1. OFFICE OF NATIONAL DRUG AND MONEY LAUNDERING CONTROL POLICY
FORFEITING THE PROCEEDS OF CORRUPTION A Seminar on Asset Forfeiture and Money Laundering for Member States of the Organization of American States ANTIGUA and BARBUDA MONEY LAUNDERING (PREVENTION) ACT 1996 AS AMENDED “CIVIL FORFEITURE” REGIME May 2-5, 2006 BY
PAULA GILFORD
LEGAL COUNSEL
OFFICE OF NATIONAL DRUG AND MONEY LAUNDERING CONTROL POLICY

2. Money laundering is a crime that is affecting the world hence the need to for countries to introduce new ways and means to deal with this global epidemic.
“The US President’s Commission on Organized Crime as long ago as 1986, stated:
‘to be successful, an attack on organized crime in our mainstream economy cannot rely solely on the enforcement of federal criminal laws…The Commission believes that a strategy aimed at the legitimate economic base of organized crime must build upon intervention measures as broad based as the nature of the threat posed by organized crime. A strategy in this area should also rely upon civil and regulatory measures tailored to the specific problems confronted.’ Anthony Kennedy
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3. It is based on this need to combat the growing trend of criminals seeking to hide the proceeds of their crime and the difficulty that is often encountered in the criminal process that Antigua and Barbuda has seen the need to introduce its civil forfeiture regime.
Antigua and Barbuda has therefore made provision for non-conviction based forfeiture and the process of divesting a criminal of the proceeds of his crime by the introduction into the Money Laundering (Prevention) Act (MLPA), as amended sections 18B, 20A and 20B.
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4. Section 18B was inserted into the MLPA in April 2001 with certain amendments being made to the section in December 2002.
Sections 18B and 20A of the (MLPA) make provision for the forfeiture of the proceeds of some unlawful activity or instrumentality or the profits of someone who has engaged in a money laundering activity.
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5. Section 20A an 20B were inserted into the MLPA in December 2002.
The procedure outlined by the section 20A and 20B of the MLPA, allow for forfeiture of such unlawfully acquired assets by a simpler procedure, whereby the court can decide whether it is more probable than not that a person has engaged in money laundering activity.
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6. Section 18B allows for the forfeiture of the proceeds of some unlawful activity or an instrumentality of an offence.
What is unique about the proceedings under these sections, is there is no need for:
criminal prosecution to be instituted before an application is made;
there to be a conviction; and
the institution or commencement of criminal proceedings cannot be used as a ground to stay these proceedings.
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7. The forfeiture/assessment proceedings can operate side by side with the criminal proceedings.
The law also makes provision for the person to whom the property belongs to, to provide the necessary evidence to show that the property was not obtained due to some unlawful activity and/or is an instrumentality or that the person was not engaged in a money laundering activity.
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8. Section 20B of the MLPA also makes provision for a defendant to pay to the Crown an amount that is assessed by the Court.
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NATURE OF PROCEEDINGS
The proceedings under sections 18B, 20A and 20B are civil in nature.
Therefore any question of fact to be decided by a court on an application made pursuant to either section 18B, 20A or 20B of the MLPA must be decided on the balance of probabilities.
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10. WHO MAKES THE APPLICATION
The Supervisory Authority is authorized under sections 18B, 20A and 20B of the MLPA to make an application for an order under section 18B, a civil forfeiture order or a civil proceeds assessment order respectively.
Under section 18B the application is made in relation to any currency that is seized pursuant to section 18A (1) of the MLPA.
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11. The application under section 20A is made in relation to “all or any of the interests in property that is the subject of the freeze order”.
The application under section 20B is made in relation to the value of the benefit a person has derived from money laundering activities.
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12. JURISDICTION
Where an application is made pursuant to section 18B, the application has to be made to the Magistrate.
Where an application is made pursuant to either section 20A or 20B, the application has to be made to a Judge of the High Court.
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13. AGAINST WHOM AN APPLICATION FOR FORFEITURE LIES
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AGAINST WHOM AN APPLICATION FOR FORFEITURE LIES
Section 18B
The application is made against a “…person from whom the currency was seized”.
The person need not be convicted of any offence, if it is alleged that the seized currency is an instrumentality of an offence.
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14. Section 20A
The application is made against a person who has “engaged in money laundering activity”.
For the purposes of this section a person is deemed to have “engaged in a money laundering activity”, if the person has done anything that at the time was a money laundering offence;
the person need not be charged for the money laundering offence:
if charged,
has been tried
has been tried and acquitted; or
has been convicted (even if the conviction has been quashed or set aside)
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15. If the application is made pursuant to section 20B the application must be made against a person who has engaged in a money laundering activity from which a benefit was derived.
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NOTICE OF APPLICATION
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Under sections 18B, 20A and 20B of the MLPA, the Supervisory Authority is required to give at least 14 days notice of an application for an order pursuant to section18A, a civil forfeiture order or a civil proceeds assessment order, to:
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17. the person from whom the currency was seized or a defendant; or
any person he has reason to believe may have an interest in the seized currency or the property that is the subject of the application.
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18. Notice may be given by any one or more of the following methods:
personal service on the defendant;
service at the business address of counsel acting on behalf of the defendant;
service at the last known address or place of business of the defendant within the jurisdiction;
service upon the registered or principle office of the body corporate;
publication in the Gazette in Antigua and Barbuda; or
by effecting service upon him in a foreign jurisdiction by or through a foreign authority
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19. BASIS ON WHICH THE APPLICATIONS ARE MADE
The application under section 18B is made on the basis that the currency is:
the proceeds of some form of unlawful activity; or
an instrumentality of an offence
There is no need for there to be a conviction of any offence.
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20. The application under section 20A is made on the basis that:
a freeze order is in force; and
the defendant has engaged in a money laundering activity.
The application under section 20B is made on the basis that:
The defendant has engaged in a money laundering activity from which a benefit has derived.
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21. WHAT FACTOR/S THE COURT MAY CONSIDER IN DECIDING WHETHER OR NOT THE ORDER IS TO BE MADE (section 18B)
Under section 18B, the court may consider;
the use ordinarily made, or intended to be made of the currency; and
the claim of any third party to an interest in the currency who shows to the satisfaction of the court that he was not involved or aware of any unlawful use or purpose with which the currency may have been associated
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22. The court must also be satisfied that the seized currency is
the proceeds of some form of unlawful activity; or
An instrumentality of an offence, regardless whether the person has been convicted of any offence.
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23. WHAT FACTOR/S THE COURT MUST/MAY CONSIDER IN DECIDING WHETHER OR NOT TO MAKE THE ORDER (section 20A)
Section 20A of the MLPA allows the Court to presume that it is more “probable than not that the person…had engaged in money laundering activity.”
Thus the Court starts with the presumption that a defendant against whom a freeze order was made has engaged in money laundering activity.
The finding must be in relation to such money laundering activity a defendant engaged in not more than 6 years before the application for the civil forfeiture was made.
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24. Based on the above it is clear that the onus will be on a defendant or anyone else alleging a right of claim in the property, subjected to the freeze order, to satisfy the Court that he was not engaged in money laundering activity in the requisite period.
The finding of the Court need not be based on the commission of a particular offence and can be based on the finding that some offence or other constituting a money laundering activity has been committed.
This simply means that the court can grant the order, if it finds that a defendant committed an offence from which money was generated.
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25. WHAT FACTOR/S THE COURT MUST/MAY CONSIDER IN DECIDING WHETHER OR NOT TO MAKE THE ORDER (section 20B)
Section 20A of the MLPA allows the Court to presume that it is more “probable than not that the person…was engaged in money laundering activity from which a benefit was derived.”
Thus the Court starts with the presumption that a defendant against whom a freeze order lies has engaged in money laundering activity from which he benefited.
The finding must be in relation to such money laundering activity a defendant engaged in not more than 6 years before the application for the civil proceeds assessment was made.
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26. The Court must also consider:
The value of any interest the defendant or anyone else acting on his behalf acquired as a result of the money laundering activity.
The value of any service, benefit or advantage provided for the defendant or other person by his direction.
The value of the defendant’s property before and after the money laundering activity.
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27. The Court is not allowed to make allowances for:
the defendant’s income and expenditure, during the period of 6 years before the making of the order.
The Court is not allowed to make allowances for:
expenses incurred by the defendant in relation to the money laundering activity; or
the value of any proceeds derived as agent for someone else.
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28. PROCEDURE ON APPLICATION FOR A FORFEITURE ORDER
Sections 18B, 20A and 20B of the MLPA give any person who has been notified of the application for forfeiture to appear before that court and give evidence at the hearing of the application.
The MLPA gives the court the power to make the forfeiture order;
In the absence of the person who was given notice of the hearing and failed to appear to give evidence.
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29. WHAT MUST THE ORDER BE MADE IN RELATION TO
Under section 18B the order can be made in relation to all or part of the seized currency.
The legislation defines currency as “cash or other bearer negotiable financial instruments”.
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30. Under section 20A the order must be made in respect of “specified interest in property”.
The MLPA does not define what is meant by “specified interest in property.”
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31. It is contended that the Court may have to determine the amount it considers to be the value of the property (other than money), that is subject to the civil forfeiture order, or
Another approached that may be adopted is that the Court may have to determine the interest of the defendant subject to the interest of third parties.
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32. If the application is made in relation to section 20B of the MLPA, the order must be made in relation to the value of benefit the Court assessed the defendant derived from the money laundering activity.
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33. WHAT PROPERTY IS FORFEITED
Under section 18B, the currency that is the subject of the order.
Under section 20A The property that is specified in the civil forfeiture order.
Under section 20B property is not forfeited, but the property that is specified in the order is deemed a debt that is to be paid by the defendant to the Crown.
It is an offence if anyone deals with the property that is the subject of an order and that person may be subject to a fine not exceeding $100,000 or 2 years imprisonment or both.
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34. EFFECT OF AN ACQUITTAL OR SETTING ASIDE OF A CONVICTION
Under section 20A of the MLPA an acquittal or setting aside of a conviction does not affect the validity of a civil forfeiture order.
Provided the civil forfeiture order was made, based on the same conduct that was made before or after the conviction was quashed or set aside.
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35. The same position is applicable under section 20B where a conviction is quashed or set aside, providing the civil proceeds assessment order was made based on the same money laundering activity.
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36. IN WHOM IS THE FORFEITED PROPERTY VESTED
Under section 18A the property vests in the Government of Antigua and Barbuda.
Under sections 20A
The property vests absolutely in the Crown at the time the civil forfeiture order is made.
The Supervisory Authority has the power to take the property on behalf of the Crown.
All funds are then paid into the Forfeiture Fund, with a deduction of 20% to deposited into the Consolidated Fund.
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37. Under section 20B property is a debt owed to the Crown and is recoverable as such.
Death does not affect the civil proceeds order and where a person dies before such an order is made, the law presumes that the person died the day after the order was made.
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38. PROTECTION OF THIRD PARTIES
Under section 18B any party to an application for forfeiture can appeal to the High Court to have the matter reheard.
This application must be made within 30 days of the order being made by a Magistrate.
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39. The MLPA makes provision for third parties who claim to have an interest in the property immediately before it was forfeited, pursuant to section 20A, to apply to the High Court to have the property so forfeited excluded from the order.
The applicant must make the application within 60 days of the civil forfeiture order.
The Court has the power to grant leave to a third party outside of the 60 days, if the Court is satisfied that the delay is not due to the neglect of the third party.
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40. A person who was given notice of the
proceedings for the freeze order; and
making of the freeze order cannot make such an application unless
given leave to apply in this instance, if the Court is satisfied that the failure to apply was not due to the neglect of the applicant.
A person making such an application must give a written notice with the grounds of the application to the Supervisory Authority or any person believed to have an interest in the property, immediately before it was forfeited.
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41. WHEN CAN THE CROWN BEGIN DEALING WITH SUCH PROPERTY
The Crown can begin dealing with the property;
Within 30 days after the order for forfeiture has been made. (18B)
At the end of 60 days when the property is forfeited to the Crown, if no application is made by a person who claims to have had an interest in the property immediately before it was forfeited. (section 21)
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42. QUESTIONS? ASSETS FORFEITED! MISSION ACCOMPLISHED! 1/14/2019
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43. Section 18B there is no requirement for there to be a freeze order to have seized currency forfeited.
Section 20A (1) MLPA states, “if a freeze order is in force under Part IV, the Supervisory Authority may apply to the High Court for a civil forfeiture order forfeiting to the Crown all or any of the interests in property that are subject to the freeze order when the forfeiture order takes effect”.
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44. DEFINITIONS
Proceeds in relation to an offence, means any property that is derived or realized, directly or indirectly by any person from the commission of the offence.
Unlawful activity means-act or omission that constitutes an offence against a law in force in Antigua and Barbuda or against a law in a foreign country that would, if it was committed in Antigua and Barbuda, be an offence against a law of Antigua and Barbuda.
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45. Instrumentality means property that is used in connection with or is intended to be used in any manner in or in connection with the commission of-
A money laundering offence; or
An offence against subsection 18(1) or subsection 18(4) of this Act.
A money laundering activity.
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46. Money Laundering Activity is defined as:
anything done by the person that at the time was a money laundering offence whether or not the person has been charged with the offence and, if charged:
has been tried; or
has been tried and acquitted; or
has been convicted (even if the conviction has been quashed or set aside).
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47. Part IV: Freezing and Forfeiting of Assets in Relation to Money Laundering
An application to freeze property of a defendant is made pursuant to section 19 Part IV of the MLPA
Pursuant to section 19 of the Act the Supervisory Authority can apply ex parte to the High Court to freeze the assets of a defendant on the basis that:
he has been convicted of a money laundering offence; or
He has been, or is about to be charged with a money laundering offence; or
Is suspected of having engaged in money laundering activity.
The freeze order will affect any property which there is a reasonable suspicion that the defendant has an interest in.
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48. Money Laundering offence is defined as:
Aiding, abetting, counseling, procuring or conspiring to commit money laundering
Opening account in a false name
Failing to report
Importing or exporting a controlled drug
Producing or supplying a controlled drug
Possession of a controlled drug
Failing to report the loss or theft of a controlled drug
Cultivation of a controlled drug.
Offence against any foreign law, specified by the regulations or any foreign law whether or not it is specified by the regulation which if it was committed in Antigua and Barbuda would be an offence
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49. MONEY LAUNDERING ACTIVITY Part IV: Freezing and Forfeiting of Assets in Relation to Money Laundering Cont’d
Property in which the defendant has an interest includes
Any property that is, subject to the effective control of the defendant on the day the application is made in respect of an offence or money laundering activity
Any property that was the subject of a gift from the defendant to another
Applicable to any gift given within 6 years before the application was made
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50. Property is “subject to the effective control of the defendant whether or not the person has:
A right, power or privilege in connection with the property
A legal or equitable estate or interest in the property; or
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51. Regards may be had to the following when considering whether property is subject to the effective control or there are reasonable grounds to suspect that the property or an interest in property is subject to the effective control of a person:
Shareholdings in debentures over or directorship in a company that has an interest, whether direct or indirect, in the property;
A trust that has a relationship to the property; and
Family, domestic or business relationship between persons having an interest in property, or any of the above arrangement.
NOTE
The court can lift the corporate veil of any company in order to determine whether it is subject to the effective control of a person.
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