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

PART I INTRODUCTORY

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 II TERRORIST 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 III ACCOUNT MONITORING ORDERS

Account monitoring orders

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

PART IV TERRORIST 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 V GENERAL

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.

A.K. Galloway

Clerk of the Privy Council