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Bahamas

This law is only categorised as an illicit enrichment law in respect of its application to politically exposed persons and public office holders. Futhermore, the 'qualified' status of this law is somewhat blurred, and depends largely on the extent to which a law enforcement authority would need to justify a ‘charge’ under Section 75. The 'qualified' categorisation also assumes that the officer's statement in an application under Section 75(5) that they 'reasonably believe' that the property was unlawfully acquired can be subjected to judicial scrutiny.

75. Application for an Unexplained Wealth Order nisi.

(1) Proceedings under this Part shall be civil proceedings.

(2) This Part shall only apply if any one or more of the following conditions apply where the relevant person –

is or has been –
(i) a politically exposed person;
(ii) a public office holder;
(iii) a respondent to an application for civil forfeiture pursuant to Part V of this Act;
(iv) convicted of an offence punishable with imprisonment in The Bahamas;
(v) convicted of an offence punishable with imprisonment under a law of a foreign jurisdiction, in relation to acts or omissions which, had they occurred in The Bahamas, would have constituted an offence in the Bahamas;
(vi) the recipient of property obtained by criminal conduct including gifts caught be the [Act];
(vii) the subject of restraint, confiscation, or forfeiture proceedings in a foreign jurisdiction; or
(viii) an individual or officer of an entity subject to United Nations Security Council sanction; and
has been charged with one or more of the following types of criminal conduct –
(i) bribery;
(ii) a corruption offence of extortion or misconduct in public office;
(iii) falsification of accounts;
(iv) stealing by reason of service of employment;
(v) money laundering;
(vi) fraud;
(vii) drug trafficking;
(viii) firearms trafficking;
(ix) proliferation of weapons of mass destruction;
(x) human trafficking; or
(xi) any identified risk.

(3) Where a relevant person makes a statement pursuant to an order under this Part, anything disclosed in any statement and any information, document, or thing obtained as a direct or indirect consequence of the statement shall not be admissible against the person in any criminal proceeding except a proceeding in respect of the falsity of the statement.

(4) The enforcement authority may apply to a Court in writing for an order requiring the relevant person to file declarations and answer questions as required in relation to their assets.

(5) An application for an order under subsection (4) must be supported by an affidavit by an authorised officer stating –

the identity of the relevant person;
that the authorised officer reasonably suspects that the relevant person’s total wealth exceeds the value of his lawfully obtained wealth;
that any property the authorised officer believes is held by the relevant person was unlawfully obtained;
the property the authorised officer reasonably suspects is owned by the relevant person or is under his effective control.

(6) The Court may make an order without notice to the relevant person, if the enforcement authority requests the Court to do so and it appears necessary in the interests of justice.

76. Court may make an order requiring person to appear

(1) A Court may make an Unexplained Wealth Order nisi, requiring the relevant person to appear before the Court for the purpose of enabling the Court to decides whether or not to make an Unexplained Wealth Order absolute if –

the Court is satisfied that the authorised officer has reasonable grounds to suspect that the relevant person’s total wealth exceeds the value of his wealth that was lawfully obtained; and
the evidential requirements in section 75(5) for the application have been met.

(2) For the purposes of this Part –

“lawfully obtained” means property which has been acquired by the relevant person through legitimate activities and includes property acquired by inheritance, or other legitimate transfer; and

“unexplained wealth” means any money or property of an origin which cannot be explained as being lawfully obtained.

77. Application to revoke an Unexplained Wealth Order nisi.

(1) If the Court makes an Unexplained Wealth Order nisi, the relevant person may apply to the Court to revoke the order within twenty-eight days of notice of the order.

(2) If such an application is made, the Court may order an inter parties hearing date within fourteen days or the first available date.

(3) Where an application is made under this section, the applicant must give the enforcement authority —

written notice of the application; and
a copy of any affidavit supporting the application.

(4) Where an application is made under this section, the applicant may appear and adduce evidence.

(5) The enforcement authority may appear and adduce evidence at the hearing of any application made under this section and must give the relevant person a copy of any material it proposes to rely on to contest the application.

(6) The notice and copies of any evidence or pleadings under this section must be given no later than seven days before the hearing of the application.

(7) The Court may revoke the Unexplained Wealth Order nisi if satisfied that—

there are no grounds on which the order could be made absolute; or
it is in the interest of justice to do so.

78. Application for a Unexplained Wealth Order absolute.

(1) The enforcement authority may apply to the Court for an Unexplained Wealth Order absolute.

(2) A Court may make an Unexplained Wealth Order absolute requiring the relevant person to pay a specified amount to the Crown if—

the Court has made an Unexplained Wealth Order nisi, which has not been revoked, in relation to the relevant person; and
the Court is satisfied on a balance of probabilities that any part of the relevant person’s wealth was not lawfully obtained or held.

(3) The Court must specify in the order that the relevant person is liable to pay to the Crown an amount equal to the amount that the Court is satisfied does not represent the relevant person’s lawfully acquired property (hereinafter referred to as the relevant person’s “unexplained wealth amount”).

(4) In proceedings under this section, the burden of proving that the relevant person’s wealth is lawfully acquired lies on the relevant person.

(5) When considering the issues under subsection (2), the Court may have regard to information not included in the Unexplained Wealth Order nisi.

(6) When considering the amount of an Unexplained Wealth Order absolute, the Court must deduct an amount equal to the value, at the time of making the order, of any property of the relevant person forfeited under a forfeiture, confiscation order or an extended benefit order, including any foreign forfeiture or confiscation order.

79. Property subject to a person’s effective control.

(1) If —

the Court has made an absolute Unexplained Wealth Order; and
the enforcement authority applies to the Court for an order under this section; and
the Court is satisfied that particular property is subject to the effective control of the relevant person;

the Court may make an order declaring that the whole, or a specified part, of that property is available to satisfy the Unexplained Wealth Order.

(2) An order under subsection (1) may be enforced against the property as if the property were the relevant person’s property.

(3) An order which restricts the right of the relevant person or any named person to deal with the property identified in this section may be made, upon application of the enforcement authority, if the Court is satisfied that the property would not be available to the enforcement authority without such a restriction.

(4) If the enforcement authority applies for an order under subsection (1) relating to particular property, the authority must give written notice of the application to —
the relevant person who is subject to the Unexplained Wealth Order, absolute; and
any other person whom it has reason to believe may have an interest in the property.

(5) The relevant person, and any person who claims an interest in the property, may appear and adduce evidence at the hearing of the application.

(6) For the purposes of this Act, “effective control” means in relation to property means the exercise of practical control over the property whether or not that control is supported by any property interest or other legally enforceable power and in determining whether property is subject to the effective control of a person —

it is not necessary to be satisfied that the person has an interest in the property;
regard may be had to –
(i) shareholdings in, non-shareholding membership in, debentures over, or directorships of a company that has an interest (whether direct or indirect) in the property;
(ii) a trust that has a relationship to the property;
(iii) family, domestic, business or other relationships between persons having an interest in the property, or in companies referred to in paragraph (a), or trusts referred to in paragraph (b), and other persons; and
(iv) the ability of the person to decide whether and to what extent the property may be dealt with.

(7) A Court may refuse to treat property as being subject to the effective control of a person if it is satisfied that a person's ownership or control of the property is subject to a lawful, bona fide trust held for the benefit of a third party to the extent that the same is shown, on a balance of probabilities by the trustee or settlor, not to consist of the proceeds of any crime.

80. Enforcement of an Unexplained Wealth Order absolute.

(1) An amount payable by the relevant person to the Crown under an Unexplained Wealth Order, absolute is a civil debt due by the relevant person to the Crown.
(2) An Unexplained Wealth Order absolute against a relevant person shall be enforced as an order made in civil proceedings instituted by the Crown against the relevant person to recover a debt due by him to the Crown.


Type: Qualified Civil Illicit Enrichment Laws

Last update on LEARN: Thursday 3 March 2022, 13:00