Mutual Assistance In Criminal Matters - Arrangements For Persons To Give Evidence Or Assist Investigations (Ss 13-23)

Link to law: http://www.elaws.gov.bw/desplaylrpage1.php?id=492

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[Ch0804s13]13. Requests for removal of certain persons to

Botswana

(1)

Where-

(a) a proceeding relating to a criminal matter

has commenced in Botswana; and

(b) the Director of Public Prosecutions is of

the opinion that a person who is in a foreign country to which this Act

applies-

(i) is a foreign prisoner;

(ii) is capable of giving evidence relevant to

the proceeding; and

(iii) has given his consent to being removed to

Botswana for the purpose of giving evidence in the proceeding,

the Director of Public Prosecutions may request the foreign country to

authorise the attendance of the person at a hearing in connection with the

proceeding.

(2)

Where-

(a) an investigation relating to a criminal

matter has commenced in Botswana; and

(b) the Director of Public Prosecutions is of

the opinion that a person who is in a foreign country to which this Act

applies-

(i) is a foreign prisoner;

(ii) is capable of giving assistance in

relation to the investigation; and

(iii) has given his consent to being removed to

Botswana for the purposes of giving assistance in relation to the

investigation,

the Director of Public Prosecutions may request the foreign country to

authorise the removal of the person to Botswana for the purpose of giving

assistance in relation to the investigation.

(3)

Where the Director of Public Prosecutions makes a request under subsection (1)

or (2), he may make arrangements with an appropriate authority of the foreign

country for the purposes of-

(a) the removal of the person to Botswana;

(b) the custody of the person while in

Botswana;

(c) the return of the person to the foreign

country; and

(d) other relevant matters.

[Ch0804s14]14. Custody of certain persons

Where-

(a) a person is to be brought to Botswana from

a foreign country pursuant to a request under section 13; and

(b) the foreign country requests that the

person be kept in custody while he is in Botswana,

the person shall, while he is in Botswana or travelling to or from

Botswana pursuant to the request, be kept in such custody as the Director of

Public Prosecutions directs in writing.

[Ch0804s15]15. Immunities

(1)

Where a person is in Botswana-

(a) pursuant to a request under section 13; or

(b) to give evidence in a proceeding, or to

give assistance in relation to an investigation, pursuant to a request made by

or on behalf of the Director of Public Prosecutions (not being a request under

section 13) for international assistance in a criminal matter,

the person, subject to subsection (2), shall not-

(i) be detained, prosecuted or punished in Botswana for any offence

that is alleged to have been committed, or that was committed, before his

departure from the foreign country pursuant to the request;

(ii) be subjected to any civil suit in respect of any act or omission

of his that is alleged to have occurred, or that occurred, before the person's

departure from the foreign country pursuant to the request; or

(iii) be required to give evidence in any proceeding in Botswana other

than the proceeding to which the request relates, if any.

(2)

Subsection (1) shall cease to apply to a person if-

(a) he has left Botswana; or

(b) he has had the opportunity of leaving

Botswana and has remained in Botswana otherwise than for-

(i) the purpose to which the request relates;

(ii) the purpose of giving evidence in a

proceeding in Botswana certified by the Director of Public Prosecutions, in

writing, to be a proceeding in which it is desirable that he gives evidence; or

(iii) the purpose of giving assistance in

relation to an investigation in Botswana certified by the Director of Public

Prosecutions, in writing, to be an investigation in relation to which it is

desirable that he gives assistance.

(3) A

certificate given by the Director of Public Prosecutions for the purposes of

subsection (2)(b)(ii) or (iii) has effect from the day specified in the

certificate (which may be a day before the day on which the certificate is

given).

(4)

This section binds the State.

[Ch0804s16]16. Status of person prosecuted for offence

committed after departure from foreign country

(1)

Where a person has come to Botswana pursuant to a request by Botswana under

section 13 he shall be taken, for the purposes of this Act, to be in Botswana

pursuant to the request during any period during which he remains in Botswana

for the purpose of being tried for a criminal offence under the laws of

Botswana that he is alleged to have committed after his departure from the

foreign country.

(2)

Without limiting the generality of subsection (1), the person shall be kept in

such custody as the Director of Public Prosecutions directs under section 14.

[Ch0804s17]17. Limitation on use of evidence given by

certain persons

(1)

Where-

(a) a person is in Botswana-

(i) pursuant to a request under section 13;

or

(ii) to give evidence in a proceeding, or to

give assistance in relation to an investigation, pursuant to a request made by

or on behalf of the Director of Public Prosecutions (not being a request under

section 13) for international assistance in a criminal matter; and

(b) he has given evidence in the proceeding to

which the request related or in a proceeding certified by the Director of

Public Prosecutions under section 15(2)(b)(ii) in relation to him,

that evidence shall not be admitted or otherwise used in any prosecution

of him for an offence against the laws of Botswana, other than the offence of

perjury in relation to the giving of that evidence.

(2)

This section binds the State.

[Ch0804s18]18. Release of certain persons upon request by

foreign country

Where-

(a) a person is being held in custody in

accordance with a direction of the Director of Public Prosecutions under

section 14; and

(b) the foreign country from which he has been

brought requests his release from custody,

the Director of Public Prosecutions shall direct that he be released from

custody.

[Ch0804s19]19. Escaping

Any

person who escapes from lawful custody while in Botswana pursuant to a request

under section 13 shall be guilty of an offence and liable to imprisonment for a

term not exceeding two years.

[Ch0804s20]20. Arrest of person who has escaped from

custody

(1)

Any police officer may, without warrant, arrest a person, if he has reasonable

grounds to believe that the person-

(a) has been brought to Botswana pursuant to a

request under section 13; and

(b) has escaped from lawful custody while in

Botswana pursuant to the request.

(2) A

person who has been arrested pursuant to subsection (1) shall be returned to

custody in accordance with this Act.

[Ch0804s21]21. Requests for giving of evidence at hearings

in foreign countries

(1)

Where-

(a) a proceeding relating to a criminal matter

has commenced in a foreign country;

(b) the foreign country requests the attendance

at a hearing in connection with the proceeding of a prisoner who is in Botswana

(whether or not in custody);

(c) there are reasonable grounds to believe

that the prisoner is capable of giving evidence relevant to the proceeding; and

(d) the Director of Public Prosecutions is

satisfied that-

(i) the prisoner has consented to giving

evidence in the foreign country; and

(ii) the foreign country has given adequate

undertakings in respect of the matters referred to in subsection (3),

the President may direct that the prisoner be released from prison for

the purpose of travelling to the foreign country in the custody of a police

officer or prison officer appointed by the Director of Public Prosecutions to

give evidence at the proceeding.

(2)

Where-

(a) a proceeding relating to a criminal matter

has commenced in a foreign country;

(b) the foreign country requests the attendance

at a hearing in connection with the proceeding of a person who is in Botswana;

(c) there are reasonable grounds to believe

that the person is capable of giving evidence relevant to the proceeding; and

(d) the Director of Public Prosecutions is

satisfied that-

(i) the person has consented to giving

evidence in the foreign country, and

(ii) that country has given adequate

undertakings in respect of the matters referred to in subsection (3),

the Director of Public Prosecutions may make arrangements for the travel

of the person to the foreign country.

(3)

The matters in relation to which undertakings are to be given by a foreign

country for the purpose of a request that a person give evidence in the foreign

country are-

(a) that he shall not-

(i) be detained, prosecuted or punished for

any offence against the law of the foreign country that is alleged to have been

committed, or that was committed, before his departure from Botswana;

(ii) be subjected to any civil suit in respect

of any act or omission of the person that is alleged to have occurred, or that

occurred, before his departure from Botswana; or

(iii) be required to give evidence in any

proceeding in the foreign country other than the proceeding to which the

request relates,

unless he has

left the foreign country and returned voluntarily; or he has had the

opportunity of leaving the foreign country and has voluntarily remained in that

country otherwise than for the purpose of giving evidence in the proceeding to

which the request relates;

(b) that any evidence given by him in the

proceeding to which the request relates will be inadmissible or otherwise

disqualified from use in the prosecution of him for an offence against a law of

the foreign country other than the offence of perjury in relation to the giving

of that evidence;

(c) that he will be returned to Botswana in

accordance with arrangements agreed by the Director of Public Prosecutions;

(d) in a case where he is being held in custody

in Botswana and the Director of Public Prosecutions requests the foreign

country to make arrangements for his keeping him in custody while he is in the

foreign country-

(i) the making of appropriate arrangements

for that purpose;

(ii) that he will not be released from custody

in the foreign country unless the Director of Public Prosecutions notifies an

appropriate authority of the foreign country that he is entitled to be released

from custody under the laws of Botswana; and

(iii) if he is released in the foreign country

as mentioned in subparagraph (ii), that his accommodation and expenses pending

the completion of the proceeding to which the request relates will be paid for

by the foreign country; and

(e) such other matters, if any, as the Director

of Public Prosecutions thinks appropriate.

[Ch0804s22]22. Requests for assistance in relation to

investigations in foreign countries

(1)

Where-

(a) an investigation relating to a criminal

matter has commenced in a foreign country;

(b) the foreign country requests the removal of

a prisoner who is in Botswana (whether or not in custody) to the foreign

country for the purpose of giving assistance in relation to the investigation;

(c) there are reasonable grounds to believe

that the prisoner is capable of giving assistance in relation to the

investigation; and

(d) the Director of Public Prosecutions is

satisfied that-

(i) the prisoner has consented to being

removed to the foreign country for the purpose of giving assistance in relation

to the investigation; and

(ii) the foreign country has given adequate

undertakings in respect of the matters referred to in subsection (3),

the President may direct that the prisoner be released from prison for

the purpose of travelling to the foreign country in the custody of a police

officer or prison officer appointed by the Director of Public Prosecutions to

give assistance in relation to the investigation.

(2)

Where-

(a) an investigation relating to a criminal

matter has commenced in a foreign country;

(b) the foreign country requests that a person

who is in Botswana travel to the foreign country to give assistance in relation

to the investigation;

(c) there are reasonable grounds to believe

that he is capable of giving assistance in relation to the investigation; and

(d) the Director of Public Prosecutions is

satisfied that-

(i) he has consented to travel to the foreign

country for the purpose of giving assistance in relation to the investigation;

and

(ii) the foreign country has given adequate

undertaking in respect of the matters referred to in subsection (3),

the Director of Public Prosecutions may make arrangements for him to

travel to the foreign country.

(3)

The matters in relation to which undertakings are to be given by a foreign

country for the purpose of a request that a person be removed to, or travel to,

the foreign country for the purpose of giving assistance in relation to an

investigation are-

(a) that he shall not-

(i) be detained, prosecuted or punished for

any offence against the law of the foreign country that is alleged to have been

committed, or that was committed, before the person's departure from Botswana;

(ii) be subjected to any civil suit in respect

of any act or omission of his that is alleged to have occurred, or that

occurred, before his departure from Botswana; or

(iii) be required to give evidence in any

proceeding in the foreign country,

unless he has

left the foreign country, and returned voluntarily or he has had the

opportunity of leaving the foreign country and has voluntarily remained in that

country otherwise than for the purpose of giving assistance in relation to the

investigation to which the request relates;

(b) that he will be returned to Botswana in

accordance with arrangements agreed by the Director of Public Prosecutions;

(c) in a case where he is being held in custody

in Botswana and the Director of Public Prosecutions requests the foreign

country to make arrangements for keeping him in custody while he is in the

foreign country-

(i) the making of appropriate arrangements

for that purpose;

(ii) that he will not be released from custody

in the foreign country unless the Director of Public Prosecutions notifies an

appropriate authority of the foreign country that he is entitled to be released

from custody under the laws of Botswana; and

(iii) if he is released in the foreign country

as mentioned in subparagraph (ii), that his accommodation and expenses pending

the completion of the investigation to which the request relates will be paid

for by the foreign country; and

(d) such other matters, if any, as the Director

of Public Prosecutions thinks appropriate.

[Ch0804s23]23. Effect of removal to foreign country on

prisoner's term of imprisonment

Where

a prisoner who is serving a term of imprisonment for an offence against a law

in Botswana is released from a prison pursuant to a request by a foreign

country under section 21 or 22, the prisoner shall, while in custody in

connection with the request (including custody outside Botswana), be deemed to

be continuing to serve that term of imprisonment.