The Asset Seizure and Forfeiture Act 2020 (the ASFA) was signed into law by the Governor of the BVI on 23 July 2020 and was Gazetted on 28 July 2020. The ASFA will come into force on such a date as may be published by the Minister in the Gazette. The ASFA is another piece of legislation that has been added to the arsenal of the various competent authorities in relation to the management of certain property seized or restrained in connection with certain types of “white collar” offences – including matters relevant to proceeds of crime. The ASFA will be particularly useful to various practitioners in the financial services industry such as forensic accountants, auditors, insolvency practitioners, voluntary or court appointed liquidators, etc.
Purpose of the ASFA
Broadly, the purposes of the ASFA are:
- To authorise the Committee to provide consultative and other services to law enforcement agencies in relation to the seizure or restraint of property in connection with designated offences, or property that is or may be proceeds of crime or offences-related property
- To authorise the Committee to manage certain property seized or restrained under a restraint order made under the Drug Trafficking Offences Act 1992, the Proceeds of Criminal Conduct Act 1997, the Drug (Prevention and Misuse) Act 1991, the Criminal Justice (International Cooperation) Act 1993, the Financial Investigation Agency Act 2003, the Police Act Cap 165, 1991, the Criminal Code 1997, the Customs Duties and Management Act 2010, the Post Office Act Cap. 169, 1991, the Post Office Offences Act Cap 56, 1991, the Aviation Security Act 1982 (UK), the Air Navigation Overseas Territories Order, the Civil Aviation Act 1949 (UK), the Fisheries Act 1997, the Fisheries Regulations 2001, the Mutual Legal Assistance Tax Matters Act 2003, the Mutual Legal Assistance (USA) Act 1990, the Terrorist Asset-Freeing etc. Act 2010 (Overseas Territories) Order 2011 and the Anti-Terrorism (Financial and Other Measures) (Overseas Territories) Order 2002
- To authorise the Committee to manage and dispose of property referred to in (2) above and property that is the proceeds of crime or offence-related property, when such property is forfeited to the Crown
- Where property referred to in (3) is forfeited to the Crown and is disposed of, to provide authority for the sharing, in certain circumstances, of the proceeds of disposition with the law enforcement agencies that participated in the investigations of the offences which led to the forfeiture or the imposition of a fine
The Asset Seizure and Forfeiture Management Committee
The Committee comprises the following persons: the Chairperson (who is the Financial Secretary), the Managing Director of the Financial Services Commission, the Commissioner of Police, the Commissioner of Customs, the Director of the Financial Investigation Agency, the Director of the International Tax Authority and the Permanent Secretary in the Office of the Premier.
The Committee is largely responsible for:
- Providing advice to the Minister in respect of the carrying out by the Minister of any of his functions under the ASFA
- Ensuring that assets under the control and management of the Committee under the ASFA are used in accordance with the purposes and functions outlined in the ASFA and accounted for in a clear and transparent manner, the Committee may require such reports and accounts as it considers necessary for the purposes of ensuring its proper oversight with respect to the funds provided
- Reviewing and making determinations in relation to financial statements prepared and presented by the Financial Secretary, the Financial Secretary will present the financial statements to the Committee for its review and advice
- Performing such other functions as would be consistent with the provisions of the ASFA and the objectives and purposes of the Asset Seizure and Forfeiture Fund
Management of the property
The Committee, on taking possession or control of property that is forfeited, will be responsible for the custody and management of all of the property. Where the property is in the possession or under the control of the Committee is forfeited to the Crown, the Committee will continue to be responsible for the custody and management of same until the property is disposed of. In addition to being responsible for the custody and management of property, the Committee will be responsible until the property is disposed of, for the custody and management of all proceeds of crime, offence-related property and property that was the subject of an application under any enactment that was forfeited to the Crown and that was not in the possession under the control of the Committee prior to their forfeiture.
Transfer of property
Every person who has control of any property that is subject to a management order will, as soon as practicable after the order is issued, transfer the control of the property to the Committee, except for any property or any part of the property that is needed as evidence or is necessary for the purposes of an investigation. Where the Committee takes control of property and detains the property in a location the Committee will prepare a report identifying the location of the property and cause the report to be filed with the clerk of the court that issued the warrant.
The Attorney General, or any other person with the written consent of the Attorney General, may apply to any judge for a management order in respect of any seized property. An application for a management order in respect of any seized property may be heard at the same time as an order sought under any of the enactments referred to above, in respect of the seized property.
Where an application for a management order is made, the judge hearing the application can make an order allowing the Committee to take possession and control of, and to manage or otherwise deal with, the seized property referred to in the order if the judge is of the opinion that the seized property may be required for the purposes of any provision respecting forfeiture in any of the enactments referred to above.
The power of the Committee in respect of any seized property that is the subject of a management order includes, in the case of perishable or rapidly deprecating property, the power to sell such property and in the case of property that has little or no value, the power to destroy that property.
Prior to the Committee destroying property that has little or no value, the Committee can apply to the court for a destruction order. Before making a destruction order, the court will require notice to be given and may hear any person who in the court’s opinion appears to have a valid interest in the property. The notice should be given in the manner that the court directs or that may be specified in the rules of the court and be of any duration that the court considers reasonable or that may be specified in the rules of court.
The court may order that the property be destroyed if it is satisfied that the property has little or no value, whether financial or not. A management order ceases to have effect when the property that is the subject of the management order is returned in accordance with the law to the applicant or forfeited to the Crown.
A management order may be subject to such conditions as the judge making the order thinks fit. The Committee may at any time apply to a judge to cancel or vary any condition to which a management order is subject.
Sharing within the BVI
Where a law enforcement agency in the BVI has participated in the investigation of an offence that lead to the forfeiture to the Crown of property that is or was the subject of a management order, the Committee will make a recommendation to Cabinet to increase the respective law enforcement agency’s share from the Cabinet’s percentage allocation. These percentage allocations are set out in Schedule 2 of the ASFA.
Sharing outside the BVI
The Attorney General can, with the approval of the Cabinet and in accordance with regulations, enter into an agreement with the Government of any foreign state respecting the reciprocal sharing of the proceeds or disposition of property forfeited to the Crown and the proceeds arising from the disposition of property by that foreign state and, if law enforcement agencies of that foreign state, or of the BVI, have participated in the investigation of the offence(s) that led to the forfeiture of the property or if the law enforcement agencies’ participation led to the forfeiture of the property.
Asset Seizure and Forfeiture Fund
The Fund will be under the administration and control of the Committee. Proceeds of disposition of forfeited property or any amount recovered as the proceeds of disposition of that forfeited property can be paid into the Fund together with money paid to the Government of the BVI by a foreign jurisdiction in respect of confiscated assets, whether under an agreement or arrangement providing for mutual assistance in criminal matters or otherwise.
A copy of the ASFA can be found here.