Rules of The Supreme Court Amendment Rules 1998

Link to law: http://www.bermudalaws.bm/Laws/Annual%20Laws/1998/Statutory%20Instruments/Rules%20of%20The%20Supreme%20Court%20Amendment%20Rules%201998.pdf

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Rules of The Supreme Court Amendment Rules 1998
RULES OF THE SUPREME COURT AMENDMENT RULES 1998

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BR 7/1998

SUPREME COURT ACT 1905

1905 : 4

THE RULES OF THE SUPREME COURT
AMENDMENT RULES 1998

The Chief Justice in exercise of the powers conferred upon him
by section 62 of the Supreme Court Act 1905, makes the following Rules:


Citation and commencement
1 These Rules may be cited as the Rules of the Supreme Court
Amendment Rules 1998 and shall come into operation on the 23
January 1998.

Inserts new Order 115A
2 After Order 115 of the Rules of the Supreme Court 1985 there
shall be inserted—

"ORDER 115A

CONFISCATION AND FORFEITURE IN CONNECTION WITH
CRIMINAL PROCEEDINGS

Interpretation
1 (1) In this Order, "the Act" means the Proceeds of Crime Act
1997, and a section referred to by number means the section so
numbered in the Act.

RULES OF THE SUPREME COURT AMENDMENT RULES 1998

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(2) Expressions used in this Order which are used in the Act
have the same meanings in this Order as in the Act.

Proceedings to be heard in chambers
2 The jurisdiction of the Court under the Act shall be exercised by
a judge in chambers.

Title of proceedings
2A An originating process under this Order shall be entitled in the
matter of the defendant, naming him, and in the matter of the Act, and
all subsequent documents in the matter shall be so entitled.

Application for confiscation order
2B (1) An application by the Attorney-General for a confiscation
order under section 22 shall be made by summons where there have
been proceedings against the defendant in the Supreme Court, and shall
otherwise be made by originating motion.

(2) The application shall be supported by an affidavit giving full
particulars of the following matters—

(a) the grounds for believing that the defendant has died or
absconded;

(b) the date or approximate date on which the defendant
died or absconded;

(c) where the application is made under section 22(1), the
offence or offences of which the defendant was convicted,
and the date of conviction;

(d) where the application is made under section 22(2), the
proceedings which have been initiated against the
defendant (including particulars of the offence and the
date of institution of those proceedings); and

(e) where the defendant is alleged to have absconded, the
steps taken to contact him.

(3) The Attorney-General's statement under section 13 shall be
exhibited to the affidavit and shall include the following particulars—

(a) the name of the defendant;

(b) the name of the person by whom the statement is given;

(c) such information known to the Attorney-General as is
relevant to the determination whether the defendant has
benefited from drug trafficking or relevant offences and

RULES OF THE SUPREME COURT AMENDMENT RULES 1998

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the assessment of his proceeds of drug trafficking or
benefit from relevant offences.

(4) Unless the Court otherwise orders, an affidavit under
paragraph (2) may contain statements of information or belief, with their
sources and grounds.

(5) The application and the affidavit in support shall be served
not less than 7 days before the date fixed for the hearing of the
application on—

(a) the defendant, or on the estate representatives of a
deceased defendant;

(b) any person who the Attorney-General reasonably
believes is likely to be affected by the making of a
confiscation order; and

(c) the receiver, where one has been appointed in the
matter.

Application for restraint order or charging order
3 (1) An application for a restraint order under section 28 or for a
charging order under section 29 (to either of which may be joined an
application for the appointment of a receiver) may be made by the
Attorney-General ex parte by originating motion to the Court.

(2) An application under paragraph (1) shall be supported by
an affidavit, which shall—

(a) state the grounds for the application; and

(b) to the best of the deponent's ability, give full particulars
of the realisable property in respect of which the order is
sought and specify the person or persons holding such
property.

(3) Unless the Court otherwise directs, an affidavit under
paragraph (2) may contain statements of information or belief with the
sources and grounds thereof.

Restraint order and charging order
4 (1) A restraint order may be made subject to conditions and
exceptions, including but not limited to conditions relating to the
indemnifying of third parties against expenses incurred in complying
with the order, and exceptions relating to living expenses and legal
expenses of the defendant, but the Attorney-General shall not be
required to give an undertaking to abide by any order as to damages
sustained by the defendant as a result of the restraint order.

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(2) Unless the Court otherwise directs, a restraint order made
ex parte shall have effect until a day which shall be fixed for the hearing
inter partes of the application and a charging order shall be an order to
show cause, imposing the charge until such a day.

(3) Where a restraint order is made the Attorney-General shall
serve copies of the order and of the affidavit in support on the defendant
and on all other named persons restrained by the order and shall notify
all other persons or bodies affected by the order of its terms.

(4) Where a charging order is made the Attorney-General shall
serve copies of the order and of the affidavit in support on the defendant
and, where property to which the order relates is held by another person,
on that person and the Registrar-General for registration in accordance
with section 30(2).

Discharge or variation of order
5 (1) Any person on whom a restraint order or a charging order is
served or who is notified of such an order may apply by summons to
discharge or vary the order.

(2) The summons and any affidavit in support shall be lodged
with the Court and served on the Attorney-General and, where he is not
the applicant, on the defendant, not less than two clear days before the
date fixed for the hearing of the summons.

(3) Upon the Court being notified that proceedings for the
offences have been concluded or that the amount, payment of which is
secured by a charging order has been paid into Court, any restraint
order or charging order, as the case may be, shall be discharged.

(4) The Court may also discharge a restraint order or a
charging order upon receiving notice from the Attorney-General that it is
no longer appropriate for the order to remain in place.

Further application by Attorney-General
6 (1) Where a restraint order or a charging order has been made,
the Attorney-General may apply by summons or, where the case is one of
urgency or the giving of notice would cause a reasonable apprehension of
dissipation of assets, ex parte—

(a) to vary such order; or

(b) for a restraint order or a charging order in respect of
other realisable property; or

(c) for the appointment of a receiver.

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(2) An application under paragraph (1) shall be supported by
an affidavit which, where the application is for a restraint order or a
charging order, shall to the best of the deponent's ability give full
particulars of the realisable property in respect of which the order is
sought and specify the person or persons holding such property.

(3) The summons and affidavit in support shall be lodged with
the Court and served on the defendant and, where one has been
appointed in the matter, on the receiver, not less than two clear days
before the date fixed for the hearing of the summons.

(4) Rule 4(3) and (4) shall apply to the service of restraint
orders and charging orders respectively made under this rule on persons
other than the defendant.

Realisation of property
7 (1) An application by the Attorney-General under section 31
shall be made by summons.

(2) The summons shall be served with the evidence in support
not less than 7 days before the date fixed for the hearing of the summons
on—

(a) the defendant;

(b) any person holding any interest in the realisable
property to which the application relates; and

(c) the receiver, where one has been appointed in the
matter.

(3) The application shall be supported by an affidavit, which
shall, to the best of the deponent's ability, give full particulars of the
realisable property to which it relates and specify the person or persons
holding such property, and a copy of the confiscation order, of any
certificate issued by the Court under section 15(2) and of any charging
order made in the matter shall be exhibited to such affidavit.

(4) The Court may, on an application under section 31—

(a) exercise the power conferred by section 32 to direct the
making of payments by the receiver;

(b) give directions in respect of the property interests to
which the application relates; and

(c) make declarations in respect of those interests.

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Receivers
8 (1) Subject to the provisions of this rule, the provisions of
Order 30, rules 2 to 6 shall apply where a receiver is appointed in
pursuance of a charging order or under section 28 or 31.

(2) Where the receiver proposed to be appointed has been
appointed receiver in other proceedings under the Act, it shall not be
necessary for an affidavit of fitness to be sworn or for the receiver to give
security, unless the Court otherwise orders.

(3) Where a receiver has fully paid the amount payable under
the confiscation order and any sums remain in his hands, he shall apply
by summons for directions as to the distribution of such sums.

(4) A summons under paragraph (3) shall be served with any
evidence in support not less than 7 days before the date fixed for the
hearing of the summons on—

(a) the defendant; and

(b) any other person who held property realised by the
receiver.

(5) A receiver may apply for an order to discharge him from his
office by making an application, which shall be served, together with any
evidence in support, on all persons affected by his appointment not less
than 7 days before the day fixed for the hearing of the application.

Certificate of inadequacy
9 (1) The defendant or a receiver appointed under section 28 or
31 or in pursuance of a charging order may apply by summons for a
certificate under section 21(1).

(2) A summons under paragraph (1) shall be served with any
supporting evidence not less than 7 days before the date fixed for the
hearing of the summons on the Attorney-General and, as the case may
be, on either the defendant or the receiver (where one has been
appointed).

Certificate of increase in realisable property
9A An application under section 20(2) shall be served with any
supporting evidence not less than 7 days before the date fixed for the
hearing of the application on the defendant and, as the case may be, on
either the Attorney-General or (where one has been appointed) on the
receiver.

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Compensation
10 An application for an order under section 60 shall be made by
summons, which shall be served, with any supporting evidence, on the
person alleged to be in default and on the Attorney-General not less than
7 days before the date fixed for the hearing of the summons.

Disclosure of information
11 (1) An application by the Attorney-General under section 40
shall be made by summons, which shall state the nature of the order
sought and whether material sought to be disclosed is to be disclosed to
a receiver appointed under section 28 or 31 or in pursuance of a
charging order, or to a police officer.

(2) The summons and affidavit in support shall be served on
the Government Department in accordance with Order 77, rule 4 not less
than 7 days before the date fixed for the hearing of the summons.

(3) The affidavit in support of an application under paragraph
(1) shall state the grounds for believing that the conditions in section
40(4) and, if appropriate, section 40(7) are fulfilled.

Compensation for, discharge and variation or confiscation order
11A (1) An application under section 23 or 24 shall be made by
summons which, together with any evidence in support, shall be lodged
with the Court and served on the Attorney-General not less than 7 days
before the day fixed for the hearing of the summons.

(2) Notice shall also be served on any receiver appointed in
pursuance of a charging order or under section 28 or 31.

(3) An application for an order under section 24(3) shall be
supported by an affidavit giving details of—

(a) the confiscation order made under section 22(2);

(b) the acquittal of the defendant;

(c) the realisable property held by the defendant;

(d) the loss suffered by the defendant as a result of he
confiscation order.

(4) An application for an order under section 24(2) shall be
supported by an affidavit giving details of—

(a) the confiscation order made under section 22(2);

(b) the date on which the defendant ceased to be an
absconder;

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(c) the date on which proceedings against the defendant
were instituted and a summary of the steps taken in the
proceedings since then; and

(d) any indication by the Attorney-General that he does not
intend to proceed against the defendant.

(5) An application made under section 23 shall be supported
by an affidavit giving details of—

(a) the confiscation order under section 22(2);

(b) the circumstances in which the defendant ceased to be
an absconder; and

(c) the amounts referred to in section 23(2).

(6) Where an application is made for an order under section
23(3) or 24(3), the affidavit shall also include—

(a) details of the realisable property to which the application
relates; and

(b) details of the loss suffered by the applicant as a result of
the confiscation order.

(7) Unless the Court otherwise orders, an affidavit under
paragraphs (3) to (6) may contain statements of information and belief,
with the sources and grounds thereof.

Application for registration of external confiscation order
13 An application for registration of an external confiscation order
under section 54(1) may be made ex parte.

Evidence in support of application under section 54
15 (1) An application for registration of an external confiscation
order must be supported by an affidavit—

(a) exhibiting the order or a verified or certified or otherwise
duly authenticated copy thereof and, where the order is
not in the English language, a translation thereof into
English certified by a notary public or authenticated by
affidavit; and

(b) stating—

(i) that the order is in force and is not subject to
appeal;

(ii) where the person against whom the order was
made did not appear in the proceedings, that he

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received notice thereof in sufficient time to
enable him to defend them;

(iii) in the case of money, either that at the date of
the application the sum payable under the order
has not been paid or the amount which remains
unpaid, as may be appropriate, or, in the case of
other property, the property which has not been
recovered; and

(iv) to the best of the deponent's knowledge,
particulars of what property the person against
whom the order was made holds in Bermuda,
giving the source of the deponent's knowledge.

(2) Unless the Court otherwise directs, an affidavit for the
purposes of this rule may contain statements of information or belief
with the sources and grounds thereof.

Register of orders
16 (1) There shall be kept in the Registry under the direction of
the Registrar a register of the orders registered under the Act.

(2) There shall be included in such register particulars of any
variation or setting aside of a registration, and of any execution issued
on such an order.

Notice of registration
17 (1) Notice of the registration of an order must be served on the
person against whom it was obtained by delivering it to him personally or
by sending it to him at his usual or last known address or place of
business or in such other manner as the Court may direct.

(2) Service of such a notice out of the jurisdiction is permissible
without leave, and Order 11, rules 5, 6, and 8 shall apply in relation to
such a notice as they apply in relation to a writ.

Application to vary or set aside registration
18 An application by the person against whom an order was made
to vary or set aside the registration of an order shall be made by
summons supported by affidavit.

Enforcement of order
19 (2) If an application is made under rule 18, an order shall not
be enforced until after such application is determined.

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Variation, satisfaction and discharge of registered order
20 Upon the Court being notified by the applicant for registration
that an order which has been registered has been varied, satisfied or
discharged, particulars of the variation, satisfaction or discharge, as the
case may be, shall be entered in the register.

Rules to have effect subject to orders made by the Minister
21 Rules 13 to 18 shall have effect subject to the provisions of any
order made under section 53.

Criminal Justice (International Co-operation) (Bermuda) Act 1994:
external forfeiture orders
21A The provisions of this Order shall, with such modifications as are
necessary and subject to the provisions of any order made under section
9 of the Criminal Justice (International Co-operation) (Bermuda) Act
1994, apply to proceedings for the registration and enforcement of
external forfeiture orders as they apply to such proceedings in relation to
external confiscation orders.

For the purposes of this rule, an external forfeiture order is an
order made by a court in a country or territory outside Bermuda which is
enforceable in Bermuda by virtue of any such order."