Proceeds Of Serious Crime - Restraining Orders (Ss 8-11)

Link to law: http://www.elaws.gov.bw/desplaylrpage1.php?id=1483

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PART III
Restraining Orders (ss 8-11)

[Ch0803s8]8. Restraining order

(1) Where a person has been or is about to be

charged with a serious offence, the Director of Public Prosecutions may apply

to a magistrate's court or the High Court, ex-parte, for a restraining

order.

(2) An application for a restraining order may be

made in respect of one, or more than one, serious offence and shall be

supported by an affidavit of a police officer of or above the rank of

Inspector-

(a) stating

the serious offence or offences in respect of which the application is made;

(b) stating

that the officer has a reasonable belief that the defendant committed the

offence, or each of the offences, as the case may be, and that he received or

derived proceeds from the said commission;

(c) identifying

the property which the officer reasonably believes to represent the proceeds

received or derived by the defendant from the said commission; and

(d) the

basis for such beliefs.

(3) An application for a restraining order shall

not be made or continued if proceedings against the defendant in respect of the

serious offence or offences are abandoned or cease to have effect.

(4) Where, on an application under this section,

the magistrate's court or the High Court is satisfied that there is reasonable

cause to believe that the defendant has benefited from the proceeds of the

serious offence or offences in respect of which the application is made, the

court may, by order (herein referred to as a "restraining order"),

prohibit any person from dealing in any way with any property to which the

order applies, subject to such conditions as may be specified in the order.

(5) A restraining order shall identify the

defendant and the offence or offences in respect of which it is made, and shall

provide for notice to be given to any person affected by the order.

(6) A restraining order may apply to-

(a) property

described in the order, being property-

(i) of

the defendant or

(ii) received

in connection with, or derived from, the commission of the offence and held by

any person, other than the defendant in the order; or

(b) all

property of the defendant, whether described in the order or not, and including

property acquired by the defendant after the making of the order.

(7) The conditions, subject to which a restraining

order may be made, may include conditions with respect to the meeting of

reasonable living and business expenses of any person to whom the order

applies, or who is affected by the order.

(8) The magistrate's court or the High Court may

rescind or vary an order made under this section if the defendant gives

security, satisfactory to the court, for the payment of any future pecuniary

penalty which may be made in respect of any serious offence to which the

application for a restraining order relates, or if the defendant gives

undertakings, satisfactory to the court, concerning any of his property which

might become liable to a future pecuniary penalty.

[Ch0803s9]9. Appointment of receiver

(1) The High Court may appoint a receiver to take

possession of any property to which a restraining order relates, and, in

accordance with such directions, or subject to such conditions or exceptions as

the court may give or impose, to manage or otherwise deal with any property in

respect of which he is appointed.

(2) Any person having possession of any property

in respect of which a receiving order is made under this section, shall give

control or possession thereof to the receiver.

(3) The High Court may, on application, or of its

own motion, revoke the appointment of a receiver, or vary the conditions or

exceptions subject to which he was appointed.

(4) Where a confiscation order is made against the

defendant, any property in respect of which the receiver was appointed and

which is in his possession or under his control, shall be made available by the

receiver, to such extent as may be necessary, to satisfy the amount of the

pecuniary penalty imposed under the confiscation order, unless the High Court

otherwise directs.

(5) A person appointed a receiver under subsection

(1) shall be paid such remuneration as may be specified by the High Court.

(6) Where the appointment of a receiver ceases,

whether by reason of the discharge of the restraining order or for some other

reason, any property in respect of which he was appointed and which is then in

his possession or under his control, shall be dealt with by the receiver as the

High Court directs.

(7) Where a receiver takes any action in relation

to property which is not property in respect of which he was appointed, being

action which he would be entitled to take if it were such property, and

believing and having 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, and to the extent that, the loss or damage results from his own

negligence.

[Ch0803s10]10. Further orders of court

(1) When the High Court makes a restraining order,

or at any subsequent time, either of its own motion or on application made to

it by the Director of Public Prosecutions, the defendant or, with leave of the

court by any other person, as appropriate, it may-

(a) vary

the property to which the order is to apply;

(b) vary

any condition or exception subject to which the order is made;

(c) order

the examination of the defendant, or any other person, whether affected by the

order or not, before the High Court, or before any specified person, concerning

the nature and location of any property to which the order relates; or

(d) make or

vary any order relating to any undertaking given in accordance with section

8(8).

(2) Any statement or disclosure made by a person

in answer to questions put to him in the court of an examination referred to in

subsection (1)(c) shall be admissible against him in any civil

proceeding, any proceeding relating to the giving of false testimony in the

course of the examination, or any proceeding for the making of a confiscation

order for the purpose only of assessing the value of the benefit to the person

from the proceeds of the serious offence or offences, but shall not otherwise

be admissible in evidence against him.

[Ch0803s11]11. Discharge of restraining order

(1) A restraining order shall be deemed to be

discharged-

(a) if the

proceedings against the defendant in respect of the serious offence giving rise

to it are discontinued, or if the defendant is not charged with the serious

offence within a week of the making of the order;

(b) if a

confiscation order is made against the defendant in respect of the same serious

offence to which the restraining order relates; or

(c) if a

confiscation order is not applied for within the period specified in section

3(2).

(2) The High Court may, on application by the

defendant, discharge a restraining order if the defendant gives security or

undertakings of the kind referred to in section 8(8).

(3) Where a restraining order is made in respect

of more than one offence, and the proceedings against the defendant in respect

of one or some of the offences are discontinued, or if he is not charged with

all of the offences within the period specified in subsection 1(a), the

order shall be discharged only in relation to the offence or offences so

discontinued or not so charged.