Error

The Proceeds of Crime Act, 2000 establishes several specific money laundering offences and penalties. These offences and penalties are found in sections 40 to 45 of the Act, and are set out below.
 

Definitions

The term “criminal conduct” includes (1) drug trafficking, (2) bribery and corruption, (3) money laundering, (4) any offence which may be tried in the Supreme Court of The Bahamas other than a drug trafficking offence and (5) an offence committed anywhere that, if committed in The Bahamas, would constitute an offence in The Bahamas as set out in the Schedule to the Proceeds of Crime Act, 2000.

The term “property” is defined under the Act to mean money and all other property, moveable or immovable, including things in action and other intangible and incorporeal property.

The specific money laundering offences are: (1) concealing, transferring or dealing with the proceeds of criminal conduct; (2) assisting another to conceal proceeds of criminal conduct; (3) acquiring, using or possessing property which are the proceeds of criminal conduct, (4) failing to disclose to the FIU or a police officer that another person is engaged in money laundering when knowing, suspecting or having reasonable grounds to suspect that such is the case, and (5) tipping off. In performing their functions financial institutions should pay particular attention to the vulnerabilities of their service or product inherent in the offences.
 

Concealing, Transferring or Dealing With The Proceeds of Criminal Conduct (Section 40)

It is an offence to use, transfer, send or deliver to any person or place, or to dispose of or otherwise deal with any property, for the purpose of concealing or disguising such property, knowing, suspecting or having a reasonable suspicion that the property (in whole or in part, directly or indirectly) is the proceeds of criminal conduct. For this offence, references to concealing or disguising property includes concealing or disguising the nature, source, location, disposition, movement or ownership or any rights with respect to the property.  This section applies to a person’s own proceeds of criminal conduct or where he knows or has reasonable grounds to suspect that the property he is dealing with represents the proceeds of another’s criminal conduct.

Penalty: The offender is punishable on summary conviction with five years imprisonment or a fine of BS$100,000.00 or both; or on conviction on information to imprisonment for 20 years or to an unlimited fine or both.

Assisting Another to Conceal The Proceeds of Criminal Conduct (Section 41).

It is an offence for any person to provide assistance to a criminal for the purpose of obtaining, concealing, retaining or investing funds, knowing or suspecting, or having reasonable grounds to suspect that those funds are the proceeds of serious criminal conduct and/or a “relevant criminal offence”.

Penalty: On summary conviction by five years imprisonment or a fine of BS$100,000.00 or both; or on conviction on information to imprisonment for 20 years or to an unlimited fine, or both. These are mandatory penalties.

Defence: It is a defence that the person concerned did not know, suspect or have reasonable grounds to suspect that the funds in question are the proceeds of serious criminal conduct, or that he intended to disclose to a police officer his suspicion, belief or any matter on which such suspicion or belief is based, but there is a reasonable excuse for his failure to make a disclosure.

Acquisition, Possession or Use (Section 42)

It is an offence to acquire, use or possess a property which is the proceeds (whether wholly or partially, directly or indirectly) of criminal conduct, knowing, suspecting or having reasonable grounds to suspect that such a property is the proceeds of criminal conduct. Having possession is construed to include doing any act in relation to the property.

Penalty: On summary conviction by five years imprisonment or a fine of BS$100,000.00 or both; or on conviction on information to imprisonment for 20 years or to an unlimited fine or both. It is important to note that these are mandatory penalties.

Defence: That the property in question was obtained for adequate consideration. [NB: The provision of goods or services which assist in the criminal conduct does not qualify as consideration for the purposes of this offence.]

Failure to Disclose (Section 43)

It is an offence if a person fails to disclose to the FIU or a police officer that another person is engaged in money laundering related to proceeds of drug trafficking or a relevant offence where he knows, suspects or has reasonable grounds to suspect that such is the case and that knowledge or suspicion came to his attention in the course of his trade, profession, business or employment. Disclosure to the MLRO will suffice as disclosure to the authorities under this section.

Penalty: The offender is punishable on summary conviction with five years imprisonment or a fine of BS$100,000.00 or both; or on conviction on information to imprisonment for 20 years or to an unlimited fine or both.

Defence: It is a defence to prove that the defendant took all  reasonable steps to ensure that he complied with the statutory requirement to report a transaction or proposed transaction to the Financial Intelligence Unit; or that in the circumstances of the particular case, he could not reasonably  have been expected to comply with the provision.

Tipping Off (Section 44)

It is also an offence for anyone who knows, suspects or has reasonable grounds to suspect that a disclosure has been made, or that the authorities are acting, or are proposing to act, in connection with an investigation into money laundering, to prejudice an investigation by so informing the person who is the subject of a suspicion, or any third party of the disclosure, action or proposed action.  Preliminary enquiries of a customer in order to verify his identity or to ascertain the source of funds or the precise nature of the transaction being undertaken will not trigger a tipping off offence before a suspicious transaction report has been submitted in respect of that customer unless the enquirer knows that an investigation is underway or the enquiries are likely to prejudice an investigation.

Penalty: The punishment on summary conviction is a term of three years imprisonment or a fine of BS$50,000.00 or both. On conviction on information the penalty is ten years imprisonment or an unlimited fine or both.

Defence: It is a defence if the person making the disclosure did not know or suspect that the disclosure was made under a lawful authority or with reasonable excuse.