THE Senate yesterday passed the Proceeds of Crime Bill which will authorise the state to deprive criminals of all properties and accumulated wealth which cannot be explained by legitimate activities.

The bill, which will now go back to the Lower House for final approval before being sent to the governor general for his signature and then to be gazetted, was passed in the Senate without amendment, despite reservations from some legislators from the Opposition.

The legislation, when gazetted, will repeal the Money Laundering Act and comes as part of government’s efforts to fight organised crime and to ensure that persons engaged in criminal activities do not profit from their illegal activities.

In the meantime, the passage of the legislation in the Upper House was immediately welcomed yesterday by Police Commissioner Lucius Thomas.

The police chief told the Observer that he was happy about the progress made with the legislation and hoped to see its speedy enactment.

According to Thomas, the bill, when taken through its final stages, would “form an important aspect of the constabulary’s fight against organised crime”.

He pointed to the recent clampdown on the lottery scam in Montego Bay, St James, noting that the Proceeds of Crime legislation would be of particular use in such situations as it was recognised that the proceeds from such activities were used to fund a range of criminal activities and influence the gun and drugs trade in the western end of the island.

On Thursday, Opposition senators, led by Dorothy Lightbourne, expressed discomfort with provisions in the bill, and warned that in seeking to seize property and earnings obtained through criminal activities the state should ensure that it does not trample on fundamental human rights in the process.

Speaking on Thursday during the initial stages of the debate, Senator Lightbourne said while there was support for the ‘intent of the legislation’, “established principles were not being used to establish criminal lifestyle or criminal conduct”.

According to the senator, she was not satisfied as to how the court would be able to decide if a person had a criminal lifestyle or had benefited from general criminal conduct.

In support of Lightbourne’s concerns, colleague senators Shirley Williams and Trevor MacMillan said while the severity of the problem was acknowledged and while there was an urge to “let the heavy hand of the law fall where it may, there has to be balance”.

Williams said the concern was with the allowances for the court to take action leading to the forfeiting of property and enforcing pecuniary penalty orders in the absence of a conviction.

“The absence of a conviction is what bothers me because the fact is if we had evidence then we would have conviction…this affects our constitutional rights,” Williams insisted.

But Attorney General Senator A J Nicholson, responding to the concerns yesterday, dismissed the arguments as baseless.

“There is no merit to the points that were raised by one limb of the Opposition. The argument they directed was directed on sandy soil; this is legislation that has passed the bar raised by the human rights regime of the European Union,” Senator Nicholson said.

“The point was raised about the forfeiture and the pecuniary penalty order and the balance of proof in determining criminal lifestyle that it should be beyond a reasonable doubt rather than a balance of probability; but a hearing to determine if the defendant should be subject to a forfeiture or a pecuniary penalty order is not criminal in nature, that hearing is not a criminal hearing,” added the attorney general.

“It is not a trial of the offender, the trial determining guilt would have already been concluded; the purpose of this hearing is to determine the extent to which the defendant has benefited from crime,” Nicholson told the Senate, adding that it was not necessary to impose the criminal standard of proof to proceedings which are essentially civil in substance. He said all international conventions required this.

In the meantime, the attorney general said his greatest fear with regards to the administration of the Act and in going after the ‘kingfish’ was in relation to ‘tipping off’.

“I forsee that this is going to be a giant stumbling block in the way of enforcement agencies as they pursue the assets of criminals; mark my words, tipping off is going to be the bane of this legislation and its implementation,” said Nicholson.