillary order if the bankruptcy order is annulled.

(3) Where the property is money or has been converted into money—

(a)the court which ordered the annulment of the bankruptcy shall make an order specifying property comprised in the estate of the bankrupt or debtor to the amount or value of the property, and

(b)the specified property shall become subject to the forfeiture order, and any applicable ancillary order, in place of the property.

17.—(1) Where money or other property falls to be dealt with in accordance with paragraph 14(3), the relevant officer may—

(a)deduct allowable forfeiture expenses from that money;

(b)retain so much of that property as he considers necessary for the purpose of realising it and deducting allowable forfeiture expenses from the proceeds of realisation.

(2) Where property is delivered up in pursuance of paragraph 14(3) and the relevant officer has not made provision under sub-paragraph (1) for all the allowable forfeiture expenses, then—

(a)a person who has incurred allowable forfeiture expenses for which provision has not been made shall have a claim to their value in the insolvency proceedings, and

(b)the expenses in question shall be treated for the purposes of the insolvency proceedings as if they were expenses of those proceedings.

Protection of insolvency practitioners

18.—(1) This paragraph applies where an insolvency practitioner seizes or disposes of property which is subject to a forfeiture order or a restraint order and—

(a)he reasonably believes that he is entitled to do so in the exercise of his functions, and

(b)he would be so entitled if the property were not subject to a forfeiture order or a restraint order.

(2) The insolvency practitioner shall not be liable to any person in respect of any loss or damage resulting from the seizure or disposal except in so far as the loss or damage is caused by his negligence.

(3) The insolvency practitioner shall have a lien on the property seized or the proceeds of its sale—

(a)for such of his expenses as were incurred in connection with the insolvency proceedings in relation to which the seizure or disposal purported to take place, and

(b)for so much of his remuneration as may be reasonably assigned for his acting in connection with those proceedings.

(4) Sub-paragraphs (1) to (3) are without prejudice to the generality of any provision contained in any law relating to insolvency for the time being in force in the Territory.

(5) In this paragraph “insolvency practitioner” means a person acting as such and, for the purposes of this paragraph, the question whether any person is acting as such shall be determined in accordance with sub-paragraphs (6), (7) and (8) except that the expression shall also include an Official Receiver (however styled) acting as receiver or manager of property.

(6) For the purposes of this paragraph a person acts as an insolvency practitioner in relation to a company by acting—

(a)as its liquidator, provisional liquidator, administrator or administrative receiver, or

(b)as supervisor of a voluntary arrangement approved by it under the law for the time being in force in the Territory relating to the insolvency of companies.

(7) For the purposes of this paragraph a person acts as an insolvency practitioner in relation to an individual by acting—

(a)as his trustee in bankruptcy or interim receiver of his property, or

(b)as trustee under a deed which is a deed of arrangement made for the benefit of his creditors, or

(c)as supervisor of a voluntary arrangement proposed by him and approved under the law for the time being in force in the Territory relating to the insolvency of individuals, or

(d)in the case of a deceased individual to whose estate the provisions of the law for the time being in force in the Territory relating to the administration of the insolvent estates of deceased persons apply, as administrator of that estate.

(8) References in sub-paragraph (7) to an individual include, except in so far as the context otherwise requires, references to a partnership.

19.—(1) The Governor may make an order under this paragraph to secure that an external insolvency practitioner has the same rights under this Part of this Schedule in relation to property situated in the Territory as he would have if he were an insolvency practitioner in the Territory.

(2) An order made this paragraph may, in particular, include—

(a)provision which modifies the rights under this Part of this Schedule which are to be conferred under the order;

(b)provision as to the manner in which the rights conferred under the order are to be exercised;

(c)provision as to the conditions subject to which those rights are to be exercised, including the obtaining of leave from a court;

(d)provision empowering a court granting such leave to impose such conditions as it thinks fit.

(3) An order under this paragraph may make different provision for different purposes.

(4) In this paragraph—

(a)“external insolvency practitioner” means a person exercising under the insolvency law of a designated country or territory (that is to say, a country or territory designated as mentioned in paragraph 11) functions corresponding to those exercised by insolvency practitioners under the insolvency law of the Territory,

(b)“the insolvency law of the Territory” means the provisions of the law for the time being in force in the Territory relating to insolvency and includes any provisions of the law for the time being in force in the Territory relating to companies which regulate the disqualification of company directors, and

(c)“the insolvency law of a designated country or territory” means so much of the law for the time being in force in that country or territory as corresponds to provisions falling within sub-paragraph (b).

Interpretation

20.—(1) In this Part of this Schedule (other than in paragraph 18) “insolvency practitioner” means a person acting in any qualifying insolvency proceedings in the Territory as—

(a)a liquidator of a company or partnership,

(b)a trustee in bankruptcy,

(c)an administrator of the insolvent estate of a deceased person, or

(d)a receiver or manager of any property.

(2) In this Part of this Schedule “qualifying insolvency proceedings” means—

(a)any proceedings, under any law for the time being in force in the Territory relating to insolvency, for the winding up of a company or an unregistered company and includes any voluntary winding up of a company under any such law,

(b)any proceedings, under any such law, for the winding up of an insolvent partnership,

(c)any proceedings in bankruptcy, or

(d)any proceedings, under any such law, in relation to the insolvent estate of a deceased person.

(3) In this Part of this Schedule “the relevant officer” means the proper officer within the meaning given in paragraph 4.

(4) In this Part of this Schedule references to the proceeds of sale or realisation of property are references to the proceeds after deduction of the costs of sale or realisation.

Article 16

SCHEDULE 3FORFEITURE OF TERRORIST CASH

PART 1Introductory

Terrorist cash

1.—(1) This Schedule applies to cash (“terrorist cash”) which—

(a)is within article 16(1)(a), or

(b)is property earmarked as terrorist property.

(2) “Cash” means—

(a)coins and notes in any currency,

(b)postal orders,

(c)cheques of any kind, including travellers' cheques,

(d)bankers' drafts,

(e)bearer bonds and bearer shares, found at any place in the Territory.

(3) Cash also includes any kind of monetary instrument found at any place in the Territory if the instrument is specified by the Governor by order.

PART 2Seizure and Detention

Seizure of cash

2.—(1) An authorised officer may seize any cash if he has reasonable grounds for suspecting that it is terrorist cash.

(2) An authorised officer may also seize cash part of which he has reasonable grounds for suspecting to be terrorist cash if it is not reasonably practicable to seize only that part.

Detention of seized cash

3.—(1) While the authorised officer continues to have reasonable grounds for his suspicion, cash seized under this Schedule may be detained initially for a period of 48 hours.

(2) The period for which the cash or any part of it may be detained may be extended by an order made by a magistrates' court; but the order may not authorise the detention of any of the cash—

(a)beyond the end of the period of three months beginning with the date of the order, and

(b)in the case of any further order under this paragraph, beyond the end of the period of two years beginning with the date of the first order.

(3) A justice of the peace or magistrate may also exercise the power of a magistrates' court to make the first order under sub-paragraph (2) extending the period.

(4) An order under sub-paragraph (2) must provide for notice to be given to persons affected by it.

(5) An application for an order under sub-paragraph (2) may be made by an authorised officer, and the court or justice or magistrate may make the order if satisfied, in relation to any cash to be further detained, that one of the following conditions is met.

(6) The first condition is that there are reasonable grounds for suspecting that the cash is intended to be used for the purposes of terrorism and that either—

(a)its continued detention is justified while its intended use is further investigated or consideration is given to bringing (in the Territory or elsewhere) proceedings against a person for an offence with which the cash is connected, or

(b)proceedings against any person for an offence with which the cash is connected have been started (in the Territory or elsewhere) and have not been concluded.

(7) The second condition is that there are reasonable grounds for suspecting that the cash is property earmarked as terrorist property and that either—

(a)its continued detention is justified while its derivation is further investigated or consideration is given to bringing (in the Territory or elsewhere) proceedings against any person for an offence with which the cash is connected, or

(b)proceedings against any person for an offence with which the cash is connected have been started (in the Territory or elsewhere) and have not been concluded.

Payment of detained cash into an account

4.—(1) If cash is detained under this Schedule for more than 48 hours, it is to be held in an interest-bearing account and the interest accruing on it is to be added to it on its forfeiture or release.

(2) In the case of cash seized under paragraph 2(2), the authorised officer must, on paying it into the account, release so much of it as is not attributable to terrorist cash.

(3) Sub-paragraph (1) does not apply if the cash is required as evidence of an offence or evidence in proceedings under this Schedule.

Release of detained cash

5.—(1) This paragraph applies while any cash is detained under this Schedule.

(2) A magistrates' court may direct the release of the whole or any part of the cash if satisfied, on an application by the person from whom it was seized, that the conditions in paragraph 3 for the detention of cash are no longer met in relation to the cash to be released.

(3) An authorised officer may, after notifying the magistrates' court or justice or magistrate under whose order cash is being detained, release the whole or any part of it if satisfied that the detention of the cash to be released is no longer justified.

(4) But cash is not to be released—

(a)if an application for its forfeiture under paragraph 6, or for its release under paragraph 9, is made, until any proceedings in pursuance of the application (including any proceedings on appeal) are concluded,

(b)if (in the Territory or elsewhere) proceedings are started against any person for an offence with which the cash is connected, until the proceedings are concluded.

PART 3Forfeiture

Forfeiture

6.—(1) While cash is detained under this Schedule, an application for the forfeiture of the whole or any part of it may be made to a magistrates' court by an authorised officer.

(2) The court may order the forfeiture of the cash or any part of it if satisfied that the cash or part is terrorist cash.

(3) In the case of property earmarked as terrorist property which belongs to joint tenants one of whom is an excepted joint owner, the order may not apply to so much of it as the court thinks is attributable to the excepted joint owner’s share.

(4) An excepted joint owner is a joint tenant who obtained the property in circumstances in which it would not (as against him) be earmarked; and references to his share of the earmarked property are references to so much of the property as would have been his if the joint tenancy had been severed.

Appeal against forfeiture

7.—(1) Any party to proceedings in which an order is made under paragraph 6 (“a forfeiture order”) who is aggrieved by the order may appeal to the Supreme Court.

(2) An appeal under sub-paragraph (1) must be made within the period of 30 days beginning with the date on which the order is made.

(3) The appeal is to be by way of a rehearing.

(4) The court hearing the appeal may make any order it thinks appropriate.

(5) If the court upholds the appeal, it may order the release of the cash.

Application of forfeited cash

8.—(1) Cash forfeited under this Schedule, and any accrued interest on it, is to be paid into the funds of the government of the Territory.

(2) But it is not to be paid in—

(a)before the end of the period within which an appeal under paragraph 7 may be made, or

(b)if a person appeals under that paragraph, before the appeal is determined or otherwise disposed of.

PART 4Miscellaneous

Victims

9.—(1) A person who claims that any cash detained under this Schedule, or any part of it, belongs to him may apply to a magistrates' court for the cash or part to be released to him under this paragraph.

(2) The application may be made in the course of proceedings under paragraph 3 or 6 or at any other time.

(3) If it appears to the court concerned that—

(a)the applicant was deprived of the cash claimed, or of property which it represents, by criminal conduct,

(b)the property he was deprived of was not, immediately before he was deprived of it, property obtained by or in return for criminal conduct and nor did it then represent such property, and

(c)the cash claimed belongs to him,

the court may order the cash to be released to the applicant.

Compensation

10.—(1) If no forfeiture order is made in respect of any cash detained under this Schedule, the person to whom the cash belongs or from whom it was seized may make an application to the magistrates' court for compensation.

(2) If, for any period after the initial detention of the cash for 48 hours, the cash was not held in an interest-bearing account while detained, the court may order an amount of compensation to be paid to the applicant.

(3) The amount of compensation to be paid under sub-paragraph (2) is the amount the court thinks would have been earned in interest in the period in question if the cash had been held in an interest-bearing account.

(4) If the court is satisfied that, taking account of any interest to be paid under this Schedule or any amount to be paid under sub-paragraph (2), the applicant has suffered loss as a result of the detention of the cash and that the circumstances are exceptional, the court may order compensation (or additional compensation) to be paid to him.

(5) The amount of compensation to be paid under sub-paragraph (4) is the amount the court thinks reasonable, having regard to the loss suffered and any other relevant circumstances.

(6) Any compensation ordered to be paid under this paragraph is to be paid out of the funds of the government of the Territory.

(7) If a forfeiture order is made in respect only of a part of any cash detained under this Schedule, this paragraph has effect in relation to the other part.

(8) This paragraph does not apply if the court makes an order under paragraph 9.

PART 5Property Earmarked as Terrorist Property

Property obtained through terrorism

11.—(1) A person obtains property through terrorism if he obtains property by or in return for acts of terrorism, or acts carried out for the purposes of terrorism.

(2) In deciding whether any property was obtained through terrorism—

(a)it is immaterial whether or not any money, goods or services were provided in order to put the person in question in a position to carry out the acts, and

(b)it is not necessary to show that the acts were of a particular kind if it is shown that the property was obtained though acts of one of a number of kinds, each of which would have been an act of terrorism, or an act carried out for the purposes of terrorism.

Properly earmarked as terrorist property

12.—(1) Property obtained through terrorism is earmarked as terrorist property.

(2) But if property obtained through terrorism has been disposed of (since it was so obtained), it is earmarked as terrorist property only if it is held by a person into whose hands it may be followed.

(3) Property may be followed into the hands of a person obtaining it on a disposal by—

(a)the person who obtained the property through terrorism, or

(b)a person into whose hands it may (by virtue of this sub-paragraph) be followed.

Tracing property

13.—(1) Where property obtained through terrorism (“the original property”) is or has been earmarked as terrorist property, property which represents the original property is a1so earmarked.

(2) If a person enters into a transaction by which—

(a)he disposes of the original property or of property which (by virtue of this Part) represents the original property, and

(b)he obtains other property in place of it,

the other property represents the original property.

(3) If a person disposes of property which represents the original property, the property may be followed into the hands of a person who obtains it (and it continues to represent the original property).

Mixing property

14.—(1) Sub-paragraph (2) applies if a person’s property which is earmarked as terrorist property is mixed with other property (whether his property or another's).

(2) The portion of the mixed property which is attributable to the property earmarked as terrorist property represents the property obtained through terrorism.

(3) Property earmarked as terrorist property is mixed with other property if (for example) it is used—

(a)to increase funds held in a bank account,

(b)in part payment for the acquisition of an asset,

(c)for the restoration or improvement of land,

(d)by a person holding a leasehold interest in the property to acquire the freehold.

Accruing profits

15.—(1) This paragraph applies where a person who has property earmarked as terrorist property obtains further property consisting of profits accruing in respect of the earmarked property.

(2) The further property is to be treated as representing the property obtained through terrorism.

General exceptions

16.—(1) If—

(a)a person disposes of property earmarked as terrorist property, and

(b)the person who obtains it on the disposal does so in good faith, for value and without notice that it was earmarked.

the property may not be followed into that person’s hands and, accordingly, it ceases to be earmarked.

(2) If—

(a)in pursuance of a judgment in civil proceedings (whether in the Territory or elsewhere), the defendant makes a payment to the plaintiff or the plaintiff otherwise obtains property from the defendant,

(b)the plaintiff’s claim is based on the defendant’s criminal conduct, and

(c)apart from this sub-paragraph, the sum received, or the property obtained, by the plaintiff would be earmarked as terrorist property,

the property ceases to be earmarked.

(3) If—

(a)under any law in force in the Territory, a payment is made to any person, or a person otherwise obtains property, in pursuance of a compensation order or a restitution order made in respect of loss or injury suffered in consequence of criminal conduct or other misconduct, and

(b)apart from this sub-paragraph, the sum received, or the property obtained, would be earmarked as terrorist property,

the property ceases to be earmarked.

(4) Where—

(a)a person enters into a transaction to which paragraph 13(2) applies, and

(b)the disposal is one to which sub-paragraph (1) applies,

this paragraph does not affect the question whether (by virtue of paragraph 13(2)) any property obtained on the transaction in place of the property disposed of is earmarked.

PART 6Exercise of Officers' Powers

General

17.  An authorised officer may enter any premises for the purposes of exercising any of the functions conferred on him by virtue of this Schedule.

18.  An authorised officer may if necessary use reasonable force for the purpose of exercising a power conferred on him by virtue of this Schedule.

Information

19.  Information acquired by an authorised officer may be supplied—

(a)to a customs officer;

(b)to a constable;

(c)to a person specified by order of the Governor for use of a kind specified in the order.

PART 7Interpretation

Property

20.—(1) Property is all property wherever situated and includes—

(a)money,

(b)all forms of property, real or personal, heritable or moveable,

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

(2) Any reference to a person’s property (whether expressed as a reference to the property he holds or otherwise) is to be read as follows.

(3) In relation to land, it is a reference to any interest which he holds in the land.

(4) In relation to property other than land, it is a reference—

(a)to the property (if it belongs to him), or

(b)to any other interest which he holds in the property.

Obtaining and disposing of property

21.—(1) References to a person disposing of his property include a reference—

(a)to his disposing of a part of it, or

(b)to his granting an interest in it,

(or to both); and references to the property disposed of are references to any property obtained on the disposal.

(2) If a person grants an interest in property of his which is earmarked as terrorist property, the question whether the interest is also earmarked is to be determined in the same manner as it is on any other disposal of earmarked property.

(3) A person who makes a payment to another is to be treated as making a disposal of his property to the other, whatever form the payment takes.

(4) Where a person’s property passes to another under a will or intestacy or by operation of law, it is to be treated as disposed of by him to the other.

(5) A person is only to be treated as having obtained his property for value in a case where he gave unexecuted consideration if the consideration has become executed consideration.

General interpretation

22.—(1) In this Schedule—

“authorised officer” means a constable, a customs officer or an immigration officer,

“cash” has the meaning given by paragraph 1,

“criminal conduct” means conduct which constitutes an offence in the Territory, or would constitute an offence in the Territory if it occurred there,

“forfeiture order” has the meaning given by paragraph 7,

“interest” means—

“part”, in relation to property, includes a portion,

“property earmarked as terrorist property” is to be read in accordance with Part 5,

“property obtained through terrorism” has the meaning given by paragraph 11,

“terrorist cash” has the meaning given by paragraph 1,

“value” means market value.

(2) Paragraphs 20 and 21 and the following provisions apply for the purposes of this Schedule.

(3) For the purpose of deciding whether or not property was earmarked as terrorist property at any time (including times before the commencement of this Order), it is to be assumed that this Schedule was in force at that and any other relevant time.

(4) Proceedings against any person for an offence are concluded when—

(a)the person is convicted or acquitted,

(b)the prosecution is discontinued, or

(c)the jury is discharged without a finding.

Article 17

SCHEDULE 4ACCOUNT MONITORING ORDERS

Interpretation

1.—(1) In this Schedule, “financial institution” means—

(a)a person who carries on a business of taking deposits for which he is authorised under a law of the Territory relating to banking,

(b)a building society authorised to operate as such under any law of the Territory in that behalf,

(c)a credit union authorised to operate as such under any law of the Territory in that behalf,

(d)a person who carries on an investment business for which he is authorised under any law of the Territory relating to the conduct of such businesses,

(e)a Savings Bank or a Development Bank established by or under any law of the Territory, and

(f)a person who carries on an insurance or reinsurance business under any law of the Territory relating to the conduct of such businesses.

(2) The Governor may by order provide for a class of person—

(a)to be a financial institution for the purposes of this Schedule, or

(b)to cease to be a financial institution for the purposes of this Schedule.

(3) An institution which ceases to be a financial institution for the purposes of this Schedule (whether by virtue of sub-paragraph (2)(b) or otherwise) shall continue to be treated as a financial institution for the purposes of any requirement under this Schedule to provide information which relates to a time when the institution was a financial institution.

(4) In this Schedule “the court” means the Supreme Court and “judge” means a judge of that Court.

Account monitoring orders

2.—(1) A judge may, on application made to him by a constable, make an account monitoring order if he is satisfied that—

(a)the order is sought for the purposes of a terrorist investigation,

(b)the tracing of terrorist property is desirable for the purposes of the investigation,

• and

  (c)

  the order will enhance the effectiveness of the investigation.

(2) The application for an account monitoring order must state that the order is sought against the financial institution specified in the application in relation to information which—

(a)relates to an account or accounts held at the institution by the person specified in the application (whether solely or jointly with another), and

(b)is of the description so specified.

(3) The application for an account monitoring order may specify information relating to—

(a)all accounts held by the person specified in the application for the order at the financial institution so specified,

(b)a particular description, or particular descriptions, of accounts so held, or

(c)a particular account, or particular accounts, so held.

(4) An account monitoring order is an order that the financial institution specified in the application for the order must—

(a)for the period specified in the order,

(b)in the manner so specified,

(c)at or by the time or times so specified, and

(d)at the place or places so specified,

provide information of the description specified in the application to a constable.

(5) The period stated in an account monitoring order must not exceed the period of 90 days beginning with the day on which the order is made.

Applications

3.—(1) An application for an account monitoring order may be made ex parte to a judge in Chambers.

(2) The description of information specified in an application for an account monitoring order may be varied by the constable who made the application or by any other constable.

Discharge or variation

4.—(1) An application to discharge or vary an account monitoring order may be made to the court by—

(a)the constable who applied for the order or any other constable;

(b)any person affected by the order.

(2) The court—

(a)may discharge the order;

(b)may vary the order.

Rules of court

5.  Rules of court may make provision as to the practice and procedure to be followed in connection with proceedings relating to account monitoring orders.

Effect of orders

6.—(1) An account monitoring order has effect as if it were an order of the court.

(2) An account monitoring order has effect in spite of any restriction on the disclosure of information (however imposed).

Statements

7.—(1) A statement made by a financial institution in response to an account monitoring order may not be used in evidence against it in criminal proceedings.

(2) But sub-paragraph (1) does not apply—

(a)in the case of proceedings for contempt of court;

(b)in the case of proceedings under article 15 where the financial institution has been convicted of an offence under any of articles 6 to 9;

(c)on a prosecution for an offence where, in giving evidence, the financial institution makes a statement inconsistent with the statement mentioned in sub-paragraph (1).

(3) A statement may not be used by virtue of sub-paragraph (2)(c) against a financial institution unless—

(a)evidence relating to it is adduced, or

(b)a question relating to it is asked,

by or on behalf of the financial institution in the proceedings arising out of the prosecution.

Explanatory Note

(This note is not part of the Order)

This Order makes provision, for certain British overseas territories, corresponding to various provisions of the Terrorism Act 2000 and the Anti-terrorism, Crime and Security Act 2001 which deal with the financing of terrorism and related matters. The Order extends to Anguilla, the Falkland Islands, Montserrat, St Helena and Dependencies, the Turks and Caicos Islands, and the Virgin Islands.