CHAPTER
93
PROCEEDS OF CRIME |
ARRANGEMENT OF
SECTIONS |
SECTION |
PART I
PRELIMINARY |
Introductory |
|
Commencement and application. |
Interpretation |
Meaning of "drug trafficking",
"relevant offence", "criminal conduct". |
Meaning of "property", "realisable
property", etc. |
|
Gifts caught by this Act. |
|
Institution and conclusion of proceedings. |
PART II
CONFISCATION ORDERS |
Confiscation Orders |
Confiscation orders: drug trafficking. |
Confiscation orders: relevant offences. |
Assessing proceeds of drug trafficking. |
|
|
Provision of information by defendant. |
Subsequent Proceedings |
Protection of third party rights. |
|
Revised assessment of proceeds of criminal
conduct. |
Reconsideration, etc., supplementary. |
Increase in realisable property. |
Inadequacy of realisable property. |
Absconded Persons, etc. |
Confiscation order where defendant has absconded
or died. |
Variation of order made against absconder. |
PART III
ENFORCEMENT OF CONFISCATION ORDERS |
Default Powers |
|
|
Restraint and Charging
Orders |
Cases in which restraint and charging orders may
be made. |
|
|
Charging orders: supplementary. |
Realisation of Property |
|
Application of proceeds, of realisation, etc. |
Exercise of powers for realisation of property. |
Receivers: supplementary. |
Insolvency |
|
Winding up of company holding realisable
property. |
PART IV
INFORMATION GATHERING POWERS |
|
Failure to comply with production order. |
|
Disclosure of information by Government
Departments. |
|
PART V
MONEY LAUNDERING |
Offences |
Concealing, transferring or dealing with
proceeds of criminal conduct. |
Assisting another to conceal proceeds of
criminal conduct. |
Acquisition, possession or use of proceeds of
criminal conduct. |
Disclosure of knowledge or suspicion of money
laundering. |
|
Penalties |
Penalties for money laundering, etc. |
PART VI
SEIZURE OF CASH |
Seizure and detention of cash. |
Forfeiture orders and appeals. |
|
PART VII
MISCELLANEOUS AND SUPPLEMENTAL |
Foreign Orders, etc. |
Enforcement of external confiscation orders. |
Registration of external confiscation orders. |
Evidence of corresponding law. |
Offences and Police
Powers, etc. |
|
Administration of the Fund. |
Offences by bodies corporate. |
|
Police officer's duty of confidentiality. |
Procedure |
|
|
|
|
Supplemental |
|
|
SCHEDULE. |
CHAPTER 93 |
PROCEEDS OF CRIME |
An Act to
empower the Police, Customs and the Courts in relation to money laundering,
search, seizure and confiscation of the proceeds of crime and for connected
purposes. | 44 of 2000
S.I. 128/2001 |
[Commencement 29th
December, 2000] |
PART I
PRELIMINARY |
Introductory |
1. This Act may be cited as the Proceeds of Crime Act,
2000. | Short title. |
2. (1) This Act shall come into operation on such day as
the Minister responsible for the Police may appoint by notice published in the Gazette. | Commencement and application. |
(2) This Act shall
apply to any property, whether or not situated in The Bahamas. |
Interpretation |
3. In this Act- | Meaning of drug trafficking, relevant offence,
criminal conduct. |
"criminal
conduct" means- |
|
|
"drug
trafficking" means doing or being concerned in, whether in The Bahamas or
elsewhere, any act constituting- |
(a) a drug
trafficking offence, or |
(b) an offence
punishable under a corresponding law, and includes entering into or being
otherwise concerned in, whether in The Bahamas or elsewhere, a drug trafficking
arrangement; |
"drug
trafficking arrangement" means an arrangement whereby- |
(a) the
retention or control by or on behalf of another person of the proceeds of drug
trafficking is facilitated; or |
(b) the
proceeds of drug trafficking are to be used to secure funds to be placed at
that other person's disposal or are used to acquire property for that other
person's benefit; |
"drug
trafficking offence" means any of the following- |
(a) an offence
of cultivating, trading or importing raw opium, coca leaves, Indian hemp and
other controlled drugs under Parts II, III and IV of the Dangerous Drugs Act, 2000; |
(b) an offence
of manufacturing, selling or using prepared opium under section 8(a) of the Dangerous Drugs Act, 2000 or in
contravention of any rule made under section 10 of the Dangerous Drugs Act,
2000; |
(c) an offence
of exporting or importing a dangerous drug contrary to section 14(7) or 15(6)
of the Dangerous Drugs Act, 2000; |
(d) an offence
of possession with the intent to supply under section 22(1) or supplying under
section 23(2) of the
Dangerous Drugs Act, 2000; |
(e) an offence
relating to dangerous drugs under section 115 or 116(e) of the Customs Management Act; |
(f) an
offence under section 40, 41 or 42 of this Act (money laundering) which relates
to the proceeds of drug trafficking; |
(g) aiding
abetting, counselling or procuring the commission of any of the offences in
paragraph (a) to (e); |
(h) an offence
under section 29(5) or 30 of the Dangerous Drugs Act, 2000 or attempting, soliciting, inciting or
conspiring, to commit any of the offences in paragraphs (a) to (e); |
"proceeds of
criminal conduct", in relation to a person who has benefited from criminal
conduct, means that benefit and includes a reference to any property which in
whole or in part directly or indirectly represents the proceeds of criminal conduct; |
"relevant
offence" means an offence described in the Schedule. |
4. (1) In this Act- | Meaning of property, realisable property, etc. |
"property"
means money and all other property, movable or immovable, including things in
action and other intangible or incorporeal property; and |
"interest",
in relation to property, includes a right. |
(2) For the
purposes of this Act- |
(a) property is
held by any person if he holds any interest in it; |
(b) references
to property held by a person include a reference to property vested in his
trustee in bankruptcy or liquidator; |
(c) references
to a beneficial interest held in property by a person includes a reference to
any beneficial interest which would have been held by him if the property were
not vested in a liquidator or in trustee in bankruptcy; and |
(d) property is
transferred by one person to another if the first person transfers or grants to
the other any interest in the property. |
(3) In this Act,
"realisable property" means- |
(a) any property
held by the defendant (other than property in respect of which there is in
force a forfeiture order under section 33 of the Dangerous Drugs Act, 2000 or an order
under section 262 of the Criminal Procedure Code Act); and |
(b) any property
held by a person to whom the defendant has, directly or indirectly made a gift
caught by this Act. |
(4) For the
purposes of this Act, the amount that might be realised at the time a
confiscation order is made against the defendant shall be- |
(a) the total
value of all the realisable property held by the defendant less the total
amount payable in pursuance of any obligation having priority to the
confiscation order; and |
(b) the total
value of all gifts caught by this Act. |
(5) For the
purposes of subsection (4), an obligation has priority if it is an obligation
of the defendant- |
(a) to pay an
amount due in respect of a fine, or other order of a court, imposed or made on
conviction of an offence, where the fine was imposed or order made before the
confiscation order; or |
(b) to pay any
sum which would be included among the preferential debts in the defendant's
bankruptcy commencing on the date of the confiscation order or winding up under
an order of the court made on that date. |
(6) For the
purposes of subsection (5)(b), "preferential debts"- |
(a) in relation
to bankruptcy, means the debts to be paid in priority under section 30 of the Bankruptcy Act (assuming the date of the
confiscation order to be the date of the receiving order); and |
(b) in relation
to winding up, means the debts to be paid in priority in accordance with
section 257 of the Companies Act
and section 161 of the
International Business Companies Act (assuming the date of the confiscation
order to be the date of the winding up). |
5. (1) Subject to the following subsections and section
6, for the purposes of this Act, the value of property (other than cash) in
relation to any person holding the property shall be its market value, except
that where any other person holds an interest in the property, the value shall
be the market value of the first-mentioned person's beneficial interest in the
property, less the amount required to discharge any incumbrance (other than a
charging order) on that interest. | Value of property. |
(2) Subject to
section 6(3), references in this Act to the value at any time (referred to in
subsection (3) as the "material time") of a gift caught by this Act
are references to- |
(a) the value
of the gift to the recipient when he received it adjusted to take account of
subsequent changes in the value of money; or |
(b) where
subsection (3) applies, the value mentioned therein, |
whichever is
the greater. |
(3) Subject to
section 6(3), if at the material time the recipient holds- |
(a) the
property which he received (not being cash); or |
(b) property
which, in whole or in part, directly or indirectly represents in his hands the
property which he received, |
the value
referred to in subsection (2)(b) shall be the value to him at the material time
of the property mentioned in paragraph (a) or as the case may be , of the
property mentioned in paragraph (b) so far as it so represents the property
which he received, but disregarding in either case any charging order. |
6. (1) In relation to a drug trafficking offence, a gift
derived from drug trafficking (including a gift made before the commencement of
this Act) is caught by this Act if- | Gift caught by this Act. |
(a) it was made
by the defendant at any time since the beginning of the period of six years
ending- |
(i) when
the proceedings for the drug trafficking offence were instituted against him;
or |
(ii) where
no such proceedings have been instituted, when an application for a restraint
order or a charging order is made under section 26 or 27; or |
(b) it was made
by the defendant at any time and was a gift of property- |
(i) received
by the defendant in connection with drug trafficking carried on by him or
another person; or |
(ii) which
in whole or in part directly or indirectly represented in the defendant's hands
property received by him in that connection. |
(2) In relation to
a relevant offence a gift derived from the commission of a relevant offence
(including a gift made before the commencement of this Act) is caught by this
Act if it was made by the defendant at any time since the commission of the
relevant offence, or, if more than one, the earliest of the offences to which
the proceedings relate (including any offence which the court takes into
consideration in determining his sentence). |
(3) For the
purposes of this Act- |
(a) the
circumstances in which the defendant is to be treated as making a gift include
those where he transfers property to another person directly or indirectly, for
a consideration which is significantly less than the value of the property; and |
(b) in those
circumstances, this section and section 5 shall apply as if the defendant had
made a gift of such share in the property as bears to the whole property same
proportion as the difference between the values referred to in paragraph (a)
bears to the value of the property. |
7. In this Act- | Other definitions. |
"Central
Bank" means the Central Bank of The Bahamas established under section 3 of
the
Central Bank of The Bahamas Act; |
"confiscation
order" means an order made under section 9 or 10 (including such an order
made by virtue of section 16 or 21); |
"Confiscated
Assets Fund" means the Fund established under section 52; |
"corresponding
law" means- |
(a) in relation
to proceedings under the Dangerous Drugs Act, 2000 has the meaning given in that Act; and |
(b) in any
other case, means a law which corresponds with a provision of Bahamian law
which creates a relevant offence; |
"the
court" means unless the context otherwise requires the Supreme Court; |
"defendant"
means a person against whom proceedings have been instituted for an offence
(whether or not he has been convicted); |
"items
subject to legal privilege" means- |
(a) communications
between a counsel and attorney and his client made in connection with the
giving of legal advice to the client, and |
(b) communications
between a counsel and attorney and his client or between such counsel and
attorney and any other person made in connection with or in contemplation of
legal proceedings and for the purpose of such proceedings, |
when they
are in the possession of a person who is entitled to possession of them; but
items held resulting from criminal conduct or with the intention of furthering
a criminal purpose are not items subject to legal privilege: |
Provided that the
legal privilege shall not extend to information regarding the identity and
address of the client or principal; |
"material"
includes any book, document or other record in any form whatsoever, and any
container or article relating thereto; |
"money
laundering" means doing any act- |
(a) which
constitutes an offence under section 40, 41 or 42; or |
(b) which would
constitute such an offence if done in The Bahamas, |
and for
these purposes, having possession of any property shall be taken to be doing an
act in relation to it; |
"premises"
includes any place and in particular includes- |
(a) any
building, vehicle, vessel, aircraft, or offshore structure; and |
(b) any tent or
movable structure; |
"prescribe"
means prescribe by regulations made under section 61. |
8. (1) For the purposes of this Act- | Institution and conclusion of proceedings. |
(a) proceedings
for an offence are instituted in The Bahamas when a complaint has been made or
a formal charge has been laid before a Magistrate in accordance with section 54
of the Criminal Procedure Code Act; |
(b) proceedings
in The Bahamas for an offence are concluded on the occurrence of one of the
following events- |
(i) the
conviction of the defendant; |
(ii) the
discontinuance of the proceedings; |
(iii) the
acquittal of the defendant; |
(iv) the
quashing of the defendant's conviction for the offence; |
(v) the
satisfaction of a confiscation order made in the proceedings; |
(c) an
application under section 16, 17, 19 or 21 is concluded- |
(i) if
the court decides not to make or vary (as the case may be) a confiscation order
against the defendant, when it makes that decision; or |
(ii) if
a confiscation order is made or varied as a result of that application, when
the order is satisfied; |
(d) a
confiscation order is satisfied when no amount is due under it. |
(2) For the
purposes of this Act an order is subject to appeal until an appeal is heard and
determined or (disregarding any power of a court to grant leave to appeal out
of time) the period of time fixed by law for such appeal has expired without an
appeal having been lodged. |
PART II
CONFISCATION ORDERS |
Confiscation
orders |
9. (1) Upon conviction for one or more drug trafficking
offences committed after the coming into operation of this Act, a person shall,
in addition to any penalty prescribed by any law for that offence, be liable at
the time of sentencing in respect of that conviction to have a confiscation
order made against him relating to the proceeds of drug trafficking including
any property representing such proceeds and all gifts made under section 6(1). | Confiscation orders, drug trafficking. |
(2) The court
shall first determine whether the defendant has benefited from drug
trafficking. |
(3) For the
purposes of this Act, a person has benefited from drug trafficking if he has at
any time- |
(a) since the
date of commencement of this Act; or |
(b) since the
beginning of the period of six years ending when proceedings were instituted
against him, |
received any
payment or other reward in connection with drug trafficking carried on by him
or another person. |
(4) If the court
determines that he has so benefited, it shall in addition to sentencing or
otherwise dealing with him in respect of the offence or (as the case may be)
any of the offences concerned, make a confiscation order and determine the
amount to be recovered in his case under the order. |
(5) The court
shall then, in respect of the offence or offences concerned- |
(a) order the
defendant to pay the amount of the confiscation order within such period as it
may specify; and |
(b) make a
forfeiture order under section 33 of the Dangerous Drugs Act, 2000. |
(6) For the
purposes of this section "court" means the court before which the
defendant was convicted. |
10. (1) Upon conviction for one or more relevant
offences committed after the coming into operation of this Act, a person shall,
in addition to any penalty prescribed by any law for that offence be liable at
the time of sentencing in respect of that conviction or at any time thereafter
to have a confiscation order made against him relating to property obtained
from the commission of such relevant offence and all gifts made under
subsection 6(1). | Confiscation orders, relevant offences. |
(2) Before making
a confiscation order the court shall first determine whether the defendant has
benefited from- |
(a) the offence
or offences for which he is to be sentenced ("the principal
offences"); and |
(b) any
relevant offences which the court will be taking into consideration in
determining his sentence for the principal offence. |
(3) For the
purposes of this Act- |
(a) a person
benefits from a relevant offence if he obtains property as a result of or in
connection with its commission and his benefit is the value of any property so
obtained; and |
(b) if he
derives a pecuniary advantage as a result of or in connection with its
commission and his benefit is the amount of or the value of the pecuniary
advantage of an offence, he is to be treated as if he had obtained instead a
sum of money equal to the value of the pecuniary advantage. |
(4) If the court
determines that the defendant has benefited from the offences mentioned in
subsection (2), it shall make a confiscation order and determine the amount to
be recovered under the order. |
(5) The court
shall- |
(a) order the
defendant to pay the amount of the confiscation order within such period as it
may specify; and |
(b) order to be
forfeited to the Crown any money, aircraft or vessel or other thing including
premises which has been used in the commission of or in connection with an
offence under this Act and any money or other property received or possessed by
any person as a result of an offence under this Act. |
(6) For the
purposes of this section "court" means the court before which the
defendant was convicted. |
11. (1) For the purposes of this Act- | Assessing proceeds of drug trafficking. |
(a) any
payments or other rewards received by a person at any time- |
(i) since
the date of commencement of this Act; or |
(ii) since
the beginning of the period of six years, ending when proceedings were
instituted against him, |
in
connection with drug trafficking carried on by him or another person are his
proceeds of drug trafficking; and |
(b) the value
of his proceeds of drug trafficking is the aggregate of the value of the
payments or other rewards. |
(2) Subject to
subsections (4) and (5), the court shall make the required assumptions for the
purpose- |
(a) of
determining whether the defendant has benefited from drug trafficking; and |
(b) if he has, of
determining the value of his proceeds of drug trafficking. |
(3) The required
assumptions are- |
(a) that any
property shown to the court- |
(i) to
have been held by the defendant; or |
(ii) to
have been transferred to him at any time since the beginning of the period of
six years ending when the proceeding was instituted against him, |
was received by him as a payment or reward in connection with drug
trafficking carried on by him; |
(b) that any
expenditure of his since the beginning of that period was met out of payments
received by him in connection with drug trafficking carried on by him; |
(c) that, for
the purpose of valuing any property received or assumed to have been received
by him at any time as such a reward, he received the property free of other
interests in it. |
(4) The court
shall not make any of the required assumptions in relation to any particular
property or expenditure if that assumption is shown to be incorrect in the
defendant's case and where the court by virtue of this subsection does not make
one of the required assumptions it shall state its reasons in writing. |
(5) Subsection (2)
does not apply if the only offence in respect of which the defendant appears
before the court for sentencing is an offence under section 40, 41 or 42
relating to the proceeds of drug trafficking. |
(6) For the
purpose of assessing the value of the proceeds derived by the defendant from
drug trafficking in a case where a confiscation order has previously been made
against him (under this Act) the court shall leave out of account any such
proceeds that are shown to the court to have been taken into account in
determining the amount to be recovered under the previous order. |
(7) For the
purposes of this Act, a person has benefited from drug trafficking if he has at
any time- |
(a) since the
date of commencement of this Act; or |
(b) since the
beginning of the period of six years ending when proceedings were instituted
against him, |
received any
payment or other reward in connection with drug trafficking carried on by him
or another person. |
(8) For the
purposes of this section "court" means the court before which the
defendant was convicted. |
12. (1) Where the court proceeds under section 9 or 10
the Police or the Attorney-General shall give the court a statement (a
"prosecutor's statement") of matters which he considers relevant in
connection with assessing the value of the defendant's proceeds of drug
trafficking or the benefit from any relevant offence. | Statements. |
(2) Where any
prosecutor's statement has been given the court may require the defendant,
within such period as it may direct- |
(a) to indicate
the extent to which he accepts the allegations in the statement; and |
(b) so far as
he does not accept any such allegation, to give particulars of any matters on
which he proposes to rely, |
and the
court may for the purposes of the determination and assessment mentioned in
subsection (1) treat any acceptance by the defendant as conclusive of the
matters to which it relates. |
(3) To the extent
that the defendant fails in any respect to comply with a requirement under
subsection (2), he may be treated for the purposes of this section as accepting
every allegation in the statement. |
(4) Where- |
(a) there is
tendered to the court by the defendant a statement as to any matters relevant
to determining the amount that might be realised at the time the confiscation
order is made; and |
(b) the Police
or the Attorney-General accepts to any extent any allegation in the statement, |
the court
may, for the purposes of that determination, treat that as conclusive of the
matters to which it relates. |
(5) An allegation
may be accepted or a matter indicated for the purposes of this section either
orally before the court or in writing. |
(6) No acceptance
by the defendant under this section that proceeds have been derived by him from
drug trafficking or from any relevant offence shall be admissible in evidence
in any other proceedings for an offence. |
(7) For the
purposes of this Act, a person has benefited from drug trafficking if he has at
any time- |
(a) since the
date of commencement of this Act; or |
(b) since the
beginning of the period of six years ending when proceedings were instituted
against him, |
received any
payment or other reward in connection with drug trafficking carried on by him
or another person. |
(8) For the
purposes of this section "court" means the court before which the
defendant was convicted. |
13. A court may- | Avoidance of contracts. |
(a) prior to
making a confiscation order under sections 9 and 10; and |
(b) in the case
of property in respect of which a restraint order was made under section 26 and
served on persons affected by the order in accordance with section 26(4), |
set aside
any conveyance or transfer of the property that occurred after the seizure of
the property or the service of notice of the order on persons affected by the
order under section 26(4), unless the conveyance or transfer was for valuable
consideration to a person acting in good faith and without notice. |
14. (1) For the purpose of obtaining information to
assist it in carrying out its functions in relation to making a confiscation
order, the court may order the defendant to give it such information in such
manner and before such date as may be specified in the order. | Provision of information by defendant. |
(2) If the
defendant fails to comply with any order under this section, the court may draw
such inference from that failure as it considers appropriate. |
(3) Where the
Police or the Attorney-General accepts to any extent any allegation made by the
defendant in giving to the court information required under this section the
court may treat that acceptance as conclusive of the matters to which it
relates. |
(4) For the
purposes of this section "court" means the court before which the
defendant was convicted. |
Subsequent
Proceedings |
15. (1) Where an application is made for a confiscation
order, a person who asserts an interest in any property subject to that order
may apply to the court before the confiscation order is made, for an order
under subsection (2). | Protection of third party rights. |
(2) If a person
applies to the court for an order under this subsection in respect of his
interest in realisable property and the court is satisfied- |
(a) that he was
not in any way involved in the defendant's criminal conduct; and |
(b) that he
acquired the interest- |
(i) for
sufficient consideration; and |
(ii) without
knowing, and in circumstances such as not to arouse a reasonable suspicion,
that the property was, at the time he acquired it, property that was involved
in or was the proceeds of criminal conduct, |
the court
shall make an order declaring the nature, extent and value (as at the time the
order is made) of his interest. |
(3) Subject to
subsection (4), where a confiscation order has already been made, a person who
asserts an interest in the property may apply under this subsection to the
court for an order under subsection (2). |
(4) Except with
the leave of the court, an application shall not be made under subsection (3)- |
|
(i) who
had knowledge of the application for a confiscation order before the order was
made; or |
(ii) who
appeared at the hearing of that application; or |
(b) later than
28 days beginning with the day on which the confiscation order was made. |
(5) A person who
makes an application under subsection (1) or (3) shall give not less than seven
days' written notice of the making of the application to the Attorney-General
who shall be a party to any proceedings on the application. |
(6) For the
purposes of this section "court" means the court before which the
defendant was convicted. |
16. (1) This section applies where a defendant has
appeared before a court to be sentenced in respect of one or more drug
trafficking or relevant offences but the court has not made a confiscation
order under section 9 or 10. | Reconsideration of case. |
(2) If the
Attorney-General has evidence which was not previously available but which he
believes would have led the court to determine that the defendant had benefited
from drug trafficking or from any relevant offence he may make an application
to the court. |
(3) On such an
application the court shall consider the evidence and if satisfied that the
defendant had so benefited, the court shall make a confiscation order and order
the payment of such as it thinks just in all the circumstances of the case,
including in particular the amount of any fine or other orders for payment
imposed on the defendant in respect of the offence or offences in question. |
(4) For the purposes
of this section "court" means the court before which the defendant
was convicted. |
17. (1) This section applies where the court has made a
determination of the amount to be recovered under a confiscation order
("the current determination"). | Revised assessment of proceeds of criminal conduct. |
(2) Where the
Attorney-General is of the opinion that the real value of the defendant's
proceeds of drug trafficking or benefit from any relevant offence was greater
than their assessed value, he may apply to the court for the evidence on which
he has formed his opinion to be considered by the court. |
(3) If, having
considered the evidence, the court is satisfied that the real value of the
defendants proceeds of drug trafficking or benefit from any relevant offences
is greater than their assessed value (whether because the real value at the
time of the current determination was higher than was thought or because the
value of the proceeds or benefit in question has subsequently increased), the
court shall make a fresh determination of the amount to be recovered under a
confiscation order. |
(4) In subsections
(2) and (3)- |
"assessed
value" means the value of the defendant's proceeds of drug trafficking or
benefit from any relevant offence as assessed by the court; and |
"real
value" means- |
(a) the value
of the defendant's proceeds of drug trafficking which took place in the period
by reference to which the current determination was made or in any earlier
period; or |
(b) the value
of his benefit from any of the relevant offences mentioned in section 10(2). |
(5) Any
determination by virtue of this section shall be by reference to the amount
that might be realised at the time when the determination is made. |
(6) For the
avoidance of doubt, section 11(6) shall not apply in relation to any of the
defendant's proceeds of drug trafficking taken into account in respect of the
current determination. |
(7) If, as a
result of making the fresh determination required by subsection (3), the amount
to be recovered exceeds the amount set by the current determination, the court
may substitute for the amount to be recovered under the confiscation order such
greater amount as it thinks just in all the circumstances of the case. |
(8) Where the
court varies a confiscation order by virtue of this section it shall substitute
for the term of imprisonment in default fixed under section 23(1) in respect of
the amount to be recovered under the order such longer term as may be
determined in accordance with that section in respect of the greater amount to
be recovered under the order as varied. |
(9) For the
purposes of this section "court" means the court before which the
defendant was convicted. |
18. (1) On an application under section 16 or 17, the
court may take into account any payment or other reward received by the
defendant or any property obtained by the defendant on or after the date- | Reconsideration, etc., supplementary. |
|
(b) of the
subsection (2) determination (in the case of an application under section 16); |
(c) of the
current determination (in the case of an application under section 17), |
but only if
the Attorney-General shows that it was by the defendant in connection with drug
trafficking carried on or with any relevant offence committed, on or before
that date. |
(2) In considering
any evidence which relates to any payment or reward in relation to drug
trafficking to which subsection (1) applies, the court shall not make the
assumptions which would otherwise be required by section 11. |
(3) No application
shall be entertained by the court under section 16 or 17 if it is made after
the end of the period of six years beginning with the date on which the
defendant was convicted, or where the application relates to more than one
conviction, the date of the latest conviction. |
(4) Sections 12
and 14 apply, with such modifications as may be necessary, in relation to
applications under sections 16 and 17 as they apply in relation to proceedings
under sections 9 and 10. |
19. (1) This section applies where, the amount which a
person is ordered to pay under a confiscation order is less than the amount
assessed to be his proceeds of drug trafficking or benefit from relevant
offences (as the case may be). | Increase in realisable property. |
(2) If on an
application made- |
(a) by the
Police or the Attorney-General; or |
(b) by a
receiver appointed under section 26 or 29 in relation to the realisable
property of the person in question, |
the court is
satisfied that the amount that might be realised in the case of the person in
question is greater than the amount taken into account in making the confiscation
order (whether it was greater than was thought when the order was made or has
subsequently increased), the court shall issue a certificate to that effect
giving its reasons. |
(3) Where a
certificate has been issued the Attorney-General may apply to the court for an
increase in the amount to be recovered under the confiscation order; and on
that application the court may- |
(a) substitute
for that amount such amount not exceeding the amount assessed as the value
referred to in subsection (1) as appears to the court to be appropriate having
regard to the amount now shown to be realisable; and |
(b) increase
the term of imprisonment fixed in respect of the confiscation order under
section 23(1) if the effect of the substitution is to increase the maximum
period applicable in relation to the order under that section. |
20. (1) If, on an application made in respect of a
confiscation order- | Inadequacy of realisable property. |
|
(b) by a
receiver appointed under section 26 or 29, |
the court is
satisfied that the realisable property is inadequate for the payment of any
amount remaining to be recovered under the order, the court shall issue a certificate
to that effect, giving its reasons. |
(2) For the
purposes of subsection (1)- |
(a) in the case
of realisable property held by a person who has been adjudged bankrupt, the
court shall take into account the extent to which any property held by him may be
distributed among creditors; and |
(b) the court
may disregard any inadequacy in the realisable property which appears to the
court to be attributable wholly or partly, to anything done by the defendant
for the purpose of preserving any property held by a person to whom the
defendant had, directly or indirectly, made a gift caught by this Act from any
risk of realisation under this Act. |
(3) Where a
certificate has been issued under subsection (1), the person who applied for it
may apply to the court which made the confiscation order for the amount to be
recovered under the order to be reduced. |
(4) The court
shall, on an application under subsection (3)- |
(a) substitute
for the amount to be recovered under the order such lesser amount as the court
thinks just in all the circumstances of the case; and |
(b) substitute
for the term of imprisonment in default fixed under section 23(1) in respect of
the amount to be recovered under the order a shorter term if such is determined
in accordance with that section in respect of the lesser amount to be recovered
under the order as varied. |
(5) Any person
appearing to the court to be likely to be affected by any exercise of its
powers under this section shall be entitled to appear before the court and make
representations. |
Absconded
Persons, etc. |
21. (1) Where a person has been convicted of one or
more drug trafficking or relevant offences, on the application of the
Attorney-General the court may make a confiscation order against him if
satisfied that he has absconded or died. | Confiscation order where defendant has absconded or
died. |
(2) Where
proceedings for one or more drug trafficking or relevant offences have been
instituted but not concluded, on the application of the Attorney-General the court
may make a confiscation order against the defendant if satisfied that he has
absconded, but shall not do so until after the period of six months beginning
with the date which is, in the opinion of the court, the date on which the
defendant absconded. |
(3) In any
proceedings under this section- |
(a) section
11(2) shall not apply; |
(b) section 12
shall apply with the omission of subsections (2) to (6): |
(c) the court
shall not make a confiscation order against a defendant unless it is satisfied
that the Attorney-General has taken reasonable steps to contact him; and |
(d) any person
appearing to the court to be likely to be affected by the making of a
confiscation order shall be entitled to appear before the court and make
representations. |
(4) Where an application
has been made to the court under this section in relation to a defendant who
has absconded and the court has decided not to make a confiscation order
against him, section 16 shall not apply at any time while he remains an
absconder. |
22. (1) Where a confiscation order is made by virtue of
section 21(2) and the defendant ceases to be an absconder, he may apply to the
court for a variation of the amount to be recovered under the order. | Variation of order made against absconder. |
(2) If on such an
application the court is satisfied that the value of the defendant's proceeds
of drug trafficking in the period by reference to which the determination in
question was made, or the value of his benefit from relevant offences, or the amount
that might have been realised at the time the order was made, was less than the
amount ordered to be paid under the confiscation order, the court- |
(a) may if it
considers it just in all the circumstances reduce the amount to be recovered
under the confiscation order; and |
(b) if it does
so, shall reduce the term of imprisonment in default in accordance with section
23(1). |
(3) Where the
court reduces the amount to be recovered under a confiscation order it may, on
the application of a person who held property which was realisable property,
order compensation to be paid to him if satisfied that he has suffered loss as
a result of the making of the confiscation order and if, having regard to all
the circumstances of the case, it considers it appropriate to do so. |
(4) No application
shall be entertained by the court if it is made after the end of six months
beginning on the day on which the confiscation order was made. |
PART III
ENFORCEMENT OF CONFISCATION ORDERS |
Default Powers |
23. (1) Notwithstanding section 223 of the
Criminal Procedure Code Act where the court orders the defendant to pay an
amount under a confiscation order it shall in addition direct him to be
imprisoned in default of payment of any amount under the confiscation order as
follows- | Imprisonment in default. |
(a) if the
amount does not exceed $20,000 for a term not exceeding 2 years; |
(b) if the
amount exceeds $20,000 but does not exceed $50,000, for a term not exceeding 3
years; |
(c) if the
amount exceeds $50,000 but does not exceed $100,000, for a term not exceeding 4
years: and |
(d) if the
amount exceeds $100,000, for a term not exceeding 5 years. |
(2) Where- |
(a) a warrant
to commit the defendant to prison is issued for a default in payment of an amount
ordered to be paid under a confiscation order in respect of an offence or
offences; and |
(b) at the time
the warrant is issued the defendant is liable to serve any term of imprisonment
in respect of the offence or offences, |
the term of
imprisonment to be served, in default of payment of the amount shall not begin
to run until after the term mentioned in paragraph (b). |
(3) Where a
defendant serves a term of imprisonment in default of paying any amount due
under a confiscation order, his serving that term does not prevent the
confiscation order from continuing to have effect, so far as any other method
of enforcement is concerned. |
(4) For the
purposes of this section "court" means the court before which the
defendant was convicted. |
24. (1) If any sum required to be paid by a person
under a confiscation order is not paid when it is required to be paid, that
person shall be liable to pay interest on that sum for the period for which it
remains unpaid; and the amount of interest shall for the purposes of
enforcement, be treated as part of the amount to be recovered from him under
the confiscation order. | Interest on unpaid sums. |
(2) The court may,
on the application of the Attorney-General, increase the term of imprisonment
fixed in respect of the confiscation order if the effect of subsection (1) is
to increase the maximum period applicable in relation to the order under
section 23(1). |
(3) The rate of
interest under subsection (1) shall be that for the time being applying to a
judgment debt. |
(4) For the
purposes of this section "court" means the court before which the
defendant was convicted. |
Restraint and
Charging Orders |
25. (1) The powers conferred on the court by section 26
to make a restraint order and by section 27 to make a charging order are
exercisable where- | Cases in which restraint and charging orders may be
made. |
(a) proceedings
have been instituted against the defendant for a drug trafficking or relevant
offence or an application has been made in respect of the defendant under
section 16, 17, 19 or 21; |
(b) the
proceedings have not, or the , application has not been concluded; |
(c) the court
is satisfied that there is reasonable cause to believe- |
(i) in
the case of an application under section 17 or 19 of this Act, that the court
will be satisfied as mentioned in section 17(3) or 19(2); or |
(ii) in
any other case, that the defendant has benefited from drug trafficking or from
any relevant offence (as the case may be). |
(2) The court
shall not exercise the powers referred to in subsection (1) if it is not
intended to proceed with the prosecution. |
(3) The court may
also exercise the powers referred to in subsection (1) where- |
(a) a person is
to be charged with a drug trafficking or relevant offence or an application as
mentioned in subsection (1)(a,) is to be made; and |
(b) the court
is satisfied as mentioned in subsection (1)(c). |
(4) For the
purposes of sections 26 and 27, at any time when those powers are exercisable
before proceedings have been instituted- |
(a) references
in this Act to the defendant shall be constructed as references to the person
referred to in subsection (3)(a); and |
(b) references
in this Act to realisable property shall be construed as if, immediately before
that time, proceedings had been instituted against the person referred to in
subsection (2) for a drug trafficking or relevant offence. |
(5) Where the
court has made a restraint or charging order by virtue of subsection (3), the
court shall discharge the order if proceedings in respect of the offence are
not instituted, or if the application is not made, within such time as the
court considers reasonable. |
26. (1) The court may make a restraint order to
prohibit any person from dealing with any realisable property, subject to such
conditions and exceptions as may be specified in the order. | Restraint orders. |
(2) A restraint
order may apply- |
(a) to all
realisable property held by a specified person, whether the property is
described in the order or not; and |
(b) to
realisable property held by a specified person, being property transferred to
him after the making of the order. |
(3) This section
shall not have effect in relation to any property for the time being subject to
a charge under section 27 of this Act. |
(4) An application
for a restraint order- |
(a) shall be
made by the Police or the Attorney-General; |
(b) shall be
made on an ex-parte application to a Judge in chambers; and |
(c) shall
provide for notice of the order to be served on persons affected by the order. |
(5) A restraint
order- |
(a) may, on the
application of any person affected by the order be discharged or varied in
relation to any property; and |
(b) shall be
discharged when proceedings for the offence are concluded. |
(6) Where the
court has made a restraint order, the court- |
(a) may at any
time appoint a receiver- |
(i) to
take possession of any realisable property; and |
(ii) in
accordance with the directions of the court, to manage or otherwise deal with
any property in respect of which he is appointed, |
subject to
such exceptions and conditions as may be specified by the court; and |
(b) may require
any person having possession of property in respect of which the receiver is
appointed under this section to give possession of it to the receiver. |
(7) For the
purposes of this section, dealing with property held by any other person
includes (without prejudice to the generality of the expression) |
(a) where a
debt is owed to that person, making a payment to any person in reduction of the
amount of the debt; and |
(b) removing
the property from The Bahamas. |
(8) Where the
court has made a restraint order, a police officer may seize any realisable
property for the purpose of preventing its removal from The Bahamas; and
property so seized shall be dealt with in accordance with the directions of the
court. |
27. (1) For the purposes of this Act, a charging order
is an order made under this section imposing on any such realisable property as
may be specified in the order a charge for securing the payment of money to the
Crown. | Charging orders. |
(2) The court may
make a charging order- |
(a) where a
confiscation order has been made of an amount not exceeding the amount payable
under the confiscation order; and |
(b) where a
confiscation order has not been made, of an amount equal to the value from time
to time of the property charged. |
(3) A charging
order- |
(a) shall only
be made an application by the Police or the Attorney-General; and |
(b) shall be
made on an ex-parte application to a Judge in chambers. |
(4) Subject to
subsection (6), a charge may be imposed by a charging order only on- |
(a) any
interest in realisable property, which is an interest held beneficially by the
defendant or by a person to whom the defendant has directly or indirectly made
a gift caught by this Act- |
(i) in
any chargeable asset; or |
|
(b) any
interest in realisable property held by a person as trustee of a trust if the
interest is in a chargeable asset or is an interest under another trust and a
charge may, by virtue of paragraph (a), be imposed by a charging order on the
whole beneficial interest under the first-mentioned trust. |
(5) In this
section- |
(a) "chargeable
asset" means any of the following situated in The Bahamas or outside The
Bahamas- |
|
(ii) any
relevant securities; |
|
|
|
(vi) any
monies held by or deposited with a bank or other financial institution; |
(vii) any
other type of asset which the Minister of Finance may prescribe for the
purposes of this section; and |
(b) "relevant
securities" means any of the following- |
(i) securities
of any government or of any public authority; |
(ii) stock
of any body corporate; |
(iii) stock
of any body incorporated outside The Bahamas or of any country outside The
Bahamas; |
(iv) options
in relation to stock described in subparagraph (ii) or (iii); |
|
(vi) shares
in any mutual fund. |
(6) In any case
where a charge is imposed by a charging order on any interest in any relevant
security, the court may provide for the charge to extend to any interest or
dividend payable in respect of them. |
(7) Where the
court has made a charging order, the court may give such directions to such
person as the court thinks fit to safeguard the assets under the charging
order. |
(8) The court- |
(a) may, on the
application of any person affected by the charging order, make an order
discharging or varying it; and |
(b) shall make
an order discharging the charging order if the proceedings for the offence are
concluded or on payment into court of the amount which is secured by the
charge. |
28. (1) A charging order may be made either absolutely
or subject to conditions including in particular conditions- | Charging orders, supplementary. |
(a) as to
notifying any person holding any interest in the property to which the order
relates; or |
(b) as to the
time when the charge is to become enforceable. |
(2)
Notice of any confiscation or charging order made under the provisions of this
Act or of any forfeiture order made under the provisions of the
Dangerous Drugs Act, 2000 shall be deposited in the office of the Registrar
General for recording and registration in accordance with section 3 of the
Registration of Records Act. |
(3) Subject to any
provision made under section 29, a charge imposed by a charging order shall
have the like effect and shall be enforceable in the same manner as an
equitable charge created by the person holding the beneficial interest or, as
the case may be, the trustees by writing under their hand. |
Realisation of
Property |
29. (1) The court may, on an application by the
Attorney-General, exercise the powers conferred by this section, where a
confiscation order has been made and it is neither satisfied nor subject to
appeal. | Realisation of property. |
(2) The court may
appoint a receiver in respect of realisable property. |
(3) The court may
empower the receiver appointed under this section or section 26 or in pursuance
of a charging order- |
(a) to enforce
any charge imposed under section 27 on realisable property or on interest or
dividends payable in respect of such property; and |
(b) in relation
to any realisable property other than property for the time being subject to a
charge under section 27, to take possession of the property subject to such
conditions or exceptions as may be specified by the court. |
(4) The court may
order any person having possession of realisable property to give possession of
it to the receiver. |
(5) The court may
empower the receiver to realise any realisable property in such manner as the
court may direct. |
(6) The court- |
(a) may order
any person holding an interest in realisable property to make such payment to
the receiver in respect of any beneficial interest held by the defendant or, as
the case may be, the recipient of a gift caught by this Act as the court may
direct; and |
(b) may, on the
payment being made, by order transfer, grant or extinguish any interest in the
property. |
(7) Subsections
(4) to (6) shall not apply to property for the time being subject to a charge
under section 27 of this Act. |
(8) The court
shall not in respect of any property exercise the powers conferred by
subsection (3)(a), (5) or (6) unless a reasonable opportunity has been given
for persons holding any interest in the property to make representations to the
court. |
(9) Where any
property is of a perishable or depreciable nature the court may direct that
such property be sold forthwith, either by public auction or by private treaty
and that the proceeds of the sale be retained in a bank account until such time
has the matter has been dealt with. |
30. (1) The following sums in the hands of the receiver
pursuant to section 26 or 29 or in pursuance of a charging order- | Application of proceeds of realisation, etc. |
(a) the
proceeds of the enforcement of any charge imposed under section 27; |
(b) the
proceeds of the realisation, other than by the enforcement of such a charge, of
any property under section 26 or 29; and |
(c) any other
sums being property held by the defendant, |
shall, after
such payments (if any) as the court may direct have been made out of those
sums, be applied on the defendant's behalf towards the satisfaction of the
confiscation order. |
(2) If, after the
amount payable under the confiscation order has been fully paid, any such sums
remain in the hands of the receiver, he shall distribute those sums- |
(a) among such
of those who held property which has been realised under this Act; and |
|
as the court
may direct after giving a reasonable opportunity for such persons to make
representations to the court. |
31. (1) This section shall apply to the powers
conferred on the court by sections 26 to 30 or on the receiver pursuant to
section 26 or 29 or in pursuance of a charging order. | Exercise of powers for the realisation of property. |
(2) Subject to
subsections (3) to (6), the powers shall be exercised with a view to making
available for satisfying the confiscation order or (as the case may be) any
confiscation order that may be made in the defendant's case, the value for the
time being of realisable property held by any person by the realisation of such
property. |
(3) In the case of
realisable property held by a person to whom the defendant has, directly or
indirectly, made a gift caught by this Act, the powers shall be exercised with
a view to realising no more than the value for the time being of the gift. |
(4) The powers
shall be exercised with a view to allowing any person other than the defendant
or the recipient of any such gift to retain or recover the value of any
property held by him. |
(5) In exercising
those powers, no account shall be taken of any obligations of the defendant or
of the recipient of any such gift which conflict with the obligation to satisfy
the confiscation order. |
32. (1) Where a receiver appointed under section 26 or
29 or in pursuance of a charging order- | Receivers supplementary. |
(a) takes any
action in relation to property which is not realisable property, being action
which he would be entitled to take if it were such property; and |
(b) believes
and has reasonable grounds for believing, that he is entitled to take that
action in relation to that property, |
he shall not
be liable to any person in respect of any loss or damage resulting from his
action, except in so far as the loss or damage is caused by his negligence. |
(2) Any amount due
in respect of the remuneration and expenses of a receiver so appointed shall be
paid out of the Consolidated Fund or the Confiscated Assets Fund. |
Insolvency |
33. (1) Where a person who holds realisable property is
adjudged bankrupt- | Bankruptcy of defendant. |
(a) property
for the time being subject to a restraint order made before the order adjudging
him bankrupt; and |
(b) any
proceeds of property realised by virtue of section 26(6) or 29(5) or (6) for
the time being in the hands of a receiver appointed under section 26 or 29, |
shall be
excluded from the bankrupt's estate for the purposes of the
Bankruptcy Act. |
(2) Where a person
has been adjudged bankrupt, the powers conferred on the court by sections 26 to
30 or on a receiver shall not be exercised in relation to property for the time
being comprised in the property of the bankrupt for the purposes of the
Bankruptcy Act. |
(3) Nothing in the
Bankruptcy Act shall be taken as restricting, or enabling the restriction of,
the exercise of those powers referred to in subsection (2). |
(4) Subsection (2)
shall not affect the enforcement of a charging order- |
(a) made before
the order adjudging the person bankrupt; or |
(b) on property
which was subject to a restraint order when the order adjudging him bankrupt
was made. |
(5) Where, in the
case of a debtor, the receiver constituted by virtue of section 11 of the
Bankruptcy Act or an interim receiver stands appointed and any property of the
debtor is subject to a restraint order- |
(a) the powers
conferred on the receiver by virtue of that Act shall not apply to property for
the time being subject to the restraint order; and |
(b) any such
property in the hands of the receiver shall, subject to a lien for any expenses
(including his remuneration) properly incurred in respect of the property, be
dealt with in such manner as the court may direct. |
(6) Where a person
is adjudged bankrupt and has directly or indirectly made a gift caught by this
Act- |
(a) no order
shall be made by virtue of section 71 of the Bankruptcy Act in respect of the making of the gift at any time
when- |
(i) proceedings
for the drug trafficking or relevant offence have been instituted against him
and have not been concluded; |
(ii) an
application has been made in respect of the defendant under section 18, 19, 21
or 22 of this Act and has not been concluded; or |
(iii) property
of the person to whom the gift was made is subject to a restraint order or a
charging order; and |
(b) any order
made by virtue of section 71 of the Bankruptcy Act after the conclusion of the proceedings shall take
into account any realisation under this Act of property held by the person to
whom the gift was made. |
34. (1) Where realisable property is held by a company
and an order for the winding up of the company has been made or a resolution
has been passed by the company for the voluntary winding up, the functions of
the liquidator shall not be exercisable in relation to- | Winding up of company holding realisable property. |
(a) property
for the time being subject to a restraint order made before the relevant time;
and |
(b) any
proceeds of property realised by virtue of section 26(6) or 29(5) or (6) for
the time being in the hands of a receiver appointed under section 26 or 29, |
but there
shall be payable out of such property any expenses (including the remuneration
of the liquidator) properly incurred in the winding up in respect of the
property. |
(2) Where, in the
case of a company such an order has been made or such a resolution has been
passed, the powers conferred on the court by sections 26 to 30 or on a receiver
so appointed shall not be exercised in relation to any realisable property held
by the company in relation to which the functions of the liquidator are
exercisable- |
(a) so as to
inhibit him from exercising those functions for the purpose of distributing any
property held by the company to the company's creditors; or |
(b) so as to
prevent the payment out of any property of expenses (including the remuneration
of the liquidator) properly incurred in the winding up in respect of the
property. |
(3) Nothing in the
Companies Act or the International Business Companies Act shall be taken as
restricting, or enabling the restriction of, the exercise of those powers
referred to in subsection (2). |
(4) Subsection (2)
shall not affect the enforcement of a charging order made before the relevant
time or on property which was subject to a restraint order at the relevant
time. |
(5) In this
section- |
"company"
means any company which may be wound up under the Companies Act or the
International Business Companies Act; |
"liquidator"
includes any person appointed to the office of liquidator (whether
provisionally or otherwise) under the Companies Act; |
"the relevant
time" means- |
(a) where no
order for the winding up of the company has been made, the time of the passing
of the resolution for voluntary winding up; |
|
(i) such
an order has been made; but |
(ii) before
the presentation of the petition for the winding up of the company by court
order, such a resolution had been passed by the company, |
the time
of the passing of the resolution; and |
(c) in any
other case where such an order has been made the time of the making of the
order. |
(6)
Notwithstanding the Magistrates Act and any other law, a Magistrate's Court shall
have the power to make a confiscation order relating to property under Parts II
and III of this Act. |
PART IV
INFORMATION GATHERING POWERS |
35. (1) For the purpose of an investigation into- | Production orders. |
|
(b) whether any
person has benefited from criminal conduct; or |
(c) the
whereabouts of any proceeds of criminal conduct, |
a police
officer of or above the rank of Inspector may apply to a Stipendiary and
Circuit Magistrate for an order under subsection (2) (a "production
order") in relation to particular material or material of a particular
description. |
(2) Where a
Stipendiary and Circuit Magistrate is satisfied by evidence on oath that there
is reasonable cause to believe that any person is in possession of material in
respect of which a drug trafficking offence or relevant offence has been
committed he may grant an order (a "production order) to such police
officer ordering such person to produce such material immediately or at such
place and time as the Magistrate may specify in the order and, if necessary,
such police officer may enter and search for such material at any place in any
part of The Bahamas, by force if necessary, at any time by day or night. |
(3) If such
material be produced or found, such police officer shall bring the same and the
person or persons in whose possession such place or places then may be, or any
person in any such place reasonably suspected of being privy to such material
being therein, before the Magistrate appointed to preside over the court having
jurisdiction in the district in which such production order was executed. |
(4) Where the
material, to which an application under this section relates consists of
information contained in or accessible by means of a computer a production
order under subsection (2) shall have effect as an order to produce the
material in a form in which it can be taken away and in which it is visible and
legible. |
(5) A production
order- |
(a) shall not
confer any right to production of, or access to, items subject to legal
privilege; |
(b) shall have
effect notwithstanding any obligation as to confidentiality or other restriction
upon the disclosure of information imposed by the Banks and Trust Companies Regulation Act,
the Central Bank of The Bahamas Act, any
other statute or otherwise and shall not give rise to any civil liability; and |
(c) may be made
in relation to material in the possession of a Government Department (excluding
the Financial Intelligence Unit): |
Provided
however that where a production order requires information which is restricted
under the Banks and Trust
Companies Regulations Act and the Central Bank of The Bahamas Act, application shall be made ex-parte
to a Judge in chambers. |
(6) A police
officer may photograph or make copies of any material produced or to which
access is given under this section. |
(7) Where the
investigation into whether a person has benefited from criminal conduct or the
whereabouts of the proceeds of criminal conduct relates to a relevant offence
which was not committed in The Bahamas, an application under subsection (1)
shall not be made unless the provisions of section 6 of the
Criminal Justice (International Co-operation) Act, 2000 have been complied
with. |
(8) Section 6 of
the
Criminal Justice (International Co-operation) Act, 2000 shall apply for the
purposes of this section and section 39. |
(9) A production
order shall be admissible in any court as proof of the contents therein. |
36. (1) Where a person is required by a production
order to produce any material to a police officer or give a police officer
access to any material, the person shall be guilty of an offence under this
section if he- | Failure to comply with production order. |
(a) contravenes
the order; or |
(b) in
purported compliance with the order produces or makes available any material known
to the person to be false or misleading in a material particular without- |
(i) indicating
to the police officer to whom the material is produced or made available that
the material is false or misleading and the respect in which the material is
false or misleading; and |
(ii) providing
correct information to the police officer if the person is in possession of, or
can reasonably acquire, the correct information. |
(2) A person
guilty of an offence under this section shall be liable on summary conviction
to impri |