It appears that there is now a generally well-worked out harmony and understanding among the Anguilla Bar Association, the Attorney General’s Chambers, the Anguilla Financial Services Association (AFSA) and the Anguilla Christian Council, with respect to what was seen in some circles as a controversial Proceeds of Crime Bill. With a good deal of agreement on all sides, the draft legislation is now ready to be presented to the House of Assembly over the coming days by Attorney General, Wilhelm Bourne, who played a major role in the public discussions.

A section of the congregation at St. Mary's Anglican Church

The most recent discussion, like the first, was held under the auspices of the Anguilla Christian Council at St. Mary’s Anglican Church on Thursday evening, June 25, chaired by Superintendent of the Methodist Circuit, Rev. Dr. H. Clifton Niles. This was a follow-up to the meeting held on June 11 aimed at further clarifying issues relative to the Proceeds of Crime Bill and the Financial Services Bill. The Proceeds of Crime Bill was more contentious and some six points of concern or disagreement were identified with a view to having them addressed during meetings between the Bar and the Attorney General’s Chambers.

“Someone asked me why the meetings in the Church,” Rev. Niles said in his opening remarks. “The Church is concerned about the affairs of the people, their needs and issues, and I believe there is no better place to meet. Perhaps over the past several years the Church in Anguilla has not been playing the role it should play in the development of the society, and perhaps it is a new era, a new dawning for us here in Anguilla. I hope so. I trust so. I believe so. It is so.” He made the point that the meeting was aimed at “clarifying issues, removing doubts and clearing up any grey areas” about the draft legislation.

The Attorney General said the Proceeds of Crime Bill was aimed at updating the laws of Anguilla - to make them legislation “more compliant with the financial standards which are now becoming world-wide and required in the western world at least.” He explained that Anguilla was a member of the Caribbean Financial Action Task Force and that a delegation occasionally visited the various territories to ensure that their laws were sufficiently strong to discourage crimes to which the legislation applied. A team is expected to visit the island later this month to review the financial laws. Mr. Bourne stressed that the Caribbean was “riddled with crime and certain jurisdictions are suffering greatly and…had no answer as to how they are going to deal with that problem of crime.” He felt that Anguilla was still in a position to avoid the problems that might attract crime and hence the reason for the legislation.

AG Wilhelm Bourne

Mr. Bourne said that under the law, in order for an action to be taken against someone, there must be a serious offence committed with a view to gaining proceeds of crime. He also stressed that investigating authorities were required to conduct themselves properly and act thoroughly to satisfy the court when dealing with a particular case. “I told you last time that you cannot and will not, lose your property over some dubious provision in the law. It cannot happen.” If there are no proceeds to trace, that’s the end of the matter.”

He disclosed that AFSA had submitted a number of comments to his Chambers and the Bar Association. “Several of them, in my opinion, had a lot of merit and we gave effect to them” he reported, adding that just before the meeting at the Church, they were sorting out the last issues aimed at having a better Bill.

“I ask you to support this Bill going forward. It is very important to your country for the future,” the Attorney General urged. “I challenge you to have faith that, in time, you will see that your fears will not be realised. In other words, you cannot, and will not, lose your property over some dubious provision in law. It cannot happen. It will not happen, I give you that assurance.”

Rev. Niles said that there were six major issues which were identified and although it was reported that they had been ironed out, he and other persons wanted to know what the actual position was. One of the issues related to civil confiscation of property and a retroactive provision in the Bill to deal with that matter over a long period of time.

Lawyer Joyce Kentish-Elan

President of the Bar Association, Joyce Kentish-Elan, said the matter was raised with the Attorney General’s Chambers and that agreement had been reached for a cut-off period dating back to 2000 when the first Proceeds of Crime Bill was introduced. “You cannot go back beyond that and we thought…that was a reasonable compromise in the circumstances,” she stated. The President of the Bar answered another question by Rev. Niles relating to a provision in the Bill that an aggrieved person could apply to the court for compensation but that could not be granted until the person showed that there was a serious flaw in the law.

She said that requirement was a serious concern to the Bar and AFSA and that they had put forward that a person freed of a compensation order, and from any conviction, should be able to approach the court and ask for compensation. She explained that the Attorney General’s Chambers had sent back a detailed explanation which they were not satisfied with and as a result they had undertaken to do some legal research into existing case law. She stressed that, notwithstanding the provisions of the Bill, it was possible for a person, who believed he was wrongly dealt with, to go to a lawyer and seek redress by the court.

Rev. H. Clifton Niles

Jean Dyer of AFSA, commented on another matter raised by Rev. Niles. It was that once a person’s financial property was frozen as a result of a charge under the draft Bill, the person could not use his own resources for his legal defence. “When we looked at the constitutional provisions, we were a bit concerned about this because the constitution provides that when you are charged with an offence, you should be able to defend yourself at your own expense,” she replied. “The Attorney General’s Chambers has accepted our recommendation but I should say that it does not accept that it is unconstitutional…” She said, however, that the Chambers had referred to another matter which had confirmed the Bar’s position that someone, who was not convicted, must be able to defend himself and therefore the required legal fees should be made available. It was agreed that the Bill would be amended accordingly.

The meeting dealt with several other issues. In the end it was agreed that the various contentious matters were virtually addressed and that all the parties were generally satisfied that the draft legislation was ready for presentation in the Anguilla House of Assembly. That meeting of the House takes place on July 7 and 8.

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