Mutual Assistance In Criminal Matters - Assistance In Relation To Search And Seizure (Ss 11-12)

Link to law: http://www.elaws.gov.bw/desplaylrpage1.php?id=486

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[Ch0804s11]11. Requests by Botswana for search and seizure

(1)

This section shall apply to a proceeding or investigation relating to a

criminal matter involving a serious offence against the laws of Botswana if

there are reasonable grounds to believe that a thing relevant to the proceeding

or investigation may be located in a foreign country to which this Act applies.

(2)

Where this section applies to a proceeding or investigation, the Director of

Public Prosecutions may request an appropriate authority of the foreign country

to obtain a warrant or other instrument authorising a search for a thing

relevant to the proceeding or investigation and, if such a thing, or any other

thing that is or may be relevant to the proceeding or investigation, as the

case may be, is found pursuant to such a search, authorising the seizure of

that thing.

(3) A

request shall be accompanied by an affidavit by a person verifying the grounds

on which the request is made.

[Ch0804s12]12. Requests by foreign countries for search

and seizure

(1)

Where-

(a) a proceeding or investigation relating to a

criminal matter involving a serious offence has commenced in a foreign country;

(b) there are reasonable grounds to believe

that a thing relevant to the investigation or proceeding is located in

Botswana; and

(c) the foreign country requests the Director

of Public Prosecutions to arrange for the issue of a search warrant under this

section in relation to that thing,

the Director of Public Prosecutions may authorise a police officer, in

writing, to apply to a magistrate in the district in which that thing is

believed to be located for the search warrant requested by the foreign country.

(2)

Where a police officer authorised under subsection (1) has reason to believe

that the thing to which the request relates is, or will, at a specified time,

be-

(a) on a person;

(b) in the clothing that is being worn by a

person; or

(c) otherwise in a person's immediate control,

the police officer may-

(i) lay before a magistrate an information on

oath setting out the grounds for that belief; and

(ii) apply for the issue of a warrant under

this section to search the person for that thing.

(3)

Where an application is made under subsection (2), the magistrate may, subject

to subsection (6), issue a warrant authorising a police officer (whether or not

named in the warrant), with such assistance, and by such force, as is necessary

and reasonable-

(a) to search the person for the thing; and

(b) to seize any thing found in the course of

the search that the police officer believes, on reasonable grounds, to be

relevant to the proceeding or investigation.

(4)

Where a police officer authorised under subsection (1) has reason to believe

that the thing to which the request relates is, or will, at a specified time,

be, upon any land, or upon or in any premises, the police officer may-

(a) lay before a magistrate an information on

oath setting out the grounds for that belief; and

(b) apply for the issue of a warrant under this

section to search the land or premises for that thing.

(5)

Where an application is made under subsection (4), the magistrate may, subject

to subsection (6), issue a warrant authorising a police officer (whether or not

named in the warrant), with such assistance, and by such force, as is necessary

and reasonable-

(a) to enter upon the land, or upon or into the

premises;

(b) to search the land or premises for the

thing; and

(c) to seize any thing found in the course of

the search that the police officer believes, on reasonable grounds, to be

relevant to the proceeding or investigation.

(6) A

magistrate shall not issue a warrant under this section unless-

(a) the informant or some other person has

given to him either orally or by affidavit, such further information, if any,

as he requires concerning the grounds on which the issue of the warrant is

sought; and

(b) he is satisfied that there are reasonable

grounds for issuing the warrant.

(7)

There shall be stated in a warrant issued under this section-

(a) the purpose for which the warrant is

issued, including a reference to the nature of the criminal matter in relation

to which the search is authorised;

(b) whether the search is authorised at any

time of the day or night or during specified hours of the day or night;

(c) a description of the kind of things

authorised to be seized; and

(d) a day, not being later than one month after

the issue of the warrant, on which the warrant ceases to have effect.

(8)

If, in the course of searching, under a warrant issued under this section, for

a thing of a kind specified in the warrant, the police officer finds another

thing that he believes on reasonable grounds-

(a) to be relevant to the proceeding or

investigation in the foreign country or to afford evidence as to the commission

of a criminal offence; and

(b) is likely to be concealed, lost or

destroyed if it is not seized,

the warrant shall be deemed to authorise him to seize the other thing.

(9)

Where a police officer finds, as a result of a search in accordance with a

warrant issued under this section, a thing which he seizes wholly or partly

because he believes the thing on reasonable grounds to be relevant to the

proceeding or investigation in the foreign country, he shall deliver the thing

into the custody and control of the Commissioner of Police.

(10)

Where a thing is delivered into the custody and control of the Commissioner of

Police under subsection (9), the Commissioner shall arrange for the thing to be

kept for a period not exceeding one month from the day on which the thing was

seized pending a direction in writing from the Director of Public Prosecutions

as to the manner in which the thing is to be dealt with (which may include a

direction that the thing be sent to an authority of a foreign country).

(11)

A police officer who executes a search warrant issued under subsection (3) or

(5) shall, as soon as practicable after the execution of the warrant, give to

the person, or give to the owner or occupier of the land or premises or leave

in a prominent position on the land or at the premises, as the case requires, a

notice setting out-

(a) the name and rank of the police officer;

(b) the name of the magistrate who issued the

warrant and the day on which it was issued; and

(c) a description of any things seized and

removed in accordance with the warrant.

(12)

A police officer acting in accordance with a warrant issued under subsection

(3) may remove, or require a person to remove, any of the clothing that the

person is wearing but only if the removal of the clothing is necessary and

reasonable for an effective search of the person under the warrant.

(13)

A person shall not be searched under a warrant issued under subsection (3)

except by a person of the same sex.

(14)

Where a police officer is authorised, under a warrant issued under subsection

(3), to search a person, the police officer may also search-

(a) the clothing that is being worn by the

person; and

(b) any property in, or apparently in, the

person's immediate control.