The Anti-terrorism (Financial and Other Measures) (Overseas Territories) Order 2002

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.