Proceeds of Crime (Designated Countries and Territories) Order 1998
PROCEEDS OF CRIME (DESIGNATED COUNTRIES AND
TERRITORIES) ORDER 1998
1
BR 1/1999
PROCEEDS OF CRIME ACT 1997
1997 : 34
THE PROCEEDS OF CRIME (DESIGNATED COUNTRIES AND
TERRITORIES) ORDER 1998
ARRANGEMENT OF ARTICLES
1 Citation
2 Interpretation
3 Designation of and
application of Act to
countries and territories
4 Proof of orders and
judgments of court in a
designated country
5 Evidence in relation to
proceedings and orders in
a designated country
6 Certificate as to
appropriate authority of a
designated country
7 Representation of
government of a
designated country
8 Satisfaction of
confiscation order in a
designated country
9 Currency conversion
SCHEDULE 1
Appropriate authority of
designated country
SCHEDULE 2
Modification of Proceeds
of Crime Act 1997
SCHEDULE 3
Proceeds of Crime Act as
modified
In exercise of the powers conferred upon the Minister of Labour,
Home Affairs and Public Safety by section 53 of the Proceeds of Crime
Act 1997, the following Order is hereby made:
PROCEEDS OF CRIME (DESIGNATED COUNTRIES AND
TERRITORIES) ORDER 1998
2
Citation
1 This Order may be cited as the Proceeds of Crime (Designated
Countries and Territories) Order 1998.
Interpretation
2 In this Order—
"the Act" means the Proceeds of Crime Act 1997, and the
"relevant provisions of the Act" are Parts I, III and VII of that
Act;
"appropriate authority" of a designated country means—
(a) the authority specified in relation to that country in
Schedule 1;
(b) where no authority is so specified, the authority
appearing to the court to be the appropriate authority of
that country for the purposes of sections 53 and 54 of
the Act, and of the other relevant provisions of the Act as
applied under article 3(2) of this Order;
"court of a designated country" includes a court of any state or
territory of a designated country;
"designated country" means a country or territory designated
under article 3(1).
Designation of and application of the Act to countries and
territories
3 (1) Each of the countries and territories specified in Schedule 1
is hereby designated for the purposes of sections 53 and 54 of the Act.
(2) In relation to a designated country, the relevant provisions
of the Act shall apply, subject to the modifications specified in Schedule
2, to external confiscation orders and to proceedings which have been or
are to be instituted in the designated country and which may result in
an external confiscation order being made there.
(3) Accordingly, in relation to such orders and such
proceedings, the relevant provisions of the Act shall have effect as set out
in Schedule 3.
Proof of orders and judgments of court in a designated country
4 (1) For the purposes of sections 53 and 54 of the Act, and of
the other relevant provisions of the Act, as applied under article 3(2)—
(a) any order made or judgment given by a court in a
designated country purporting to bear the seal of that
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court or to be signed by any person in his capacity as a
judge, magistrate or officer of the court, shall be deemed
without further proof to have been duly sealed or, as the
case may be, to have been signed by that person; and
(b) a document, duly authenticated, which purports to be a
copy of any order made or judgment given by a court in
a designated country shall be deemed without further
proof to be a true copy.
(2) A document purporting to be a copy of any order made or
judgment given by a court in a designated country is duly authenticated
for the purpose of paragraph (1)(b) above if it purports to be certified by
any person in his capacity as a judge, magistrate or officer of the court in
question or by or on behalf of the appropriate authority of the designated
country.
Evidence in relation to proceedings and orders in a designated
country
5 (1) For the purposes of sections 53 and 54 of the Act, and of
the other relevant provisions of the Act as applied under article 3(2), a
certificate purporting to be issued by or on behalf of the appropriate
authority of a designated country, stating—
(a) that proceedings have been instituted there and have
not been concluded, or that proceedings are to be
instituted there;
(b) in a case to which section 8 of the Act (institution of
proceedings), as modified by Schedule 2, applies, that
the defendant has been notified as specified in that
paragraph;
(c) that an external confiscation order is in force and is not
subject to appeal;
(d) that all or a certain amount of the sum payable under
an external confiscation order remains unpaid in the
designated country, or that other property recoverable
under an external confiscation order remains
unrecovered there;
(e) that any person has been notified of any proceedings in
accordance with the law of the designated country; or
(f) that an order (however described) made or to be made by
a court of the designated country has the purpose, or, as
the case may be, will have the purpose, of recovering
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payments or other rewards received in connection with
drug trafficking or relevant offences or their value;
shall, in any proceedings in the Supreme Court, be admissible as
evidence of the facts so stated.
(2) In any such proceedings a statement contained in a
document, duly authenticated, which purports to have been received in
evidence or to be a copy of a document so received, or to set out or
summarise evidence given in proceedings in a court in a designated
country, shall be admissible as evidence of any fact stated therein.
(3) A document is duly authenticated for the purposes of
paragraph (2) if it purports to be certified by any person in his capacity
as a judge, magistrate or officer of the court in a designated country, or
by or on behalf of the appropriate authority of the designated country, to
have been received in evidence or to be a copy of a document so received,
or, as the case may be, to be the original document containing or
summarising the evidence or a true copy of that document.
(4) Nothing in this article shall prejudice the admission of any
evidence, whether contained in any document or otherwise, which is
admissible apart from this article.
Certificate as to appropriate authority of a designated country
6 Where in relation to any designated country no authority is
specified in Schedule 1, a certificate made by the Attorney-General to the
effect that the authority specified therein is the appropriate authority for
the purposes of sections 53 and 54 of the Act, and of the other relevant
provisions of the Act as applied by article 3(2) of this Order shall be
sufficient evidence of that fact.
Representation of government of a designated country
7 (1) Where the Attorney-General receives a written request from
the appropriate authority of a designated country to register an external
confiscation order under section 54 of the Act, and that request is
accompanied
(a) by two copies of the external confiscation order with a
translation into English where necessary; and
(b) by a certificate issued by or on behalf of the appropriate
authority stating
(i) that the order is in force and not subject
to appeal; and
(ii) where the person affected by the order
did not appear in the proceedings, that
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he received notice of the proceedings in
sufficient time to enable him to defend
them,
the Attorney-General, if he is of the opinion that enforcing the order in
Bermuda would not be contrary to the interests of justice, shall lodge a
copy of the request, the order and the certificate with the Registrar of the
Supreme Court for registration in accordance with section 54 of the Act.
(2) A written request for assistance sent to the Attorney-
General by the appropriate authority of a designated country shall,
unless the contrary is shown, be deemed to constitute the authority of
that country for the Attorney-General to act on its behalf in any
proceedings in the Supreme Court under section 54 of the Act or any
other provision of the Act as applied by article 3(2).
(3) In paragraph (1)(b)(i), "appeal" includes
(a) any proceedings by way of discharging or setting aside a
judgment; and
(b) an application for a new trial or a stay of execution.
Satisfaction of confiscation order in a designated country
8 (1) Where—
(a) a confiscation order has been made under section 9 or
10 of the Act; and
(b) a request has been sent by the Attorney-General to the
appropriate authority of a designated country for
assistance in enforcing that order; and
(c) in execution of that request property is recovered in that
country,
the amount payable under the confiscation order shall be treated as
reduced by the value of the property so recovered.
(2) For the purposes of this article, and without prejudice to the
admissibility of any evidence which may be admissible apart from this
article, a certificate purporting to be issued by or on behalf of the
appropriate authority of a designated country stating—
(a) that property has been recovered there in execution of a
request by the Attorney-General;
(b) the value of the property so recovered; and
(c) the date on which it was recovered,
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shall, in any proceedings in a court in Bermuda, be admissible as
evidence of the facts so stated.
Currency conversion
9 (1) Where the value of property recovered as described in
article 8(1) is expressed in a currency other than that of Bermuda, the
extent to which the amount payable under the confiscation order is to be
reduced under that article shall be calculated on the basis of the
exchange rate prevailing on the date on which the property was
recovered in the designated country concerned.
(2) Where an amount of money payable or remaining to be paid
under an external confiscation order registered in the Supreme Court
under section 54 of the Act, is expressed in a currency other than that of
Bermuda, for the purpose of any action taken in relation to that order
under the Act as applied under article 3(2), the amount shall be
converted into the currency of Bermuda on the basis of the exchange
rate prevailing on the date of registration of the order.
(3) For the purposes of this article, a written certificate
purporting to be signed by any person acting in his capacity as an officer
of any bank in Bermuda and stating the exchange rate prevailing on a
specified date shall be admissible as evidence of the facts so stated.
Made this 23rd day of December, 1998
Minister of Labour, Home Affairs & Public Safety
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SCHEDULE 1 article 3(1)
APPROPRIATE AUTHORITY OF DESIGNATED COUNTRY
Designated country Appropriate authority
Afghanistan
Algeria
Anguilla The Attorney General of Anguilla
Antigua & Barbuda The Attorney General
Argentina The Ministry of Foreign Affairs
Armenia
Australia The Attorney-General’s Department
Austria
Azerbaijan
Bahamas The Attorney General of the Bahamas
Bahrain The Ministry of the Interior
Bangladesh
Barbados The Attorney General
Belarus
Belgium
Belize
Benin
Bhutan
Bolivia Secretaria Nacional de Defensa Social
del Ministerio de Gobierno
Bosnia & Herzegovina
Botswana
Brazil
British Virgin Islands The Attorney General of the British
Virgin Islands
Brunei Darussalam
Bulgaria
Burkina Faso
Burundi
Cameroon
Canada The Minister of Justice or officials
designated by that Minister
Cape Verde
Cayman Islands The Attorney General of the Cayman
Islands
Chad
Chile Ministerio del Interior
China
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Colombia The Fiscalia General de la Nacion and
the Ministerio de Justicia del
Derecho
Costa Rica
Cote d'Ivoire
Croatia
Cuba
Cyprus
Czech Republic
Denmark
Dominica
Dominican Republic
Eduador Consejo Nacional del Control de
Sustancias Estupefacientes y
Psicotropicas (CONSEP)
Egypt
El Salvador
Ethiopia
Fiji
Finland
France
Gambia
Germany
Ghana
Gibraltar The Attorney General of Gibraltar
Greece
Grenada The Ministry of External Affairs
Guatemala
Guernsey Her Majesty’s Attorney General for the
Bailiwick of Guernsey
Guinea
Guinea-Bissau
Guyana The Permanent Secretary, Ministry of
Home Affairs
Haiti
Honduras
Hong Kong The Attorney General of Hong Kong
Hungary
India The Ministry of Home Affairs
Iran
Ireland
Isle of Man Her Majesty’s Attorney General for the
Isle of Man
Italy The Ministry of Justice
Jamaica
Japan
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Jersey Her Majesty’s Attorney General for the
Bailiwick of Jersey
Jordan
Kazakhstan
Kenya
Kyrgyzstan
Latvia
Lesotho
Lithuania
Luxembourg
Macedonia, Former
Yugoslav Republic of
Madagascar
Malawi
Malaysia The Inspector General of Police,
Malaysia
Mali
Malta
Mauritania
Moldova
Monaco
Montserrat The Attorney General of Montserrat
Morocco
Myanmar
Nepal
Netherlands Afdeling Internationale Rechtshulp
Nicaragua
Niger
Nigeria The Attorney General of the Federation
of the Republic of Nigeria
Norway
Oman
Pakistan
Panama The Ministry of Government and Justice
Paraguay National Anti-Drugs Secretariat of the
Presidency of the Republic (SENAD)
Peru
Poland
Portugal
Qatar
Romania The Ministry of the Interior and the
Ministry of Justice
The Russian
Federation
Saint Kitts & Nevis
Saint Lucia
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Saint Vincent & the
Grenadines
Sao Tome & Principe
Saudi Arabia The Ministry of the Interior
Senegal
Seychelles
Sierra Leone
Slovakia
Slovenia
South Africa The Department of Foreign Affairs
Spain The Ministerio de Justicia, Madrid
Sri Lanka
Sudan
Suriname
Swaziland
Sweden The Ministry for Foreign Affairs
Switzerland Office fédéral de la police
Syrian Arab Republic
Tajikistan
Thailand The Attorney General or a person
designated by him
Togo
Tonga
Trinidad & Tobago
Tunisia
Turkey
Turkmenistan
Turks & Caicos Islands
Uganda
Ukraine The Office of the General Prosecutor
and the Ministry of Justice
United Arab Emirates
United Kingdom The Attorney General
United Mexican States The Office of the Attorney General
United Republic of
Tanzania
United States of
America
The Attorney General of the United
States of America
Uruguay The Ministry of Education and Culture
Uzbekistan
Venezuela
Yemen
Yugoslavia,The Federal
Republic of
Zambia
Zimbabwe
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SCHEDULE 2 article 3(2)
MODIFICATIONS OF THE PROCEEDS OF CRIME ACT 1997
1 Sections 1 and 2 of the Act shall be omitted.
2 Before section 3 there shall be inserted
"External confiscation orders
2A (1) An order made by a court in a designated country
for the purpose
(a) of recovering property, or the value of such property,
obtained as a result of or in connection with
(i) drug trafficking, or
(ii) a relevant offence; or
(b) of depriving a person of a pecuniary advantage so
obtained,
is referred to in this Act as an "external confiscation order".
(2) In subsection (1) above the reference to an order
includes any order, decree, direction or judgment, or any part
thereof, however described."
3 In section 3, for the definition of "relevant offence" there shall be
substituted
""relevant offence" means an offence which would, if
committed in Bermuda, be triable on indictment".
4 (1) In section 4(3), for paragraphs (a) and (b) there shall be
substituted
"(a) in relation to an external confiscation order
made in respect of specified property, the
property which is specified in the order; and
(b) in any other case—
(i) any property held by the defendant; and
(ii) any property held by a person to whom
the defendant has directly or indirectly
made a gift caught by this Act."
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(2) Subsections (4) to (6) of section 4 shall be omitted.
5 In section 6(1) for the words "commencement of this Act" there
shall be substituted "commencement of the Proceeds of Crime
(Designated Countries and Territories) Order 1998".
6 (1) In section 7
(a) for the definition of "defendant" there shall be
substituted—
""defendant" means a person against whom an external
confiscation order has been made, or a person
against whom proceedings which may result in an
external confiscation order being made have been or
are to be, instituted in a court in a designated
country."; and
(b) at the end of the definition of "the court" there shall be
added "or, as the case may be, a court of a designated
country;".
(2) In section 7, the definitions of "Bermuda Monetary
Authority", "confiscation order", "items subject to legal privilege",
"material" and "money laundering" shall be omitted.
7 For section 8 there shall be substituted—
"(1) Proceedings are instituted in a designated country when—
(a) under the law of the designated country
concerned one of the steps specified in relation
to that country in column 2 of the Appendix
hereto has been taken there in respect of alleged
drug trafficking by the defendant; or
(b) where no steps have been specified in relation
thereto as mentioned in paragraph (a) above, the
defendant has been notified in writing in
accordance with the laws of the designated
country that the competent authorities of that
country have begun proceedings against him in
respect of alleged drug trafficking; or
(c) an application has been made to a court in a
designated country for an external confiscation
order,
and where the application of this subsection would
result in there being more than one time for the
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institution of proceedings, they shall be taken to have
been instituted at the earliest of those times.
(2) Proceedings for an offence are concluded—
(a) when (disregarding any power of a court to grant
leave to appeal out of time) there is no further
possibility of an external confiscation order
being made in the proceedings;
(b) on the satisfaction of an external confiscation
order made in the proceedings, whether by the
recovery of all property liable to be recovered or
the payment of any amount due.
(3) An external confiscation order is satisfied when no
property remains liable to be recovered under it or no amount is
due under it.
(4) An external confiscation order is subject to appeal until
(disregarding any power of a court to grant leave to appeal out of
time) there is no further possibility of an appeal on which the
order could be varied or set aside."
8 Sections 9 to 26 shall be omitted.
9 (1) In section 27 (1)
(a) for paragraph (a) there shall be substituted
"(a) proceedings have been instituted against the
defendant in a designated country for a drug
trafficking or relevant offence;";
(b) in paragraph (b) the words "or the application has not"
shall be omitted; and
(c) for paragraph (c) there shall be substituted
"(c)either an external confiscation order has been made
in the proceedings or it appears to the Supreme
Court that there are reasonable grounds for
believing that such an order may be made in them."
(2) Section 27(2) shall be omitted.
(3) For section 27(3) there shall be substituted
"(3) The powers mentioned in subsection (1) above are also
exercisable where it appears to the Supreme Court that
proceedings are to be instituted against the defendant in a
designated country and that there are reasonable grounds for
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believing that an external confiscation order may be made in
them."
(4) Section 27(4) shall be omitted.
(5) In section 27(5), for the words "proceedings in respect of the
offence are not instituted or if the application is not made", there shall be
substituted "those proceedings are not instituted".
10 (1) In section 28(2), for paragraphs (a) and (b) there shall be
substituted
"(a) where an application under subsection (4)
relates to an external confiscation order made in
respect of specified property, to property which
is specified in that order, and
(b) in any other case—
(i) to all realisable property held by a
specified person, whether the property is
described in the restraint order or not;
and
(ii) to realisable property held by a specified
person, being property transferred to
him after the making of the restraint
order."
(2) In section 28(3), the words "or under section 19 of the Drug
Trafficking Suppression Act 1988" shall be omitted.
(3) For section 28(5)(b) there shall be substituted
"(b) shall be discharged when the proceedings in
relation to which the order was made are
concluded".
11 For section 29(2) there shall be substituted
"(2) The court may make a charging order on
realisable property for securing the payment
(a) where a fixed amount is payable under an
external confiscation order, of an amount not
exceeding the amount so payable; and
(b) in any other case, of an amount equal to the
value from time to time of the property charged."
12 After section 30 there shall be inserted
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"Applications for restraint and charging orders
30A An application under section 28(4) or 29(3) shall be
supported by an affidavit which shall—
(a) state, where applicable, the grounds for believing that
an external confiscation order has been or may be
made in the proceedings instituted or to be instituted
in the designated country concerned;
(b) to the best of the deponent's ability, give particulars
of the realisable property in respect of which the
order is sought and specify the person or persons
holding such property;
(c) in a case to which section 27(3) of this Act applies,
indicate when it is intended that proceedings should
be instituted in the designated country concerned,
and the affidavit may contain statements of information or belief
with the sources and grounds thereof."
13 (1) For section 31(1) there shall be substituted
"(1) Where an external confiscation order has been
registered in the Supreme Court under section 54 of this Act, the
Supreme Court may, on the application of the Attorney-General,
exercise the powers conferred by subsections (1A) to (6).
(1A) In respect of any sum of money payable under the
external confiscation order the court may make a garnishee
order as if the sum were due to the Crown in pursuance of a
judgment or order of the Supreme Court, but any such order
shall direct that the sum payable be paid to the Supreme Court."
(2) Section 31(7) shall be omitted.
14 (1) In section 32(1), for the words "be applied on the
defendant's behalf towards the satisfaction of the confiscation order"
there shall be substituted "be paid to the Supreme Court and applied
towards the satisfaction of the external confiscation order".
(2) In section 32(2), for the words "If, after the amount payable
under the confiscation order", there shall be substituted "Where a fixed
amount is payable under the external confiscation order and, after that
amount".
15 (1) In section 33(2), for the words "making available" to the end
of the subsection there shall be substituted "recovering property which is
liable to be recovered under an external confiscation order registered in
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the Court under section 54 of this Act or, as the case may be, with a view
to making available for recovery property which may become liable to be
recovered under any external confiscation order which may be made in
the defendant's case".
(2) In section 33(5), for "confiscation order" there shall be
substituted "external confiscation order".
16 In section 34(2), for the words "out of the Consolidated Fund"
there shall be substituted "by the person on whose application the
receiver was appointed".
17 In section 35(6)
(a) sub-paragraphs (i) and (ii) of paragraph (a) shall be
omitted; and
(b) in sub-paragraph (b), for the words "conclusion of the
proceedings or of the application" there shall be
substituted "discharge of the restraint or charging
order".
18 Sections 37 to 53 shall be omitted.
19 In section 54(3), after the word "satisfied" there shall be inserted
"by the recovery of all property liable to be recovered under it or".
20 Sections 59 to 61 shall be omitted.
21 For the definitions in section 64 there shall be substituted the
following
"charging order section 29
conclusion of proceedings in a
designated country
section 8(2)
defendant section 7
drug trafficking section 3
external confiscation order section 2A
gift caught by this Act section 6
"held" in relation to property section 4(2)
institution of proceedings in a
designated country
section 8(1)
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"interest", in relation to property section 4(1)
police officer section 57
property section 4(1)
realisable property section 4(1) and (2)
restraint order section 28
"satisfied", in relation to an external
confiscation order
section 8(3)
"subject to appeal", in relation to an
external confiscation order
section 8(4)
"transferred", in relation to property section 4(2)
value of gift, payment or reward section 5(2)
value of property section 5(1)."
22 Section 65, 67 to 69 and the Schedule shall be omitted.
23 After section 66 there shall be inserted the Appendix set out at
the end of Schedule 3 to this Order.
SCHEDULE 3 article 3(3)
THE PROCEEDS OF CRIME ACT 1997 AS MODIFIED
Interpretation
External confiscation orders
2A (1) An order made by a court in a designated country for the
purpose
(a) of recovering property, or the value of such property,
obtained as a result of or in connection with
(i) drug trafficking, or
(ii) a relevant offence; or
(b) of depriving a person of a pecuniary advantage so
obtained,
is referred to in this Act as an "external confiscation order".
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(2) In subsection (1) the reference to an order includes any
order, decree, direction or judgment, or any part thereof, however
described.
Meaning of "drug trafficking", "relevant offence", "criminal conduct"
3 In this Act—
"criminal conduct" means
(a) drug trafficking, or
(b) any relevant offence;
"drug trafficking offence" means an offence
(a) under section 4, 5, 6(3), 7 or 11 of the Misuse of Drugs
Act 1972 (importation, production, possession with
intent to supply or handling of controlled drugs and
cultivation of cannabis);
(b) under section 12 or 17 of the Criminal Justice
(International Co-operation) (Bermuda) Act 1994
(manufacture and supply of scheduled substances and
using ship for illicit traffic); or
(c) under section 43, 44 or 45 of this Act (money
laundering) which relates to the proceeds of drug
trafficking;
or an offence under section 32, 33, 230 or 231 of the
Criminal Code Act 1907 (attempt, incitement, conspiracy etc)
deriving from such an offence;
"drug trafficking" means doing or being concerned in, whether in
Bermuda 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 Bermuda 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 that other person's proceeds of drug trafficking
is facilitated; or
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(b) the proceeds of drug trafficking by another person are
used to secure that funds are placed at that other
person's disposal or are used for that other person's
benefit to acquire property by way of investment;
"relevant offence" means an offence which would, if committed in
Bermuda, be triable on indictment.
Meaning of "property", "realisable property" etc
4 (1) In this Act—
"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 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 an interest held in property by a person
beneficially include a reference to an interest which
would be held by him beneficially if the property were
not so vested in his trustee in bankruptcy or liquidator;
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) in relation to an external confiscation order made in
respect of specified property, the property which is
specified in the order; and
(b) in any other case—
(i) any property held by the defendant; and
(ii) any property held by a person to whom the
defendant has directly or indirectly made a gift
caught by this Act.
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Value of property
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—
(a) the market value of the first-mentioned person's
beneficial interest in the property, less
(b) the amount required to discharge any incumbrance
(other than a charging order) on that interest.
(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.
Gifts caught by this Act
6 (1) In relation to a drug trafficking offence, a gift (including a
gift made before the commencement of the Proceeds of Crime (Designated
Countries and Territories) Order 1998) is caught by this Act if—
(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
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(ii) where no such proceedings have been
instituted, when an application for a
charging or restraint order is made
under section 28 or 29; 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 (including a gift made
before the commencement of this Act) is caught by this Act if—
(a) 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); and
(b) the court considers it appropriate in all the
circumstances to take the gift into account.
(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 the value of which is significantly less
than the value of the consideration provided by the
defendant; 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 the same
proportion as the difference between the values referred
to in paragraph (a) bears to the value of the
consideration provided by the defendant.
Other definitions
7 In this Act—
"the court" means the Supreme Court or, as the case may be, a
court of a designated country;
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"defendant" means a person against whom an external
confiscation order has been made, or a person against whom
proceedings which may result in an external confiscation
order being made have been or are to be, instituted in a court
in a designated country;
"prescribe" means prescribe by regulations made under section
65.
Institution and conclusion of proceedings
8 (1) Proceedings are instituted in a designated country when—
(a) under the law of the designated country concerned one
of the steps specified in relation to that country in
column 2 of the Appendix hereto has been taken there in
respect of alleged drug trafficking or the commission of a
relevant offence by the defendant; or
(b) where no steps have been specified in relation thereto as
mentioned in paragraph (a) above, the defendant has
been notified in writing in accordance with the laws of
the designated country that the competent authorities of
that country have begun proceedings against him in
respect of alleged drug trafficking or a relevant offence;
or
(c) an application has been made to a court in a designated
country for an external confiscation order,
and where the application of this subsection would result in there being
more than one time for the institution of proceedings, they shall be taken
to have been instituted at the earliest of those times.
(2) Proceedings for an offence are concluded—
(a) when (disregarding any power of a court to grant leave to
appeal out of time) there is no further possibility of an
external confiscation order being made in the
proceedings;
(b) on the satisfaction of an external confiscation order
made in the proceedings, whether by the recovery of all
property liable to be recovered; or the payment of any
amount due.
(3) An external confiscation order is satisfied when no property
remains liable to be recovered under it or no amount is due under it.
(4) An external confiscation order is subject to appeal until
(disregarding any power of a court to grant leave to appeal out of time)
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TERRITORIES) ORDER 1998
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there is no further possibility of an appeal on which the order could be
varied or set aside.
Restraint and charging orders
Cases in which restraint and charging orders may be made
27 (1) The powers conferred on the Supreme Court by section 28
to make a restraint order and by section 29 to make a charging order are
exercisable where—
(a) proceedings have been instituted against the defendant
in a designated country for a drug trafficking or relevant
offence;
(b) the proceedings have not been concluded;
(c) either an external confiscation order has been made in
the proceedings or it appears to the Supreme Court that
there are reasonable grounds for believing that such an
order may be made in them.
(3) The powers mentioned in subsection (1) are also exercisable
where it appears to the Supreme Court that proceedings are to be
instituted against the defendant in a designated country and that there
are reasonable grounds for believing that an external confiscation order
may be made in them.
(5) Where the court has made a restraint or charging order by
virtue of subsection (3), the court shall discharge the order if the those
proceedings are not instituted within such time as the court considers
reasonable.
Restraint orders
28 (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.
(2) A restraint order may apply—
(a) where an application under subsection (4) relates to an
external confiscation order made in respect of specified
property, to property which is specified in that order,
and
(b) in any other case—
(i) to all realisable property held by a
specified person, whether the property is
PROCEEDS OF CRIME (DESIGNATED COUNTRIES AND
TERRITORIES) ORDER 1998
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described in the restraint order or not;
and
(ii) to realisable property held by a specified
person, being property transferred to
him after the making of the restraint
order.
(3) This section shall not have effect in relation to any property
for the time being subject to a charge under section 29 of this Act.
(4) A restraint order—
(a) may be made only on an application by the Attorney-
General; and
(b) may be made on an ex parte application to a Judge in
chambers; and
(c) shall provide for notice to be given to 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 the proceedings in relation to
which the order was made 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 person includes (without prejudice to the generality of the
expression)—
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TERRITORIES) ORDER 1998
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(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 Bermuda.
(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 Bermuda; and property so seized shall be dealt with in
accordance with the directions of the court.
Charging orders
29 (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.
(2) The court may make a charging order on realisable property
for securing the payment—
(a) where a fixed amount is payable under an external
confiscation order, of an amount not exceeding the
amount so payable; and
(b)in any other case, of an amount equal to the value from
time to time of the property charged.
(3) A charging order—
(a) may be made only on an application by the Attorney-
General; and
(b) may 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
(ii) under any trust; 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
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TERRITORIES) ORDER 1998
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order on the whole beneficial interest under the first-
mentioned trust.
(5) In this section
(a) "chargeable asset" means any of the following
(i) any land in Bermuda;
(ii) any relevant securities;
(iii) any motor vehicle;
(iv) any vessel;
(v) any aircraft;
(vi) 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 the government or of any
public authority;
(ii) stock of any body incorporated in
Bermuda;
(iii) stock of any body incorporated outside
Bermuda or of any country or territory
outside Bermuda, being stock registered
in a register kept at any place within
Bermuda;
(iv) options in relation to stock described in
sub-paragraphs (ii) or (iii);
(v) units of any unit trust in respect of
which a register of the unit holders is
kept at any place in Bermuda.
(6) In any case where a charge is imposed by a charging order
on any interest in any relevant securities, 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—
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(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.
Charging orders: supplementary
30 (1) A charging order may be made either absolutely or subject
to conditions including in particular conditions—
(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 charging order shall be deposited in the office
of the Registrar-General for recording and registration in accordance
with section 3 of the Registrar-General (Recording of Documents) Act
1955.
(3) Subject to any provision made under section 31, 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.
Applications for restraint and charging orders
30A An application under section 28(4) or 29(3) of this Act shall be
supported by an affidavit which shall—
(a) state, where applicable, the grounds for believing that an
external confiscation order has been or may be made in
the proceedings instituted or to be instituted in the
designated country concerned;
(b) to the best of the deponent's ability, give particulars of
the realisable property in respect of which the order is
sought and specify the person or persons holding such
property;
(c) in a case to which section 27(3) of this Act applies,
indicate when it is intended that proceedings should be
instituted in the designated country concerned,
and the affidavit may contain statements of information or belief with the
sources and grounds thereof.
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Realisation of property
Realisation of property
31 (1) Where an external confiscation order has been registered in
the Supreme Court under section 54 of this Act, the Supreme Court may,
on the application of the Attorney-General, exercise the powers conferred
by subsections (1A) to (6) below.
(1A) In respect of any sum of money payable under the external
confiscation order the court may make a garnishee order as if the sum
were due to the Crown in pursuance of a judgment or order of the
Supreme Court, but any such order shall direct that the sum payable be
paid to the Supreme Court.
(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 28 or in pursuance of a charging order—
(a) to enforce any charge imposed under section 29 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 29,
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.
(8) The court shall not in respect of any property exercise the
powers conferred by subsection (3)(a), (5) or (6) unless a reasonable
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TERRITORIES) ORDER 1998
29
opportunity has been given for persons holding any interest in the
property to make representations to the court.
Application of proceeds of realisation etc
32 (1) The following sums in the hands of the receiver pursuant to
section 28 or 31 or in pursuance of a charging order—
(a) the proceeds of the enforcement of any charge imposed
under section 29;
(b) the proceeds of the realisation, other than by the
enforcement of such a charge, of any property under
section 28 or 31; 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 paid to the Supreme Court and applied
towards the satisfaction of the external confiscation order.
(2) Where a fixed amount is payable under the external
confiscation order and, after that amount 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
(b) in such proportions,
as the court may direct after giving a reasonable opportunity for such
persons to make representations to the court.
Exercise of powers for the realisation of property
33 (1) This section shall apply to the powers conferred on the
court by sections 28 to 32 or on the receiver pursuant to section 28 or 31
or in pursuance of a charging order.
(2) Subject to subsections (3) to (6), the powers shall be
exercised with a view to recovering property which is liable to be
recovered under an external confiscation order registered in the Court
under section 54 of this Act or, as the case may be, with a view to
making available for recovery property which may become liable to be
recovered under any external confiscation order which may be made in
the defendant's case.
(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.
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30
(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 external confiscation order.
(6) An order may be made or other action taken in respect of a
debt owed by the Crown.
Receivers: supplementary
34 (1) Where a receiver appointed under section 28 or 31 or in
pursuance of a charging order—
(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 by the person on whose
application the receiver was appointed.
Insolvency
Bankruptcy of defendant
35 (1) Where a person who holds realisable property is adjudged
bankrupt—
(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
28(6) or 31(5) or (6) for the time being in the hands of a
receiver appointed under section 28 or 31,
shall be excluded from the bankrupt's estate for the purposes of the
Bankruptcy Act 1989 ("the 1989 Act").
(2) Where a person has been adjudged bankrupt, the powers
conferred on the court by sections 28 to 32 or on a receiver shall not be
PROCEEDS OF CRIME (DESIGNATED COUNTRIES AND
TERRITORIES) ORDER 1998
31
exercised in relation to property for the time being comprised in the
property of the bankrupt for the purposes of the 1989 Act.
(3) Nothing in the 1989 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 9 of the 1989 Act or an interim receiver stands
appointed under section 10 of the 1989 Act, 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 33 or 45 of
the 1989 Act (avoidance of certain settlements etc) in
respect of the making of the gift at any time when
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 33 or 45 of the 1989
Act after the discharge of the restraint or charging order
shall take into account any realisation under this Act of
property held by the person to whom the gift was made.
Winding up of company holding realisable property
36 (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—
PROCEEDS OF CRIME (DESIGNATED COUNTRIES AND
TERRITORIES) ORDER 1998
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(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
28(6) or 31(5) or (6) for the time being in the hands of a
receiver appointed under section 28 or 31,
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 28 to 32 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 1981 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 1981;
"liquidator" includes any person appointed to the office of
liquidator (whether provisionally or otherwise) under the
Companies Act 1981;
"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;
(b) where—
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TERRITORIES) ORDER 1998
33
(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.
Foreign orders etc
Registration of external confiscation orders
54 (1) On an application made by or on behalf of the government
of a designated country, the Supreme Court may register an external
confiscation order made there if—
(a) it is satisfied that at the time of registration the order is
in force and not subject to appeal;
(b) it is satisfied, where the person affected by the order did
not appear in the proceedings, that he received notice of
the proceedings in sufficient time to enable him to
defend them; and
(c) it is of the opinion that enforcing the order in Bermuda
would not be contrary to the interests of justice.
(2) In subsection (1)(a), "appeal" includes—
(a) any proceedings by way of discharging or setting aside a
judgment; and
(b) an application for a new trial or a stay of execution.
(3) The court shall cancel the registration of an external
confiscation order if it appears to the court that the order has been
satisfied by the recovery of all property liable to be recovered under it or
by payment of the amount due under it.
Evidence of corresponding law
55 (1) A document purporting to be issued by or on behalf of the
Government of a country or territory and purporting to state the terms of
a corresponding law in force in that country or territory shall be admitted
in evidence, in proceedings under this Act, on its production by the
PROCEEDS OF CRIME (DESIGNATED COUNTRIES AND
TERRITORIES) ORDER 1998
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prosecution without further proof, and such document shall be
conclusive evidence that—
(a) it is issued by or on behalf of the Government of that
country or territory;
(b) the terms of such law are as stated in the document;
(c) any facts stated in the document to constitute an offence
under such law do constitute such offence.
(2) "Corresponding law"
(a) in relation to proceedings relating to drug trafficking has
the meaning given in section 40 of the Misuse of Drugs
Act 1972; and
(b) in any other case, means a law which corresponds with
a provision of Bermuda law which creates a relevant
offence.
Offences and police powers etc
Offences by bodies corporate
56 Where a body corporate is guilty of an offence under this Act and
that offence is proved to have been committed with the consent or
connivance of any director, manager, secretary or other similar officer of
the body corporate or any person who was purporting to act in any such
capacity, he, as well as the body corporate, shall be guilty of that offence
and shall be liable to be proceeded against and punished accordingly.
Police powers etc
57 (1) For the purposes of this Act, "police officer" includes any
officer of the Customs Department.
(2) A police officer may arrest without warrant any person
whom he reasonably believes has committed an offence under this Act.
(3) An officer of the Customs Department may, in any case
relating to the commission of an offence under this Act, exercise all or
any of the powers in relation to investigations into an offence which is
arrestable without warrant conferred on a police officer by the Criminal
Code Act 1907.
Police officers: duty of confidentiality
58 (1) Except for the purpose of the performance of his duties or the
exercise of his functions or when lawfully required to do so by any court
or under the provisions of any enactment, no police officer shall disclose
PROCEEDS OF CRIME (DESIGNATED COUNTRIES AND
TERRITORIES) ORDER 1998
35
any information or matter which has been obtained by him in the
performance of his duties or the exercise of his functions under this Act.
(2) Any person who contravenes this section shall be guilty of
an offence and shall be liable on summary conviction to imprisonment
for one year or a fine of $2,000 or both.
Procedure
Civil standard of proof
62 Any question of fact to be decided by a court in proceedings
under this Act, except any question of fact that is for the prosecution to
prove in any proceedings for an offence under this Act, shall be decided
on the balance of probabilities.
Appeals
63 Any decision of a court in proceedings under this Act, except
proceedings in relation to any offence committed under this Act, is a
judgment of a court in a civil cause or matter within section 12(1) and (2)
of the Court of Appeal Act 1964 or, as the case may be, section 2 of the
Civil Appeals Act 1971.
Supplemental
Index of defined expressions
64 In this Act the expressions listed below are defined by, or
otherwise fall to be construed in accordance with, the provisions of this
Act listed below
charging order section 29
conclusion of proceedings in a
designated country
section 8(2)
defendant section 7
drug trafficking section 3
external confiscation order section 2A
gift caught by this Act section 6
"held" in relation to property section 4(2)
institution of proceedings in a
designated country
section 8(1)
"interest", in relation to property section 4(1)
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police officer section 57
property section 4(1)
realisable property section 4(1) and (2)
restraint order section 28
"satisfied", in relation to an external
confiscation order
section 8(3)
"subject to appeal", in relation to an
external confiscation order
section 8(4)
"transferred", in relation to property section 4(2)
value of gift, payment or reward section 5(2)
value of property section 5(1)
Crown application
66 This Act binds the Crown, but not so as to make the Crown
capable of any criminal offence.
APPENDIX
INSTITUTION OF PROCEEDINGS
Designated country Point at which proceedings are instituted
Anguilla (a) when a summons or warrant is
issued in respect of an offence;
(b) when a person is charged with an
offence after being taken into
custody without a warrant;
(c) when a bill of indictment is
preferred
Antigua & Barbuda when a person has been charged with a
scheduled offence
Argentina when a judge has ordered that a person
be detained for the purpose of testifying in
connection with the commission of an
offence
PROCEEDS OF CRIME (DESIGNATED COUNTRIES AND
TERRITORIES) ORDER 1998
37
Australia when an information or a complaint has
been laid before a justice of the peace or a
magistrate, or a person has been charged
with an offence, or an indictment or a
presentment has been preferred
The Bahamas (a) when an information has been
laid before a justice of the peace;
(b) when a person is charged with an
offence after having been taken
into custody without a warrant;
(c) when a bill of indictment is
preferred
Bahrain when a bill of indictment is lodged in
court against any person for an offence
Barbados (a) when an information has been
laid before a magistrate;
(b) when a person is charged with an
offence;
(c) when a bill of indictment is
preferred
Bolivia when a warrant is issued by a competent
judge or an order to institute proceedings,
containing the preventive annotation of
property liable to registration or the bank
deposit of the monies, assets and property
of the accused
British Virgin Islands (a) when a summons or warrant is
issued in respect of an offence;
(b) when a person is charged with an
offence after being taken into
custody without a warrant;
(c) when an indictment is preferred
PROCEEDS OF CRIME (DESIGNATED COUNTRIES AND
TERRITORIES) ORDER 1998
38
The Cayman Islands (a) when a charge has been signed
under subsection (3) or (4) of
section 13 of the Criminal
Procedure Code in respect of the
offence;
(b) when a person is charged with
the offence after being arrested
without a warrant under
subsection (5) of that section
Chile when an application for a decision from
the competent judicial authority is made
Columbia when a preliminary investigation or a
formal process has begun and, in either
case, a Resolution has been issued for a
freezing or seizure order
Ecuador when a writ is issued by a judge initiating
criminal proceedings
Germany when a person is notified that he is
accused of an offence and will be brought
before a court
Gibraltar when a person is charged with an offence,
whether by the laying of an information or
otherwise
Grenada (a) when an information has been
laid before a justice of the peace;
(b) when a person is charged with an
offence;
(c) when a bill of indictment is
preferred
Guernsey when a person is charged with an offence
Guyana when a charge has been laid against a
person for an offence
Hong Kong (a) when a magistrate issues a
warrant or summons;
(b) when a person is charged with an
offence;
(c) when an indictment is preferred
PROCEEDS OF CRIME (DESIGNATED COUNTRIES AND
TERRITORIES) ORDER 1998
39
India (a) when information relating to
commission of any crime is
received by any law enforcement
agency empowered to investigate
such crime under the law for the
time being in force and laid before
a court of law;
(b) when any allegation is made
orally or in writing to a court of
law that a person has committed
an offence;
(c) when a person is charged with an
offence;
(d) when any investigation or inquiry
into the commission of any
offence is directed by a court of
law
Isle of Man (a) where a justice of the peace
issues a summons under section
4 of the Summary Jurisdiction
Act 1989, when the complaint in
relation to the offence is made to
him;
(b) where a justice of the peace
issues a warrant for the arrest of
any person under that section,
when the complaint in relation to
the offence is made to him;
(c) where a person is charged with
the offence after being taken into
custody without a warrant, when
he is taken into custody;
(d) where an information is preferred
by the Attorney General in a case
where there have been no
committal proceedings, when the
information is lodged in the
General Registry in accordance
with section 4(1) of the Criminal
Code Amendment Act 1917
PROCEEDS OF CRIME (DESIGNATED COUNTRIES AND
TERRITORIES) ORDER 1998
40
Italy (a) when a person is notified, in
accordance with article 369 of the
Italian Code of Criminal
Procedure, that a prosecution
against him is in progress;
(b) when a proposal for the
application of a preventative
measure (“misura di prevenzione”)
is laid before a court
Jersey (a) when the Bailiff issues a warrant
in respect of an offence for the
arrest of a person who is out of
the Island;
(b) when a person is arrested and
charged with an offence;
(c) when a summons in respect of an
offence is served on a person at
the instance of the Attorney
General;
(d) when a summons in respect of
the offence is served on a person
in accordance with the provisions
of Article 8 of the Police Court
(Miscellaneous Provisions)
(Jersey) Law, 1949
Malaysia when a person is charged with an offence
Montserrat (a) when a judge issues a summons
or warrant in respect of an
offence;
(b) when a person is charged with an
offence after being taken into
custody without a warrant
PROCEEDS OF CRIME (DESIGNATED COUNTRIES AND
TERRITORIES) ORDER 1998
41
Netherlands (a) when a pre-trial financial
investigation has been initiated;
(b) when the provisional measure
has been ordered by an
investigating magistrate;
(c) when a police prosecutor has
requested a pre-trial criminal
investigation by an investigating
magistrate to be instituted;
(d) when a public prosecutor has laid
an indictment
Panama when a person has been charged with an
offence
Paraguay when a judge has ordered the restraint of
property and a preventative detention
order has been made
Romania (a) when the start of a penal pursuit
is ordered;
(b) when penal proceedings start in
respect of an offender
Saudi Arabia when an information has been laid before
a judicial authority
South Africa (a) when a summons is issued in
respect of an offence;
(b) when a person is charged with an
offence;
(c) when a bill of indictment is
preferred
Spain when by virtue of a judicial resolution it is
decided to proceed against a person for an
offence
Sweden when a public prosecutor has established
that there are reasonable grounds to
suspect that a person has committed an
offence and accordingly is obliged under
the Code of Judicial Procedure to notify
the person of the suspicion
PROCEEDS OF CRIME (DESIGNATED COUNTRIES AND
TERRITORIES) ORDER 1998
42
Switzerland when proceedings for an offence are
brought before an examining magistrate
Thailand when a court or the Asset Examination
Committee issues a restraint order
Ukraine when a criminal case is brought
United Kingdom when a summons or warrant is issued in
respect of an offence, or a person is
charged after being taken into custody
without a warrant, or a bill of indictment
is preferred
United Mexican States when criminal proceedings are instituted
by a judicial authority
United States of America when an indictment, information or
complaint has been filed against a person
in respect of an offence
Uruguay when criminal proceedings are instituted
by a judicial authority
