Third Session Ninth Parliament Republic of REPUBLIC OF ... · (Amendment) Act, 2010. 2. This Act shall have effect even though inconsistent with sections 4 and 5 of the Constitution

AN ACT to amend the Anti-Terrorism Act, 2005 toprovide for the criminalization of the financing ofterrorism and for related matters

[ Assented to 21st January, 2010]

WHEREAS it is enacted inter alia by subsection (1) ofsection 13 of the Constitution that an Act to which thissection applies may expressly declare that it shall haveeffect even though inconsistent with sections 4 and 5 ofthe Constitution and, if any such Act does so declare, itshall have effect accordingly:

Third Session Ninth Parliament Republic of Trinidad and Tobago

REPUBLIC OF TRINIDAD AND TOBAGO

Act No. 2 of 2010

[L.S.]

Preamble

And whereas it is provided by subsection 2 of the saidsection 13 of the Constitution that an Act to which thissection applies is one the Bill for which has been passedby both Houses of Parliament and at the final votethereon in each House has been supported by the votesof not less than three-fifths of all the members of thatHouse:

And whereas it is necessary and expedient that theprovisions of this Act shall have effect even thoughinconsistent with sections 4 and 5 of the Constitution:

ENACTED by the Parliament of Trinidad and Tobago asfollows:

1. This Act may be cited as the Anti-Terrorism(Amendment) Act, 2010.

2. This Act shall have effect even though inconsistentwith sections 4 and 5 of the Constitution.

3. In this Act, “the Act” means the Anti-TerrorismAct, 2005.

4. The long title of the Act is repealed and thefollowing long title is substituted:

“AN ACT to criminalize terrorism andthe financing of terrorism, to provide for thedetection, prevention, prosecution, convictionand punishment of terrorist activities and theconfiscation, forfeiture and seizure of terrorists’assets and of those involved in the financing ofterrorism and for related matters”.

5. Section 2 of the Act is amended—(a) by deleting the term “Designated

Authority”;

Interpretation No. 26 of 2005

Act inconsistent withthe Constitution

Long title repealedand substituted

Enactment

Short title

Section 2amended

2 No. 2 Anti-Terrorism (Amendment) 2010

(b) by deleting the term “financial institution”and substituting the following:

“ “financial institution” has themeaning assigned to it in section 2 ofthe Financial Insitutions Act,2008;”;

(c) by deleting the term “property” andsubstituting the following:

“ “property” or “funds” means assetsof any kind, whether tangible orintangible, moveable or immovable,however acquired and legaldocuments or instruments in anyform, including electronic or digital,evidencing title to, or interest in,such assets, including but notlimited to bank credits, travellerscheques, bank cheques, moneyorders, shares, securities, bonds,drafts, letters of credit whethersituated in Trinidad and Tobago orelsewhere, and includes a legal orequitable interest, whether full orpartial, in any such property;”;

(d) in the definition of “terrorist act”—(i) by deleting the word “or” at the

end of paragraph (a); (ii) in paragraph (b), by inserting the

word “or” after the semi-colon; and (iii) by inserting a new paragraph (c)

as follows:“(c) an offence under Part II,

Part III or section 22A ofthis Act;”;

Act No. 26 of 2008

No. 2 Anti-Terrorism (Amendment) 2010 3

(e) by inserting in the appropriate alphabeticalsequence the following definitions:

“ “Financial Action Task Force” meansthe task force established by theGroup of Seven to develop andprovide national and internationalpolicies to combat money launder-ing and terrorist financing;

“FIU” means the FinancialIntelligence Unit established undersection 3 of the FinancialIntelligence Unit of Trinidad andTobago Act, 2009;

“Group of Seven” means the meeting ofFinance Ministers of France, Italy,Germany, Japan, United Kingdom,United States and Canada formedin 1976;

“legal entity” means a body corporate,foundation, partnership, associationor other similar body that canestablish a permanent customerrelationship with a financialinstitution or otherwise ownproperty;

“listed business” has the meaningassigned to it in section 2 of theProceeds of Crime Act;

“listed entity” means an entitydeclared to be a listed entity inaccordance with section 22B;

“non-profit organization” means alegal entity or organization thatprimarily engages in raising ordisbursing funds for purposes such

Act No.11 of 2009

Chap. 11:27


as charitable, religious, cultural,educational, social or fraternalpurposes or for the carrying out ofother types of philanthropic work;

“terrorist” includes a person who—(a) commits a terrorist act by

any means directly orindirectly, unlawfully andwilfully;

(b) participates as an accom-plice in terrorist acts orthe financing of terrorism;

(c) organizes or directs othersto commit terrorist acts orthe financing of terrorism;or

(d) contributes to the commis-sion of terrorists acts orthe financing of terrorismby a group of personsacting with a commonpurpose where thecontribution—

(i) is made intentionallyand with theaim of furthering theterrorist act orthe financing ofterrorism; or

(ii) with the knowledge ofthe intention of thegroup of persons tocommit the terroristact or the financing ofterrorism;


“terrorist organization” means a legalentity or group of terrorists that—

(a) commits a terrorist act byany means, directly orindirectly, unlawfully andwilfully;

(b) participates as an accom-plice in terrorist acts orthe financing of terrorism;

(c) organizes or directs othersto commit terrorist acts orthe financing of terrorism;or

(d) contributes to the com-mission of terrorists actsor the financing ofterrorism by a group ofpersons acting with acommon purpose wherethe contribution is madeintentionally and with theaim of furthering theterrorist act or thefinancing of terrorismwith the knowledge ofthe intention of the groupto commit the terroristact or the financing ofterrorism;”;

(f) in the definition of “terrorist property”, inparagraph (c), by inserting the words or“terrorist organization” after the words“terrorist act”.

6. Section 3 of the Act is amended by repealingsubsection (1) and substituting the following subsection:

“(1) Any person who participates in thecommission of a terrorist act commits anoffence and is liable on conviction on indictmentto imprisonment for twenty-five years.”.

Section 3 amended


7. Section 18 of the Act is amended in subsections(5)(b) and (6)(b), by deleting the words “is guilty of”wherever they occur and substituting the word“commits”.

8. Section 21 of the Act is amended—(a) in subsections (1) and (2), by deleting the

words “is guilty of” wherever they occur andsubstituting the word “commits”;

(b) in subsection (3), by deleting the words“guilty of” and substituting the words “whocommits”; and

(c) in subsection (4), by deleting the words“be guilty of” and substituting the word“commit”.

9. The Act is amended by inserting after section 22the following:

“PART IIIA

FINANCING OF TERRORISM

22A. (1) Any person who by any means,directly or indirectly, wilfully provides orcollects funds, or attempts to do so, withthe intention or in the knowledge thatsuch funds are to be used in whole or inpart—

(a) in order to carry out a terrorist act; (b) by a terrorist; or(c) by a terrorist organization,

commits the offence of financing ofterrorism.

(2) An offence under subsection (1)is committed irrespective of whether—

(a) the funds are actually used tocommit or attempt to commit aterrorist act;

Offence offinancing ofterrorism

Section 18 amended

Section 21 amended

New Part IIIAinserted


(b) the funds are linked to a terroristact; and

(c) the person alleged to havecommitted the offence is in thesame country or a different countryfrom the one in which the terroristor terrorist organization is locatedor the terrorist act occurred or willoccur.

(3) A person who contravenes thissection commits an offence and is liable onconviction on indictment—

(a) in the case of an individual, toimprisonment for twenty fiveyears; or

(b) in the case of a legal entity, to afine of two million dollars.(4) A director or person in charge of

a legal entity who commits an offenceunder this section is liable on convictionon indictment to imprisonment for twenty-five years.

22B. (1) The Attorney General shallapply to a judge for an Order undersubsection (3) in respect of an entitywhere—

(a) the entity is included on a list ofentities designated as terroristentities by the United NationsSecurity Council; or

(b) there are reasonable grounds tobelieve that the entity—

(i) has knowingly committedor participated in the com-mission of a terrorist act;or

Listing ofterroristentities


(ii) is knowingly acting onbehalf of, at the directionof, or in association with,an entity referred to inparagraph (a).

(2) An application under subsection(1) shall be—

(a) ex parte; and(b) accompanied by an affidavit

deposing to the matters referred toin subsection (1).

(3) Upon an application under sub-section (1) the judge shall, by Order—

(a) declare an entity to be a listedentity for the purposes of thisAct if the judge is satisfied asto the matters referred to insubsection (1); and

(b) freeze the funds of the listed entity.

(4) An Order made under subsec-tion (3) may make such provision as theCourt thinks fit for living expenses andlegal expenses of the individual or legalentity as the case may be.

(5) Where an Order is made undersubsections (3), (7)(d) or (10), the AttorneyGeneral may, within seven days afterthe date of the Order, cause to bepublished in the Gazette and in two dailynewspapers of general circulation inTrinidad and Tobago—

(a) a copy of the Order; and(b) in the case of an Order under

subsection (3), a statement thatthe matter will be reviewed everysix months.


(6) Within sixty days after the dateof publication of an Order undersubsection (5), the entity in respect ofwhich the Order is made may apply toa judge for a review of the Order andshall notify the Attorney General of theapplication.

(7) Upon an application madeunder subsection (6), the judge shall—

(a) hear any evidence or other infor-mation that may be presented bythe Attorney General and may, atthe request of the AttorneyGeneral, hear all or part of thatevidence or information in theabsence of the applicant or anycounsel representing the applicant,if the judge is of the opinion thatthe disclosure of the informationwould be prejudicial to nationalsecurity or endanger the safety ofany person;

(b) provide the applicant with a state-ment summarizing the informationavailable to the judge, so as toenable the applicant to be reason-ably informed of the reasons for themaking of the Order, withoutdisclosing any information thedisclosure of which would, in theopinion of the judge, be prejudicialto national security or endangerthe safety of any person;

(c) provide the applicant with areasonable opportunity to beheard; and


(d) determine whether or not theOrder should be revoked on thebasis of the information availableto the judge and, if he determinesthat the Order should be revoked,make an Order for such revocation.

(8) For the purposes of any applica-tion or review under this section, the judgemay receive in evidence anything that, inthe opinion of the judge, is reliable andrelevant.

(9) The Attorney General shall,every six months—

(a) review all Orders made undersubsection (3) so as to determinewhether the circumstancesreferred to in subsection (1)continue to exist in respect of thelisted entity; and

(b) if he determines that such circum-stances no longer exist, apply to ajudge for the revocation of theOrder in respect of the listedentity.

(10) Upon an application undersubsection (9), the judge shall, if satisfiedas to the matters referred to in thatsubsection, make an Order for therevocation, which Order shall be publishedin the Gazette and in two daily newspapersof general circulation in Trinidad andTobago.


22C. (1) Where a financial institution orlisted business knows or has reasonablegrounds to suspect that funds within thefinancial institution or listed businessbelong to an individual or legal entitywho—

(a) commits terrorist acts or partici-pates in or facilitates the commis-sion of terrorist acts or thefinancing of terrorism; or

(b) is a person or entity designated asa terrorist entity by the UnitedNations Security Council,

the financial institution or listed businessshall report the existence of such funds tothe FIU.

(2) Every financial institution orlisted business shall—

(a) pay special attention to and reportall—

(i) business transactionsbetween individuals, cor-porate persons andfinancial institutions inor from other countrieswhich do not complywith, or who complyinsufficiently with therecommendations of theFinancial Action TaskForce; and

(ii) complex, unusual, or largetransactions, whethercompleted or not, unusual

Reportingrequirements


patterns of transactionsand significant butperiodic transactionswhich have no apparenteconomic or visible lawfulpurpose,

to the FIU;(b) examine the background and

purpose of all transactions whichhave no economic or visible legalpurpose under paragraph (a)(i) andmake available to the FIU, writtenfindings after its examinations,where necessary.

(3) Where a financial institution orlisted business knows or has reasonablegrounds to suspect that funds are linked orrelated to, or to be used for terrorism,terrorist acts or by terrorist organizationsor those who finance terrorism, thefinancial institution or listed businessshall make a suspicious transaction, or asuspicious activity report to the FIU in theforms as set out in the Third Schedule tothe Proceeds of Crime Act.

(4) Subject to section 22D, where afinancial institution or listed businessmakes a suspicious transaction orsuspicious activity report to the FIU underthis section, the Director or staff of the FIUor of such financial institution or listedbusiness shall not disclose the fact orcontent of such report to any person.


(5) Any person who contravenessubsection (4) commits an offence and isliable on summary conviction to a fine oftwo hundred and fifty thousand dollarsand to imprisonment for three years.

(6) A report to which subsection (3)refers shall be made within fourteen daysof the date on which the financial institu-tion or listed business knew or hadreasonable grounds to suspect that thefunds were linked or related to, or were tobe used for terrorism, terrorist acts or byterrorist organizations or those whofinance terrorism.

(7) When the report referred to inthis section is made in good faith, thefinancial institution or listed business andtheir employees, staff, directors, owners orother representatives as authorized bylaw, are exempt from criminal, civil oradministrative liability, as the case maybe, for complying with this section or forbreach of any restriction on disclosure ofinformation imposed by contract or by anylegislative, regulatory or administrativeprovision, regardless of the result of thecommunication.

22D. (1) Where the FIU receives infor-mation from a financial institution orlisted business and it considers that aninvestigation may disclose that funds inthe possession of any individual or legalentity are being used, have been usedor are intended for use in the financing ofterrorism, it shall forward such informa-tion to the Commissioner of Police forfurther investigation.

Identificationof offence offinancing ofterrorism


22E. (1) The FIU may instruct afinancial institution or listed business inwriting, to suspend the processing of atransaction for a period not exceedingthree working days, pending the comple-tion of an evaluation and analysis of asuspicious transaction or suspiciousactivity report.

(2) Where those instructions aregiven, a financial institution, listedbusiness or any other aggrieved person,may apply to a judge to discharge theinstructions of the FIU and shallserve notice on the FIU, to join in theproceedings, save however, that theinstructions shall remain in force until thejudge determines otherwise.

(3) After the FIU has concluded itsevaluation and analysis of a suspicioustransaction or suspicious activity report,and where the Director of the FIU is of theview that the circumstances warrantinvestigation, a report shall be submittedto the Commissioner of Police for investi-gation to determine whether an offence offinancing of terrorism has been committedand whether the funds are located inTrinidad and Tobago or elsewhere.

10. Section 23 of the Act is amended—(a) in subsection (1)—

(i) by inserting after the words “policeofficer” the words “above the rankof sergeant”; and

FIU maysuspendcertaintransactions

Section 23 amended


(ii) by deleting the words “inChambers”; and

(b) in subsection (2), by inserting after thewords “police officer” the words “above therank of sergeant”.

11. Section 24 of the Act is amended—

(a) in subsection (1)—(i) by inserting after the words

“Inspector or above” the words “oran officer of a law enforcementauthority”; and

(ii) by deleting the words “inchambers”;

(b) in subsection (2), by inserting after thewords “police officer” the words “above therank of sergeant”;

(c) in subsection (3)—(i) by deleting the word “order” and

substituting the word “Order”;and

(ii) in paragraphs (a)(ii) and (b)(iii), byinserting after the words “policeofficer” the words “above the rankof sergeant”;

(d) in subsections (6), (7) and (11), by deletingthe word “order” wherever they occur andsubstituting the word “Order”; and

(e) in subsection (12), by deleting all thewords occurring after the words “policeofficer” and substituting the words “abovethe rank of sergeant”.

Section 24 amended


12. The Act is amended by inserting the followingsections after section 24:

24A. (1) A police officer above the rankof sergeant may, for the purposes of aninvestigation into the offence of financingof terrorism apply to a judge for a warrantunder this section.

(2) On such application the judgemay issue a warrant authorizing a policeofficer above the rank of sergeant to enterand search the premises if the judge issatisfied in relation to the offence offinancing of terrorism—

(a) that there are reasonable groundsfor suspecting that an individualor legal entity is linked to thecommission of that offence;

(b) that there are reasonable groundsfor suspecting that there are onthe premises material relating tothe commission of that offence;and

(c) that it would be appropriate tomake an Order in relation to thematerial because—

(i) it is not practicable tocommunicate with anyperson entitled to producethe material;

(ii) it is not practicable tocommunicate with anyperson entitled to grantaccess to the material orentitled to grant entry tothe premises on whichthe material is situated;or

New sections 24A,24B and 24C inserted

“Authority forsearch


(iii) the investigation for thepurposes of which theapplication is made mightbe seriously prejudicedunless a police officerabove the rank ofsergeant could secureimmediate access to thematerial.

(3) Where a police officer above therank of sergeant has entered the premisesin the execution of a warrant issued underthis section, he may seize and retain anymaterial, other than items subject tolegal privilege, which is likely to be of sub-stantial value, whether by itself ortogether with other material, to theinvestigation for the purposes of which thewarrant was issued.

(4) The person to whom a searchwarrant is issued shall furnish a reportin writing, within ten days after theexecution of the warrant or the expiry ofthe warrant, whichever occurs first, to thejudge who issued the warrant—

(a) stating whether or not the warrantwas executed;

(b) if the warrant was executed,setting out a detailed descriptionof anything seized; or

(c) if the warrant was not executed,setting out briefly the reasons whythe warrant was not executed.

24B. (1) A judge may on applicationmade by a police officer above the rank ofsergeant and if the conditions set out insubsection (2) are met, make an Order that


a financial institution or listed businessprovide to an authorized officer any suchcustomer information relating to the per-son or account specified in the application.

(2) An application under sub-section (1) shall state—

(a) that there is an investigation offinancing of terrorism or otheroffence under this Act and theOrder is sought for purposes of acriminal investigation of thatoffence; and

(b) the judge is satisfied that thereare reasonable grounds forbelieving that the financialinstitution or listed business mayhave information that is relevantin the investigation.

(3) Customer information isinformation as to whether a person holds,or has held an account or accounts at thefinancial institution or listed business(whether solely or jointly), and informationidentifying a person who holds an account,and includes all information as to—

(a) the account number or numbers;(b) the person’s full name;(c) his date of birth;(d) his most recent address and any

previous addresses;(e) the date or dates on which he

began to hold the account oraccounts and, if he has ceased tohold the account or any of theaccounts, the date or dates onwhich he did so;

CustomerInformationOrder


(f) such evidence of his identity aswas obtained by the financialinstitution;

(g) the full name, date of birth andmost recent address, and anyprevious addresses, of any personwho holds, or has held, an accountat the financial institution jointlywith him;

(h) the account number or numbers ofany other account or accounts heldat the financial institution towhich he is a signatory and detailsof the person holding the otheraccount or accounts; and

(i) any other information which thecourt specifies in the customerinformation Order.

(5) Where the customer is a legalentity, the information shall include—

(a) a description of any businesswhich it carries on;

(b) the country or territory in whichit is incorporated or otherwiseestablished and any numberallocated to it;

(c) its registered office, and anyprevious registered offices;

(d) the full name, date of birth andmost recent address and anyprevious addresses of any personwho is a signatory to the accountor any of the accounts; and

(e) any other information which thecourt specifies in the customerinformation Order.


(6) A financial institution or listedbusiness shall provide the information tothe authorized officer in such manner, andat or by such time, as is specified in theOrder.

(7) An authorized officer forpurposes of this section is the FIU.

(8) No obligation to maintain theconfidentiality of information held by afinancial institution or listed business,whether imposed by a law or contract, canexcuse compliance with an Order madeunder this section.

(9) Where a financial institution orlisted business subject to an Order underthis section, knowingly—

(a) fails to comply with the Order; or(b) provides false or misleading infor-

mation in purported compliancewith the Order,

the financial institution or listed businesscommits an offence and is liable onconviction on indictment to a fine of onemillion dollars.

(10) A financial institution orlisted business that has been served withan Order under this section shall notdisclose the existence or operation of theOrder to any person except—

(a) an officer or agent of the institu-tion for the purpose of complyingwith the Order; or

(b) an authorized officer referred to inthe Order.


(11) Where a financial institutionor listed business contravenes sub-section (10), it commits an offence and isliable on conviction on indictment to a fineof five hundred thousand dollars.

24C. (1) A police officer above the rank ofsergeant may apply, ex parte to a judgefor a monitoring Order directing afinancial institution, listed business ornon-profit organization to provide certaininformation.

(2) An application under sub-section (1) shall be supported by anaffidavit deposing to matters referred to insubsection (4).

(3) A monitoring Order shall—

(a) direct a financial institution,listed business or non-profitorganization to disclose informa-tion it obtained relating to trans-actions conducted through anaccount held by a particularperson with the financial institu-tion, listed business or non-profitorganization;

(b) not have retrospective effect; and (c) only apply for a period not

exceeding three months from thedate it is made.

(4) A judge shall issue a monitoringOrder only if he is satisfied that there arereasonable grounds for believing that—

(a) the person in respect of whoseaccount the Order is sought—

(i) has committed or wasinvolved in the commis-sion, or is about to

MonitoringOrder


commit or be involved inthe commission of, anoffence; and

(ii) has benefited directly orindirectly, or is about tobenefit directly or indi-rectly, from the commis-sion of an offence; or

(b) the account is relevant toidentifying, locating or quantifyingterrorist property.

(5) A monitoring Order shallspecify—

(a) the name or names in which theaccount is believed to be held; and

(b) the class of information thatthe financial institution, listedbusiness or non-profit organiza-tion is required to give.

(6) Where a financial institution,listed business or non-profit organizationsubject to an Order under this section,knowingly—

(a) fails to comply with the Order; or(b) provides false or misleading

in format ion in purpor tedcompliance with the Order,

the financial institution, listed business ornon-profit organization commits an offenceand is liable on conviction on indictment toa fine of one million dollars.

(7) A financial institution, listedbusiness or non-profit organization that isor has been subject to a monitoring Order


shall not knowingly disclose the existenceor operation of the Order to any personexcept—

(a) an officer or agent of the financialinstitution, listed business or non-profit organization, for thepurpose of ensuring compliancewith the Order;

(b) a legal adviser for the purpose ofobtaining legal advice or represen-tation in respect of the Order; or

(c) the authorized officer referred toin the Order.

(8) Where a financial institution,listed business or non-profit organizationcontravenes subsection (7), it commitsan offence and liable on conviction onindictment to a fine of five hundredthousand dollars.

(9) Nothing in this section preventsthe disclosure of information concerning amonitoring Order for the purposes of or inconnection with legal proceedings or in thecourse of proceedings before a court.

(10) Nothing in this section shall beconstrued as requiring a legal adviser todisclose to any court the existence oroperation of a monitoring Order.

13. The Act is amended in section 32—(a) by repealing subsection (1) and substituting

the following subsection:“(1) Every person or regulatory

authority who has any informationwhich will assist in—

(a) preventing the commission byanother person, of a terroristact; or


Section 32 amended

(b) securing the arrest or prosecu-tion of another person for anoffence under this Act, or anoffence under any other lawand which also constitutes aterrorist act,

shall forthwith disclose the information toa police officer above the rank of sergeantor the Central Authority as defined underthe Mutual Assistance in Criminal MattersAct.”; and

(b) by inserting after subsection (4) thefollowing subsection:

“(5) For the purposes of this section,“regulatory authority” means theCentral Bank, the Securities ExchangeCommission, the Financial IntelligenceUnit, the Trinidad and Tobago StockExchange, the Inspector of FinancialInstitutions and the Commissioner ofCo-Operatives”.

14. The Act is amended in section 33, by deletingthe words “designated authority” and “DesignatedAuthority” wherever they occur and substituting theword “FIU”.

15. Section 34 of the Act is amended—(a) by repealing subsection (1) and substituting

the following subsection:“(1) Where a customs officer, immi-

gration officer, or police officer abovethe rank of sergeant reasonablybelieves that property in thepossession of a person is—

(a) property intended to be usedfor the purpose of a terroristact or for financing terrorism;

Section 33 amended


Section 34 amended

Chap. 11:24

(b) terrorist property; or (c) property of a person or

entities designated by theUnited Nations SecurityCouncil,

he may apply to a judge for a restraintOrder in respect of that property.”;

(b) by inserting after subsection (1) thefollowing subsection:

“(1A) Where information isforwarded to the Commissioner ofPolice pursuant to section 22D, and hehas reasonable grounds to believe thatfunds should be restrained, theCimmissioner of Police may apply tothe Court for an Order to restrain suchfunds.”;

(c) in subsection (3)—(i) by deleting the words “subsection

(1)” and substituting the words“subsections (1) and (1A)”; and

(ii) by deleting the words “Judge of theHigh Court” and substituting theword “judge”;

(d) by inserting after subsection (3) thefollowing subsection:

“(3A) A restraint Order made undersubsections (1) and (1A) may make suchprovision as the Court thinks fit for livingexpenses and legal expenses of an individ-ual or legal entity, as the case may be.”;

(e) in subsection (4)—(i) by deleting the words “Judge of the

High Court” and substituting theword “judge”; and


(ii) in paragraph (b), by inserting theword “no” before the word“proceedings”; and

(f) in subsection (5), by deleting the words“subsection (1)” and substituting the words“subsections (1) and (1A)”.

16. The Act is amended in section 35, by deleting theword “order” wherever it occurs in subsections (2) and(3) and substituting the word “Order”.

17. The Act is amended in section 36—(a) in subsection (1)—

(i) by deleting the words “applicationmade” and substituting the words“application is made”;

(ii) by deleting the words “judge inchambers” and substituting theword “judge”; and

(iii) by deleting the word “order”wherever it occurs and substi-tuting the word “Order”;

(b) in subsections (4), (5), (7) and (8), bydeleting the word “order” and substitutingthe word “Order”; and

(c) in subsections (4) and (8), by deleting thewords “Judge of the High Court” andsubstituting the word “judge”.

18. The Act is amended in section 37—(a) in subsection (1) by—

(i) deleting the words “of the HighCourt”; and

Section 37 amended

Section 36 amended

Section 35 amended


(ii) deleting the word “order” and sub-stituting the word “Order”;

(b) in subsections (5), (8) and (9), bydeleting the word “order” wherever it occursand substituting the word “Order”; and

(c) in subsection (7), by deleting the word“order” in the second place where it occursand substituting the word “Order”.

19. The Act is amended by inserting after section 38the following section:

38A. (1) Any customs officer, policeofficer above the rank of sergeant mayseize and detain part of or the wholeamount of any cash where there are rea-sonable grounds for suspecting that itis—

(a) intended for use in the commissionof an offence under this Act; or

(b) is terrorist property.

(2) Cash detained undersubsection (1) shall not be detainedfor more than ninety-six hours afterseizure, unless a judge orders its continueddetention for a period not exceeding threemonths from the date of the initial seizureand the detained cash shall be paid intoCourt.

(3) A judge may order a detentionunder subsection (1) upon being satisfiedthat the continued detention of the cash isjustified while—

(a) its origin or derivation is furtherinvestigated; or

Section 38A inserted

“Seizure anddetention ofcash


(b) consideration is given to theinstitution in Trinidad andTobago or elsewhere of criminalproceedings against any person foran offence with which the seizeditem is connected.

(4) A judge may subsequently ordercontinued detention of the cash if satisfiedof the matters set forth in subsections (2)and (3), but the total period of detentionshall not exceed two years from the date ofthe Order made under those subsections.

(5) Subject to subsection (6), cashdetained under this section may bereleased in whole or in part to the personon whose behalf it was transported byOrder of a judge, that its continued deten-tion is no longer justified upon applicationby or on behalf of that person and afterconsidering any views of a police officerabove the rank of sergeant.

(6) Cash detained under thissection shall not be released where anapplication for restraint or forfeiture of thecash is pending under this Act or ifproceedings have been instituted inTrinidad and Tobago or elsewhere againstany person for an offence with which thecash is connected, unless and until theproceedings on the application or theproceedings related to an offence have beenconcluded.


(7) Where the application relates tocash that is commingled with other cash,the commingled cash is subject tocontinued detention under thissubsection.

(8) Upon an application by a policeofficer above the rank of sergeant, a judgeshall order forfeiture of any cash which hasbeen seized and detained under thissection if satisfied on the balance ofprobabilities that the cash directly orindirectly represents—

(a) terrorist property; or(b) proceeds of an offence or intended

for use in the commission of anoffence.

(9) Before making an Order offorfeiture under subsection (8), the courtshall order that notice be provided to anyperson who has asserted an interest in thecash and provide an opportunity for thatperson to be heard.

(10) In this section—(a) “cash” includes coins, notes

and other bearer negotiableinstruments in any currency;

(b) “bearer negotiable instrument”includes monetary instruments inbearer form such as travellerscheques, negotiable instrumentsincluding cheques, promissorynotes and money orders that areeither in bearer form, endorsedwithout restriction made out to afictitious payee, or otherwise in


such form that title theretopasses upon delivery; incompleteinstruments including cheques,promissory notes and moneyorders signed, but with the payee’sname omitted.”.

20. The Schedule is amended in paragraph 1(h), byinserting after the words “police officer” the words“above the rank of sergeant”.

Passed in the Senate this 19th day of January, 2010.

Clerk of the Senate

IT IS HEREBY CERTIFIED that this Act is one the Billfor which has been passed by the Senate and at thefinal vote thereon in the Senate has been supportedby the votes of not less than three-fifths of all themembers of the Senate, that is to say by the votesof 24 Senators.

Clerk of the Senate

Schedule amended


Passed in the House of Representatives this 20th dayof January, 2010.

Clerk of the House

IT IS HEREBY CERTIFIED that this Act is one the Bill forwhich has been passed by the House of Representativesand at the final vote thereon in the House has beensupported by the votes of not less than three-fifths of allthe members of the House, that is to say by the votesof 26 members of the House.

Clerk of the House


Documents

Third Session Ninth Parliament Republic of REPUBLIC OF ... · (Amendment) Act, 2010. 2. This Act shall have effect even though inconsistent with sections 4 and 5 of the Constitution