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
(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
the serious offence or offences in respect of which the application is made;
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;
the property which the officer reasonably believes to represent the proceeds
received or derived by the defendant from the said commission; and
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-
described in the order, being property-
the defendant or
in connection with, or derived from, the commission of the offence and held by
any person, other than the defendant in the order; or
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
(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
[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-
the property to which the order is to apply;
any condition or exception subject to which the order is made;
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
(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
(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
(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.