The Financial Investigations Division Act, 2008"

REPORT OF THE JOINT SELECT COMMITTEE ON ITS DELIBERATIONS ON THE BILL ENTITLED: "THE FINANCIAL INVESTIGATIONS DIVISION ACT, 2008"

Members of the Honourable House are reminded that, on June 9, 2009 the Minister of Education and Leader of Government Business in the House of Representatives having obtained suspension ofthe Standing Order moved the following motion.

BE IT RESOLVED that, notwithstanding Standing Order 68 (3), this Honourable House of Representatives appoint a Special Select Committee comprising the following Members: Honourable Audley Shaw, Chairman Honourable Karl Samuda Dr. the Honourable Christopher Tufton Mrs. Marisa Dalrymple-Philibert Mr. Clive Mullings Dr. Omar Davies Mr. Peter Bunting Dr. Peter Phillips

To sit jointly with a similar Committee to be appointed by the Senate to consider and report on the Bill shortly entitled: "The Financial Investigations Act, 2008."

On June 19,2009, the Senate on a motion moved by the Attorney General, Minister of Justice and Leader of Government Business having obtained the suspension of the Standing Orders moved the following motion:

BE IT RESOLVED that notwithstanding Standing Order 66 (3), this Honourable Senate appoint a Special Select Committee comprising ofthe following Members: Senator the Honourable Donald Wehby Senator the Honourable Arthur Williams Senator Arnold J. Nicholson Senator Mark Golding to sit jointly with a similar committee appointed by the House of Representatives to consider and report on the Bill shortly entitled "The Financial Investigations Division Act, 2008."

On October 11, 2009, the Honourable Senate on a motion moved by the Attorney General, Minister ofJustice and Leader of Government Business having obtained the suspension ofthe Standing Orders moved a further resolution to delete the name "Donald Webhy" and substitute the name "Dwight Nelson" therefor.

Your Committee commenced its deliberations on the Bill on July 22, 2009 and held a total of seven (7) meetings, the last ofwhich took place on March 3,2010. (Appendix 1)

Your Committee recognizing the importance of the Bill and the need for public consultation and participation wrote to various groups that it believed would have an interest in the subject matter. A special appeal was made to the media houses to publicize the Committee's invitation to members of the public and institutions to make submissions to the Committee. As a result, an article was published in both The Gleaner and the Jamaica Observer on July 24, 2009, inviting the public to make submissions to the Committee on the Bill. Three (3) groups made written presentations and subsequently made oral presentations to your Committee. These included the following:

The Jamaica Bankers' Association -The Norman Manley Law School The Jamaican Bar Association

Your Committee received technical assistance in its deliberations of the Bill from representatives from the Office of the Parliamentary Counsel, the Attorney General's Chambers, the Legal Reform Department, the Financial Investigations Division, the Financial Services Commission, the Office of the Director of Public Prosecutions, the Bank of Jamaica and the Ministry of Finance and the Public Service.

2 1. OVERVIEW OF THE BILL The issue of financial crime is one that every country must address in a deliberate and effective manner. The expansion of business across borders, emerging technologies, and complex financial products and arrangements create opportunities for criminals to unlawfully appropriate and divert funds, launder money and otherwise disguise the proceeds of crime.

Financial crimes result in the loss of millions of dollars to the Jamaican economy and cause serious damage to the efficiency and reputation of the financial institutions and financial markets. These crimes are often very complex in nature and, may involve a wide range of illegal activities requiring responsive measures utilizing highly, trained investigators, attorneys-at-law, forensic accountants and analysis and asset managers.

In recognition ofthe need to address the multi-dimensional problem comprehensively, the Bill seeks to establish a department of Government to be known as the Financial Investigations Division with responsibility for (a) the investigation of financial crimes, namely offences involving money or other benefits, including offences involving fraud, dishonesty, money laundering or the financing ofterrorist activities; (b) maintaining intelligence databases on, inter alia, the types of financial crimes and the methodologies used in committing these crimes; and (c) the compilation and publication of statistics on matters such as investigations, prosecutions, convictions and assets relating to financial crimes, for dissemination to other law enforcement agencies, regulators and policymakers. The Bill further provides for (a) the appointment ofofficers ofthe Division; (a) obligations for secrecy; and (b) the sharing of information with other law enforcement and financial regulatory agencies both within Jamaica and outside of Jamaica, within well defined parameters. The Bill also provides the Division with several key investigatory powers, including those of making application to the Court for inter alia search warrant and monitoring orders.

3 2. FINDINGS AND RECOMMENDATIONS PART 1 Preliminary

2.1 Clause 1 Clause 1 cites the short title and the construction ofthe Bill. Except for the change in the date of the Act from 2008 to 2010 and the correction to the spelling of the word "Gazette" to read "Gazette", your Committee has decided that no other change was necessary. 2.2 Clause 2 Clause 2 speaks to the interpretation ofthe definitions that are ofparticular interest in the Bill. Your Committee deliberated extensively on the definition of the "authorized officer" who is a creature of the statute and would be conferred certain powers of enforcement. Your Committee decided that in the definition of "authorized officer" all the words appearing after (c) in the definition should be deleted and therefore the comma would be replaced by a full-stop after the words "Commissioner of Police".

In discussing the definition of "competent authority", concerns were raised about the fact that there might be overlapping powers or jurisdictions given to the Minister of National Security who has portfolio responsibility ofthe Proceeds of Crime Act and the Minister of Finance and the Public Service who has the portfolio responsibility of the Financial Investigations Division. The matter of who really had the power and who acted ultra vires if one Minister did something that should have been the duty of the other Minister was also discussed. It was decided that the concerns could be addressed administratively and would necessitate collaboration,' consultation and cooperation between the Ministry of Finance and the Public Service and the Ministry of National Security.

Your Committee also expressed concerns about whether or not there should be a listing of every entity that could be designated a "competent authority". It was decided that the Minister would have the power to designate a "competent authority" and therefore there was no need to do a listing.

In the definition of "Chief Technical Director", the numeral "7" was deleted and substituted with the numeral "8". Your Committee accepts the change.

4 In the definition of "Division", your Committee accepts that it is necessary to delete the numeral "3" and substitute therefor the numeral "4".

In the definition of "public body", your Committee decided that the word "person" in paragraph (c), should be deleted and replaced with the word "entity". This decision was taken to make it clear that the definition was not to include natural persons.

It was felt that it would be useful to have an "objects"clause in the Bill which would set the framework for the legislation by defining the objects of the legislation. Your Committee accepts the decision to insert a new clause which would be numbered as 3. Clause 3 would have as its marginal note, "Object of Act" and would state as follows: "The object of the Act is to establish a department of Government with sufficient independence and authority to effectively deal with the multi-dimensional and complex problem of financial crime and confer upon it the responsibility to (a) investigate all categories offinancial crimes; (b) collect information and maintain intelligence databases on financial crimes; (c) maintain an arm's length relationship with law enforcement agencies and other authorities of Jamaica and of foreign States, and with regional and international associations or organizations, with which it is required to share information; and (d) exercise its functions with due regard for the rights of citizens.".

PART II Financial Investigations Division 2.3 Clause 3 This clause establishes the Financial Investigations Division as a department of Government. (This clause will be renumbered as clause 4) . Your Committee accepts this clause. 2.4 Clause 4 This clause lists the functions of the Division. (This clause will be renumbered as clause 5) Your Committee accepts that it is necessary to delete from paragraph (c) the numeral "9" and substitute therefor the numeral "10".

5 Your Committee also accepts that clause 4 (1) (d) should be deleted and substituted therefor with the following: "(d) where the Chief Technical Director considers it necessary, to disseminate information and reports referred to in paragraph (b) to (i) the competent authority; (ii) the Attorney General, the Commissioner of Police, any of the Revenue Commissioners under the Revenue Administration Act, the Commission for the Prevention of Corruption established under the Corruption (Prevention) Act or the Director of Public Prosecutions; (iii) any other body designated by the Minister for the purposes of this paragraph;" The new clause 4(1)(d) expands the list of entities that may receive infonnation from the Chief Technical Director, where he or she considers it necessary, to include the Commission for the Prevention of Corruption and any other body designated by the Minister.

Your Committee accepts that it is necessary to delete from paragraph (j) the words "restrained or forfeited under this Act or any other enactment" and substitute therefor the words "restrained under this Act or seized, restrained or forfeited under any other enactment". This reflects the fact that the power offorfeiture is not provided for in the Bill.

Your Committee accepts that subsection (3) should be deleted from clause 4. The rationale for removing the provision was that it was too wide and it would give the Chief Technical Director and officers of the Division powers, authority and privileges as were given by law to members of the Jamaica Constabulary Force, which would include powers of granting bail. It was further noted that the powers that officers of the FID needed, that is, powers of search and seizure, were already captured elsewhere in the in the Bill. 2.5 Clause 5 The Financial Services Commission raised some concerns regarding clause 5. After discussion, your Committee agreed that it was necessary for the law to mandate cooperation amongst "investigative authorities". Having regard however to the concerns raised by the Financial Services Commission your Committee agreed that clause 5 of the Bill should be

6 deleted and substituted with a new clause that would have three (3) subsections. (This clause will be renumbered as clause 6.) The marginal note would state "Functions of, co operation of other authorities" and the new clause would state: "1. Subject to subsection (2), the conferral of powers of investigation upon the Division by this Act shall not be construed as affecting the exercise of any functions relating to the investigation or prosecution of offences conferred upon any other authority (hereinafter called an investigatory authority), whether such functions are similar to these powers or not. 2. Every investigative authority shall cooperate with the Division in the exercise of the functions conferred on the Division. 3. The Division shall cooperate with an investigative authority in the exercise of any functions conferred on the authority under this Act or any other enactment." 2.6 Clause 6 This clause deals with policy direction. (This clause will be renumbered as clause 7.) Your Committee accepts this clause. 2.7 Clause 7 This clause deals with the appointment ofthe Chief Technical Director and staff. (This clause will be renumbered as clause 8.) Due to concerns that were raised by the Norman Manley Law School in the discussions your Committee accepts that the words "the Governor General may appoint" should be deleted and substituted therefor the words "there shall be appointed". Your Committee noted that there was no need to refer to the Governor General's power to appoint as the officers would be civil servants and would therefore fall under the Civil Service Establishment Act that governs the appointment of civil servants and the other laws governing matters such as appointment of civil servants would be applicable. 2.8 Clause 8 This clause deals with the delegation of functions. (This clause will be renumbered as clause 9.) In the deliberations of your Committee on clause 8, concerns were expressed both by the Norman Manley Law School and one member of the Committee that the clause should make it clear that any person to whom the powers were delegated shall be subject to the same requirements as the Chief Technical Director as the clause was dealing with statutory duties, statutory obligations and statutory powers. Subsequent research undertaken, indicated that in

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the case of a delegation of statutory duties if the statute does not clearly impose the liabilities that may arise from failure to properly exercise those duties, those liabilities are not transferred to the delegate. Applying the research to the Bill, breach ofany statutory duty by a delegate, would still vest liability in the Government of Jamaica. Your Committee grappled with the issue of whether in the case of a delegation, the ultimate responsibility should vest with the Government as was currently the case or whether the obligation should be vested in the person to whom the authority is delegated. Your Committee took the decision that the provisions needed to be revised. Your Committee recommends that the clause should be deleted and substituted with the following: "(1) The Chief Technical Director may delegate, in writing, the exercise of any function conferred [or imposed] upon him by or under this Act to any person or persons (hereinafter called "the delegate") as he thinks fit. (2) A delegation under subsection (1) shall not affect the exercise of such function by or the responsibility of the Chief Technical Director in relation to acts of the delegate carried out in unlawful exercise of the delegated function. (3) Any act done by or in relation to the delegate pursuant to the delegated function shall have the same effect as if done by [or in relation to] the Chief Technical Director. (4) It is declared, in the interest of certainty, that a delegation under subsection (1) shall, in addition to conferring authority to exercise the delegated function, also subject the delegate to the same obligations as would apply under this Act to the Chief Technical Director's exercise of such function, and accordingly, the delegate shall be liable for any wrongful act done or omission of the delegate occurring in the exercise of that authority.". 2.9 Clause 9 This clause deals with the obligation of secrecy. (This clause will be renumbered as clause 10.) Your Committee recommends that the word "powers" should be deleted from subsection (4) (a) and substituted therefor the word "functions. "Functions" would take into account powers and duties. The Jamaica Bankers' Association had suggested that "and duties" should be added after the word "powers" but having regard to the definition of "functions" in clause 2 of he Bill, your Committee agrees that using the term "functions" would address the concern.

In addition, your Committee accepts that it is necessary to delete from subsection (4) (c) the numeral "11" and substitute therefor the numeral "12" 2.10 Clause 10 This clause deals with reports. (This clause will be renumbered clause 11) Your Committee accepts this clause. 2.11 Clause 11 This clause deals with agreements and arrangements. (This clause will be renumbered as clause 12.) It was pointed out that clause 11 (7) should mirror the safeguards that are contained in clause 11(4). It was felt that for the "belt and braces approach" it should be clear that the Minister in setting up an agreement under clause 11 (7) cannot override the safeguards in clause 11(4).

Your Committee accepts that subsection (8) should be renumbered as subsection (9) and the following should be inserted as subsection (8) "(8) For the purpose of an agreement or arrangement under subsection (7), the Minister shall be satisfied (in relation to the entity that is party to such agreement or arrangement) as to the like matters as those which the Chief Technical Director is required to be satisfied of in relation to an agreement or arrangement with a foreign financial intelligence department under subsection (4).". 2.12 Clause 12 Clause 12 is the saving clause for the Mutual Assistance (Criminal Matters) Act. Your Committee accepts the clause. (This clause will be renumbered as clause 13.) 2.13 Clause 13 This clause deals with the protection of persons exercising functions under the Act. (This clause will be renumbered as clause 14.) The matters of legal professional privilege and the obligation of legal counsel to preserve the confidentiality of information obtained from clients were of great concern to members. It was therefore felt that clause 13(1) should also refer to legal professional privilege so that if there were disclosure of information that should fall within the ambit of legal professional privilege in would not be excluded in the protection

9 granted under clause 13(1). Your Committee after extensive deliberations on the issue decided that in subsection (1), the words "including confidentiality arising from legal professional privilege" should be inserted next after the word "confidentiality".

Clause 13 (2) deals specifically with the exclusion of liability and gives immunity to the Chief Technical Director and the officers of the Financial Investigations Division, any financial institution or designated non-financial institution, or any designated employees of those institutions. Concerns were expressed that the officers of the Financial Investigations Division were being given a blanket statutory immunity from any action, suit or other proceedings. It was felt that the officers in exercising their powers must exercise the due diligence and the immunity should not be based solely on the fact that the act was done in good faith. Your Committee agrees that the following amendments were necessary to subsection (2) to remedy the concerns that were expressed. delete the word "action"; insert in paragraph (a), immediately after the word "Division" the words "or any person to whom a function is delegated under section 9"; insert immediately after the words "in respect of any", the word "lawful"

PART III Enforcement 2.14 Clause 14 This clause deals with the interpretation for Part III. (This clause will be renumbered as clause 15.) Some members of the Committee were concerned with the fact that the term "legal professional privilege" was defined in clause 14 and also with the substance of the definition. Your Committee felt that it would not be ideal to have to keep amending the Act to ensure that the definition of "legal professional privilege" was consistent with the common law position. Your Committee decided that "legal professional privilege" should not be defined in the BilL Your Committee therefore accepts that it is necessary to delete the provision in the clause and substitute therefor the following: "In this Part, "excluded material" means (a) medical records;

10 (b) human tissue or fluid which has been taken for the purposes of diagnosis or medical treatment and which a person holds in confidence.". 2.15 Clause 15 Clause 15 deals with the production and inspection of orders. (Fhis clause will be renumbered clause 17) Concerns were raised about clause 15(3) which deals specifically with the protection of the rights of citizens. It was posited that there should be language added in the provision to limit the permissible scope of questions in the order that the person may be required to answer. It was felt that the questions should expressly relate to matters relevant to the specific financial crime that led to the application for the order. Your Committee felt that a remedy to the provision would be to insert in subsection (3) immediately after the words "requiring the person" the words "in relation to the financial crime being investigated".

Clause 15(5) states certain rules governing what the order mayor may not be used for. Concerns were expressed about the principles of law that protect someone from incriminating himself or herself in answering questions. It was noted that there were no provision in the Bill to give protection against self-incrimination which is a matter addressed in the Charter of Fundamental Rights and Freedoms Bill. Your Committee recommends that in subsection (5) it is necessary to delete from paragraphs (b) and (c) the words "does not" wherever they appear and substitute therefor in each case, the words "shall not".

Your Committee decided that the words "shall be made without notice and" should be deleted from section 15 (10). The implication of deleting the words was that the application for the orders must be made with notice. Any question relating to the reasonableness of the notice would be governed by Rules of Court. 2.16 New Clause Your Committee decided that a new clause was necessary in the Bill to address the matter of assistance to authorized officer. (Fhis clause will be numbered as clause 16.) rhe marginal note to the new clause will state"Assistance to authorized officer" The new clause 16 will read as follows:

11 "An authorized officer acting in the execution of his office or duty may obtain such assistance from any other person, as he considers necessary.". 2.17 Clause 16 This clause describes the scope of powers under production order. (l'his clause will be renumbered as clause 18.) Your Committee accepts this clause. 2.18 Clause 17 This clause deals with the evidential value of information. (l'his clause will be renumbered clause 19.) Your Committee felt that the concluding statement in subsection (l) (b) was objectionable as the provision relating to non-admissibility extended to proceedings for an offence under the current clauses 17(11) (a) and (b) of the Bill. Your Committee felt that the issue could be resolved by deleting from subsection (1) the words "order under section IS" and substituting therefor the words "order under section 17" and deleting the words "offence under section IS" and substituting therefor the words "offence under section 17 (11) (b).". 2.19 Clause 18 Clause 18 relates to the application for restraint order. (!'his clause will be renumbered clause 20.) Your Committee accepts the clause. 2.20 Clause 19 This clause deals with restraint order. (!'his clause will be renumbered as clause 21.) Your Committee decided that the words "the Defendant" should be deleted from section 19 (1) (a).

Your Committee accepts that it is necessary to do an editorial change in subsection (2) by deleting the numeral "25" and substituting therefor the numeral "27"

Furthermore, your Committee decided to delete subsection (3), paragraph (b) and substitute therefor the following "(b) subject to subsection (4), the person's reasonable legal expenses in defending any proceedings under this Act in respect of a financial crime;" It was felt that the amendment was ncrcessary because it could be argued that the provision in the Bill could be successfully challenged as unconstitutional as it excludes expenses relating

12 to an offence that falls within clause 18(1) and the new provision would be more consistent with the Constitution.

Your Committee also agreed that it was necessary to insert a new subsection (4) in clause 19 in keeping with the amendment to clause 19 (3) (b). The new provision would read as follows: " (4) Where the Court exercises the power to make provision for enabling a person to meet legal expenses that he has incurred, or may incur, in respect of defending any proceedings under this Act in respect of a financial crime, it must ensure that the provision made (a) is limited to expenses that the person has reasonably incurred or that he may reasonably incur; (b) specifies the total amount that may be released in pursuance of the provision; and (c) is in accordance with the conditions that may be prescribed.". 2.21 Clause 20 This clause addresses the undertakings by the Crown. (This clause will be renumbered as clause 22.) Your Committee agrees with the clause. 2.22 Clause 21 This clause deals with notices of application for restraint order. (This clause will be renumbered as clause 23.) Your committee accepts this clause. 2.23 Clause 22 This clause deals with service of restraint order. This clause will be renumbered as clause 24.) Your Committee accepts this clause. 2.24 Clause 23 This clause deals with contravention of restraint order. (This clause will be renumbered as clause 25.) Your Committee accepts this clause. 2.25 Clause 24 This clause deals with notice and duration ofrestraint order. (This clause will be renumbered as clau$e 26.) Your Committee accepts that it is necessary to delete from subsection (2) (a) the numeral "19" and substitute therefor the numeral "21".

13 2.26 Clause 25 This clause deals with extension of restraint order. (This clause will be renumbered as clause 27.) Your Committee accepts this clause. 2.27 Clause 26 This clause deals with monitoring orders. (This clause will be renumbered as clause 28.) Your Committee accepts that in paragraph (a), of subsection (2) the word "or" at the end of paragraph (ii) should be deleted and substituted therefor the word "and". Your Committee also decided that the word "or" at the end of paragraph (b) should be deleted and sUbstituted therefor the word "and". It was noted that the proposed amendment ensures consistency with a similar provision in the Proceeds of Crime Act. 2.28 Clause 27 This clause deals with monitoring order not to be disposed. This clause will be renumbered as clause 29.)Your Committee accepts that it was necessary to do an editorial change by deleting from subsection 5 (b) the numerals "26(1)" and substituting therefor the numerals "28(1)". 2.29 Clause 28 This clause deals with certification of copies of documents. (This clause will be renumbered as clause 30.) Your Committee felt that there were no safeguards built into the clause. It was pointed out that this provision appeared to be circumventing the requirements ofthe Evidence Act and other rules of evidence relating to the admissibility of documents. The provision as worded provides for admissibility to be mandatory provided that the document is certified by the Justice of the Peace. Your Committee felt that the provision should be amended. The technical team was requested to review the provision to give effect to the recommendation of the Committee. The technical team after deliberating on the matter requested further guidance from the Committee on this matter. 2.30 Clause 29 This clause deals with search warrant to facilitate investigations. (This clause will be renumbered as clause 31) Concerns were raised in respect of clause 29(9) which refers to book, record or other document that was seized under a warrant. Your Committee accepts the recommendation that clause 29 (9) should 'make it clear that any book, record or other document not specified in the warrant that may be seized pursuant to clause 29 (6) may also be retained pursuant to clause 29 (9).

14 Your Committee recommends that it is necessary to delete from subsection (1) the numeral "15" and substitute therefor the numeral "17". Furthermore, to address the concerns discussed above, it is felt that it is necessary to insert in subsection (9), immediately after the words "seized under" the words "the authority of".

PART IV Offences and Penalties Generally 2.31 Clause 30 Clause 30 addresses offences and penalties generally. (This clause will be renumbered as clause 32.) Concerns were expressed about clause 30 (1) (b) that the provision would only apply where there was a Court order requiring the document to be produced or the question answered. In order to remedy the concerns your Committee recommends that it is necessary to insert in subsection (1) (b) immediately after the words "authorized officer" the words", acting pursuant to a court order made under section 17".

PART V General 2.32 Clauses 31 - 34 Clauses 31 - 34 are general clauses. (These clauses will be renumbered clause 33 to 36, respectively.) Your Committee accepts these clauses.

15 2.33 Schedule The schedule describes the offences and penalties relating to the legislation when enacted. Your Committee recommends that the entries in relation to section 9(3) and 9(4) should be deleted and substituted therefor the following under the appropriate columns First column Second Column

Brief Description of Offence Relevant Penalty Section Communicating or attempting to On summary conviction before a Resident communicate information otherwise 10(4) Magistrate than pursuant to the powers under this Act or any other enactment, a court (a) in the case of an individual, to a order or an arrangement entered into fine not exceeding one million under section 12. dollars or imprisonment for a term not exceeding one year or to both such fine and imprisonment;

(b) in the case of a body corporate, to a fine not exceeding three million dollars.

16 Consequential editorial adjustments to Schedule The section references in the Schedule, which are specified in the first column hereunder, are respectively replaced with the references in the second column.

Original Section Substituted Reference 15 (10) (a) 17 (10)(a)

15 (10) (b) 17 (10)(b)

23 (1) 25 (1)

26 (7) (a) 28 (7) (a)

26 (7)(b) 28 (7) (b)

27 (6) 29 (6)

30 (1)(a) 32 (1) (a)

30 (1)(b) 32 (l)(b)

30 (l)(c) 32 (1) (c)

30 (1) (d) 32 (l)(d)

30 (1)(e) 32(1) (e)

30 (1)(0 32(1)(0 -

Your Committee recommends the amendments to the Bill attached at (Appendix II).

4. ACKNOWLEDGEMENTS Your Committee wishes to express sincere gratitude to all those individuals and organizations that made written submissions and oral presentations or participated in the deliberations. In particular, the Committee wishes to thank The Jamaica Bankers' Association, The Norman Manley Law School and the Jamaican Bar Association. A special recognition to the staff of the following entities: Office of the Parliamentary Counsel, Attorney General's Chambers, Legal Reform Department, Financial Investigations Division, Financial Services Commission,

17 Office of the Director of Public Prosecutions, Bank of Jamaica and Ministry of Finance and the Public Service for the technical guidance given to the Committee throughout its deliberations.

Your Committee is also grateful to the members of the Press, who carried articles inviting members of the public to make submissions to the Committee and ably covered the meetings and reported on the proceedings to the public. To the Clerk to the Houses and her staff, a special thank you for the invaluable assistance and kind courtesies extended during the meetings.

Houses ofParliament March, 2010

18 APPENDIXI

ATTENDANCE RECORD

SEVEN (7) MEETINGS

Present Absent Apology

Hon. Audley Shaw - Chairman 5 2 2 Hon. Karl Samuda 4 3 0 Dr. the Hon. Christopher Tufton 5 2 2 Mrs. Marisa Dalrymple-Philibert 3 4 1 Mr. Clive Mullings 5 2 1 Dr. Omar Davies 4 3 0 Mr. Peter Bunting 3 4 3 Dr. Peter Phillips 5 2 2 Sen. The Hon. Dwight Nelson *** 1 4 1 Sen. The Hon. Arthur Williams 5 2 I Sen. Arnold J. Nicholson 2 5 1 Sen. Mark Golding 6 1 1

*** Possible number ofmeetings Member could attend = 5

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Appendix I]

AMENDMENTS TO FINANCIAL INVESTIGATIONS DIVISION BILL PROPOSED BY JOINT SELECT COMMITTEE

PROVISION AMENDMENT

Clause 1 Editorial: Delete the numeral "2008" and substitute therefor the numeral "2010".

Clause 2 1. In the definition of "authorized officer", delete the comma and all the words appearing after the words "Commissioner ofPolice".

2. Editorial: In the definition of"ChiefTechnical Director", delete the numeral "7" and substitute therefor the numeral "8".

3. Editorial: In the definition of "Division", delete the numeral "3" and substitute therefor the numeral "4".

3. In the definition of "public body", delete from paragraph (c) the words "person that," and substitute therefor the words "entity that".

Renumbering clauses Editorial: Renumber clauses 3 to 14 as clauses 4 to 15, 3 to 14 respectively.

New clause 3 Insert next after clause 2 the following as clause 3

"Object 3. The object of this Act is to establish a depart of Act. ment of Government with sufficient independence and authority to effectively deal with the multi dimensional and comp}ex problem of financial crime and confer upon it the responsibility to

(a) investigate all categories of financial cnme; 2

(b) collect infonnation and maintain intelligence databases on financial crimes;

(c) maintain an ann's length relationship with law enforcement agencies and other authorities ofJamaica and of foreign States, and with regional and international associations or organizations, with which it is required to share infonnation.";

(d) exercise its functions with due regard for the rights of citizens.

Clause 4 1. In subsection (1) (Renumber as '5') (a) delete from paragraph (c) the numeral "9" and substitute therefor the numeral "10"; (b) delete paragraph (d) and substitute therefor the following

"(d) where the Chief Technical Director considers it necessary, to disseminate information and reports referred to in paragraph (b) to

(i) the competent authority;

(ii) the Attorney General, the Commissioner of Police, any of the Revenue Commissioners under the Revenue Administra tion Act, the Commission for the Prevention of Corruption established under the Corruption (Prevention) Act or the Director of Public Prosecutions;

(iii) any other body designated by the Minister for the purposes of this paragraph;"; 3

(c) delete from paragraph (j) the words "restrained or forfeited under this Act or any other enactment" and substitute therefor the words "restrained under this Act or seized, restrained or forfeited under any other enactment".

2. Delete subsection (3).

Clause 5 Delete and substitute the following (Renumber as '6') "Functions 6. - (1) Subject to subsection (2), the conferral of, co ofpowers ofinvestigation upon the Division by operation this Act shall not be construed as affecting the between exercise ofany functions relating to the investiga Division and tion or prosecution of offences conferred upon any other other authority (hereinafter called an investigative authorities. authority), whether such functions are similar to these powers or not.

(2) Every investigative authority shall cooperate with the Division in the exercise ofthe functions conferred on the Division.

(3) The Division shall cooperate with an investigative authority in the exercise ofany functions conferred on the authority under this Act or any other enactment." .

Clause 7 Delete the words "the Governor-General may appoint" and (Renumber as '8') substitute therefor the words "there shall be appointed".

Clause 8 Delete and replace with the following (Renumber as '9') "Delegation of 9. - (1) The ChiefTechnical Director may functions. delegate, in writing, the exercise ofany function conferred upon him by or under this Act to any person or persons (hereinafter called "the delegate") as he thinks fit. 4

(2) A delegation under subsection (1) shall not affect the exercise ofsuch function by or the responsibility ofthe Chief Technical Director in relation to acts of the delegate carried out in lawful exercise of the delegated function.

(3) Any act done by or in relation to the delegate pursuant to the delegated function shall have the same effect as ifdone by or in relation to the Chief Technical Director.

(4) It is declared, in the interest of certainty, that a delegation under sub section (1) shall, in addition to conferring authority to exercise the delegated function, also subject the delegate to the same oblige tions as would apply under this Act to the Chief Technical Director's exercise of such function, and accordingly, the delegate shall be liable for any wrongful act or omission ofthe delegate occurring in the exercise of that authority." .

Clause 9 1. Delete from subsection (4)(a) the word "powers" and substitute (Renumber as '10') therefor the word "functions".

2. Editorial: Delete from subsection (4)(c) the numeral "11" and substitute therefor the numeral "12".

Clause 11 Renumber subsection (8) as subsection (9) and insert the following (Renumber as '12') as subsection (8)

" (8) For the purpose ofan agreement or arrangement under subsection (7), the Minister shall be satisfied (in relation to the entity party to such agreement or arrangement) as to the like matters as those which the Chief Technical Director is required to be satisfied ofin relation to an agreement or arrangement with a foreign financial intelligence department under subsection (4).". 5

Clause 13 1. In subsection (1), insert next after the word "confidentiality" (Renumber as '14') the words "(including confidentiality arising from legal professional privilege)" .

2. In subsection (2)

(a) delete the word "action, " ,.

(b) insert in paragraph (a), immediately after the word "Division" the words" or any individual to whom a function is delegated under section 9";

Clause 14 Delete and substitute therefor the following (Renumber as '15') "Interpreta 15. In this Part, "excluded material" means tion for Part III. (a) medical records;

(b) human tissue or fluid which has been taken for the purposes ofdiagnosis or medical treatment and which a person holds in confidence.".

New Clause 16 Insert next after Clause 15 (as renumbered) the following as clause 16

"Assistance to 16. An authorized officer acting in the authorized execution ofhis office or duty may obtain officer. such assistance from any other person, as he considers necessary.".

Ren umber clauses Renumber existing clauses 15 to 34 as clauses 17 to 36, 15 to 34 respectively.

Clause 15 1. In subsection (3), insert immediately after the words "requiring (Renumber as '17') the person" the words "in relation to the financial crime being investigated" . 6

2. In subsection (5), delete from paragraphs (b) and ( c) the words "does not "wherever they appear, and substitute therefor in each case the words "shall not".

3. In subsection (10), delete the words "shall be made without notice and".

Clause 17 In subsection (1), delete the words "order under section 15" and (Renumber as '19') substitute therefor the words "order under section 17" and delete the words "offence under sectionl5"and substitute therefor the words "offence under section 17 (11 ) (b)".

Clause 19 1. In subsection (1), delete the words "section 18" and substitute (Renumber as '21') therefor the words" section 20" and delete from paragraph (a) the words "the Defendant".

2. Editorial: In subsection (2), delete the numeral "25" and substitute therefor the numeral "27"

3. In subsection (3), delete paragraph (b) and substitute therefor the following

"(b) subject to subsection (4) , the person's reasonable legal expenses in defending any proceedings under this Act in respect of a financial crime ;".

3. Insert next after subsection (3) the following as subsection (4)

" (4) Where the Court exercises the power to make provision for enabling a person to meet legal expenses that he has incurred, or may incur, in respect of defending any proceedings under this Act in respect of a financial crime, it must ensure that the provision made

(a) is limited to expenses that the person has reasonably incurred or that he may reasonably Incur;

(b) specifies the total amount that may be released in pursuance of the provision; and 7

Clause 24 Editorial: Delete from subsection (2) (a) the numeral "19" (Renumber as '26') and substitute therefor the numeral "21 ".

Clause 26 In subsection (2) (Renumber as '28') (a) in paragraph (a), insert the word "or" at the end of paragraph (i) and delete the word "or" at end of paragraph (ii) and substitute therefor the word "and";

(b) in paragraph (b), delete the word "or" at the end of the paragraph and substitute therefor the word "and".

Clause 27 Editorial: Delete from subsection (5) (b) the numerals "26(1)" (Renumber as '29') and substitute therefor the numerals "28(1)".

Clause 29 1. Editorial: Delete from subsection (1) the numeral "15" and substitute therefor the numeral" 17".

2. Insert in subsection (9), immediately after the words "seized under" the words "the authority of'.

Clause 30 Insert in subsection (1) (b) immediately after the words "authorized officer" the words", acting pursuant to a court order made under section 17". 8

SCHEDULE Delete the entries in relation to section 9(3) and 9(4) and substitute therefor the following under the appropriate columns

First column Second Column

Brief Description Relevant of Offence Section Penalty - - On summary conviction before a Resident Magistrate

(a) in the case of an in Communicating or attempting dividual, to a fine not to communicate information exceeding one million otherwise than pursuant to the dollars or imprison powers under this Act or any ment for a term not 10(4) other enactment, a court order exceeding one year or or an arrangement entered into to both such fme and under section 12. imprisonment;

(b) in the case ofa body corporate, to a fme not exceeding three million dollars.

I 9

Consequential The section references in the Schedule, which are specified in editorial adjust the first column hereunder, are respectively replaced with ments to Schedule the references in the second column.

Original Section Reference Substituted Reference -- -

15 (10) (a) 17 (10)(a)

15 (10) (b) 17(10) (b)

23 (1) 25 (1)

26 (7) (a) 28 (7) (a)

26 (7) (b) 28 (7) (b)

27 (6) 29 (6)

30 (l)(a) 32 (1) (a)

30 (1) (b) 32 (1) (b)

30 (l)(c) 32 (1) (c)

30 (1)(d) 32 (1) (d)

30 (1) (e) 32 (1) (e)

30 (1)(f) 32 (1)(f)

I SIGNATURES OF .W"~~.L:fIl"I-n

'J_>..A../r'•.~ Mrs. Marisa Dalrymple-Philibert

;;;,~~~....•.... £~...... Mr. Peter Bunting

~.(P:... 9-:-:~ ...... ·.. . Senator the Hon. Arthur Williams Senator Dwight Nelson

...... 0.J0~...... Senator Arnold J. Nicholson Senator Mark Golding