Proceeds Of Serious Crime - Confiscation Orders (Ss 3-7)

Link to law: http://www.elaws.gov.bw/desplaylrpage1.php?id=1482

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PART II
Confiscation Orders (ss 3-7)

[Ch0803s3]3. Application for confiscation order

(1) Where a person has been convicted of a serious

offence, the Director of Public Prosecution may apply to the court before which

the conviction was obtained, or to the High Court, for a confiscation order in

respect of that serious offence, or, if convictions were obtained for more than

one serious offence, in respect of all or any of those offences.

(2) An application under subsection (1) shall be

made within 12 months of the date of the conviction for the offence in respect

of which it is made.

[Ch0803s4]4. Decision of court in respect of application for confiscation

order

(1) Where an application is made under section 3,

the court shall satisfy itself that the defendant in the case concerned has

received the proceeds, as defined in section 2(5), of the serious offence or

offences in respect of which the application is made, and if it decides that he

has, shall proceed to assess the value of the proceeds received by him:

Provided that in making such assessment where more

than one serious offence is involved, the court shall make an assessment of the

proceeds received by the defendant in respect of each offence separately.

(2) For the purpose of making an assessment under

subsection (1), the court may-

(a) treat

any property which the court is satisfied was held by the defendant since his

conviction for the offence in respect of which the application is made, or was

transferred to him at any time within a period of 5 years prior to the date

when he was charged with that offence, or, in the case of a serious offence of

which he is deemed to have been convicted by virtue of section 2(4), within a

period of 5 years prior to the date when he was so convicted, as having been

received by him as payment or reward in connection with the commission of the

offence;

(b) treat

any payment, reward or pecuniary advantage as having been received or derived

by him, notwithstanding that it was received or derived by another person at

the request or at the direction of the defendant, or that it was received or

derived by him or so received or derived by that other person before the

commencement of this Act, or outside Botswana;

(c) treat

any property vested in any trustee or receiver by reason of the defendant's

bankruptcy, as continuing to be the defendant's property;

(d) treat

property as being held by the defendant if he holds an interest in it, or as

having been transferred to him if an interest in the property has been

transferred or granted to him;

(e) disregard

any expenses or outgoings of the defendant in connection with the offence or

any other serious offence.

(3) For the purpose of making an assessment under

this section, the court may treat as property of the defendant any property

that, in the opinion of the court, is subject to the effective control of the

defendant, whether or not the defendant has any legal or equitable estate or

interest in it, or any right, power or privilege in connection with it.

(4) Without limiting the generality of subsection

(3), the court may have regard to-

(a) shareholdings

in, debentures over or directorships of any company that has an interest

(whether direct or indirect) in the property;

(b) any

trust that has a relationship to the property; and

(c) family,

domestic and business relationships between persons having an interest in the

property, or in companies of the kind referred to in paragraph (a), or

trusts of the kind referred to in paragraph (b), and any other person or

persons.

(5) For the purpose of satisfying itself in accordance

with subsection (1) in respect of a serious offence, the court may have regard

to the transcript of any proceedings against the defendant for the offence or

offences.

(6) For the purpose of making an assessment under

this section, the court shall value property, other than money, at its market

value determined as at the date when the court makes the assessment, and when

any person other than the defendant holds an interest in the property, the

value of that interest shall be taken into account in determining the value of

the property to the defendant.

[Ch0803s5]5. Issue of confiscation order

(1) When a court has satisfied itself in

accordance with section 4 that the defendant has received or derived any

benefit from proceeds of a serious offence, it shall issue an order (in this

Act referred to as a "confiscation order") ordering the defendant to

pay to the Government a pecuniary penalty of an amount equal to its own

assessment of the value of the proceeds of the offence, received by the

defendant or from which he has benefited, unless the court for good reason

decides that the penalty shall be for a lesser amount.

(2) The penalty ordered under subsection (1)

shall, for all purposes, be deemed to be a civil debt owed by the defendant to

the Government, and may be enforced as if it were an order made by the court in

civil proceedings instituted by the Government against the defendant to recover

a debt due by him to the Government.

(3) A confiscation order following the conviction

of the defendant may be issued before or after the court trying the offence or

offences has passed sentence:

Provided that-

(a) where a

confiscation order is made before sentence has been passed, the court in

passing sentence shall take into account the total value of the confiscation

order when assessing the amount of any fine or order for compensation or

restitution to be imposed on the defendant; and

(b) where a

confiscation order is made after sentence has been passed, the court in

assessing the size of any such order shall take into account any fine or order

for compensation or restitution passed by the court which sentenced the

defendant.

[Ch0803s6]6. Issue of confiscation order to victim of offence

(1) Notwithstanding the provisions of section 5

the court, instead of issuing a confiscation in favour of the Government, may

on the application of the victim of the offence make the confiscation order in

favour of the victim of the offence.

(2) A confiscation order made under this section

shall be deemed to be an exercise of the civil jurisdiction of the court in an

action between the victim of the offence as plaintiff and the offender as

defendant and may be enforced as if it were an order made by the court in civil

proceedings instituted by the plaintiff against the defendant to recover a debt

due by him to the plaintiff.

[Ch0803s7]7. Discharge of confiscation order

(1) A confiscation order made against the

defendant shall be discharged-

(a) on the

satisfaction of the pecuniary penalty;

(b) where

the conviction or the confiscation order is set aside on appeal or where a free

pardon is granted by the President in respect of the conviction.

(2) Where a confiscation order is made in respect

of a conviction for more than one offence, and the successful appeal or the

free pardon is not in respect of all of the offences, the confiscation order

shall not be discharged, but the amount of the pecuniary penalty under the

order shall be deemed to be reduced by the amount attributable to the offence

or offences the conviction for which has ceased to have effect.