Drug Trafficking Offences Act


Published: 1995-03-09

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I ASSENT Drug Trafficking Offences
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
1995-06


DRUG TRAFFICKING OFFENCES ACT

Principal Act

Act. No. 1995-06 Commencement
LN. 1995/029
LN. 1995/044 (Variation to
notice 1995/029)
ss.2, 68(1)(a), (d) and (e) and
Part IV




9.3.1995
LN. 1995/039
ss.3-36, 46-47, 54-67 and 69

20.3.1995
LN. 1997/046
ss 37 to 45 and Schedule.

24.4.1997
LN. 1999/055
s. 68(1)(c),(2) and (3).

13.5.1999
Assent 9.3.1995


Amending
Enactments
Relevant current
provisions
Commencement
date
LN. 1996/009 s. 60(2) 18.1.1996
Act. 1998-49


ss. 2(1)(2), 26(1), 27(3), 30(3) and
(7), 60(2), (5), (6), (7), (8), (9)
and (10) and 68


10.12.1998
2001-09 s. 43A 5.4.2001
2007-17 ss. 37(1), (2),(5) 38(1), 39(2),
40(2) & (3) 41(1), (2)(b),
42(1)(b), 42(2), 43(3), (4),
43A(10), (11), Sch.



14.6.2007
2014-14 ss. 2(20), 7(4)(b), (5), 16(2)(a),
33(1)(a), (2), (3), (4), (5), (7),
34(1), (2), (4), 35(1), (2)


1.11.2014
2015-22 ss. 54-59 28.1.2016


English sources:
Police and Criminal Evidence Act 1984 (c.60)
(ss. 10, 11, 12 and 13 )
Drug Trafficking Act 1994 (c. 37)
( ss. 1(1), 1(2), 1(3), 1(4), 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17,
18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, 42, 43,
44, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 59 and 61)

Drug Trafficking Offences
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
1995-06
EU Legislation/International Agreements involved:
Directive 91/308/EEC.
Drug Trafficking Offences
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
1995-06
Drug Trafficking Offences
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
1995-06


ARRANGEMENT OF SECTIONS.

Section
1. Title and commencement.

PART I.
PRELIMINARY.

2. Interpretation and application.

PART II.
CONFISCATION ORDERS.

3. Confiscation orders.
4. Postponed determinations.
5. Assessing the proceeds of drug trafficking.
6. Amount to be recovered under confiscation order.
7. Meaning of “amount that might be realised” and “realisable property”.
8. Value of property, etc.
9. Gifts caught by this Act.
10. Application of procedure for enforcing fines.
11. Interest on sums unpaid under confiscation orders.
12. Reconsideration of case where the court has not proceeded under
section 3.
13. Re-assessment of whether defendant has benefited from drug
trafficking.
14. Increase in realisable property.
15. Revised assessment of proceeds of drug trafficking.
16. Inadequacy of realisable property.
17. Compensation.
18. Powers of the court where defendant has absconded or died.
19. Effect of conviction where the court has acted under section 18.
20. Variation of confiscation orders made by virtue of section 18.
21. Compensation, etc. where absconder is acquitted.
22. Power to discharge confiscation order and order compensation where
absconder returns.
23. Provisions supplementary to sections 20, 21and 22.
24. Statements relating to drug trafficking.
25. Provision of information by defendant.
26. Cases in which restraint orders and charging orders may be made.
27. Restraint orders.
28. Charging orders in respect of land, securities ,etc.
29. Charging orders; supplementary provisions.
30. Realisation of property.
31. Application of process of realisation and other sums.
Drug Trafficking Offences
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1995-06
32. Exercise by the court or receiver of powers for the realisation of
property.
33. Bankruptcy of defendant , etc.
34. Liquidation or Administration of company holding realisable property.
35. Persons acting as insolvency practitioners.
36. Receivers; supplementary provisions.

PART III.
MUTUAL LEGAL ASSISTANCE.

37. Service of overseas process in Gibraltar.
38. Service of Gibraltar process overseas.
39. Overseas evidence for use in Gibraltar.
40. Gibraltar evidence for use overseas.
41. Transfer of Gibraltar prisoner to give evidence or assist investigation
overseas.
42. Transfer of overseas prisoner to give evidence or assist investigation
in Gibraltar.
43. Search, etc., for material relevant to overseas investigation.
43A.
44. Enforcement of overseas forfeiture orders.
45. Rules of court.
46. Enforcement of external orders.
47. Registration of external confiscation orders.

PART IV.
DRUG TRAFFICKING MONEY IMPORTED OR
EXPORTED IN CASH.

48. Seizure and detention.
49. Forfeiture.
50. Appeal against forfeiture order made by the magistrates’ court.
51. Rules of court.
52. Receipts.
53. Interpretation of Part IV.

54-59 Repealed

PART VI.
MISCELLANEOUS AND SUPPLEMENTAL.

60. Order to make material available.
61. Authority for search.
62. Access and copying.
63. Retention.
64. Disclosure of information held by the Crown.
65. Offence of prejudicing investigation.
Drug Trafficking Offences
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1995-06
66. Extension of certain offences to Crown servants and exemptions for
regulators, etc.
67. Authorisation of delay in notifying arrest.
68. Power to make regulations.
69. Repeal of the Drug Trafficking Offences Act,1988.



SCHEDULE

Gibraltar evidence for use overseas: proceedings of nominated court.
Drug Trafficking Offences
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
1995-06
Drug Trafficking Offences
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
1995-06
AN ACT TO CONSOLIDATE AND AMEND THE DRUG
TRAFFICKING OFFENCES ACT 1988 AND TO GIVE, IN PART,
EFFECT TO THE CONVENTION AGAINST ILLICIT TRAFFIC IN
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES WHICH
WAS SIGNED IN VIENNA ON THE 20TH OF DECEMBER, 1988 AND
COUNCIL DIRECTIVE 91/308/EEC.

Title and commencement.

1. (1) This Act may be cited as the Drug Trafficking Offences Act, 1995
and shall come into effect on such day as the Governor may, by notice in the
Gazette, appoint and different days may be so appointed for different
purposes and such notice may contain such transitional or other incidental
and supplementary provisions as may appear to the Governor necessary or
expedient.

(2) Without prejudice to any provision which applies “whether before or
after the commencement of this Act” nothing in this Act applies to any
offence committed, or alleged to have been committed, or any proceedings
instituted before the coming into effect of this Act and notwithstanding that
references in this Act to offences include references to offences committed
before the commencement of section 3, nothing in this Act imposes any
duty or confers any powers on any court in or in connection with any
proceedings against a person for a drug trafficking offence instituted before
the commencement of that section.


PART I.
PRELIMINARY.

Interpretation and application.

2. (1) In this Act, unless the context shall otherwise require–

“acting as an insolvency practitioner” includes a trustee in bankruptcy or
interim receiver of an insolvent person, a trustee under a deed of
arrangement made for the benefit of the creditors, a liquidator,
administrator or receiver in the winding up of a company and any
other person acting in a similar capacity;

“amount that might be realised” has the meaning given to it in section
7(1);

“benefitted from drug trafficking” has the meaning given to it in section
3(3);

Drug Trafficking Offences
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1995-06
“charging order” is an order made under section 28, imposing on any
realisable property as may be specified in the order a charge for
securing the payment of money to the Crown;

“confiscation order” means an order made under section 3 and includes,
in particular, such an order made by virtue of section 12, 13 or 18;

“Convention state” means a state outside Gibraltar which is a party to the
Vienna Convention;

“corresponding law” has the same meaning as in the Drugs (Misuse) Act;

“the court” means the Supreme Court;

“defendant” means a person against whom proceedings have been
instituted for a drug trafficking offence (whether or not he has been
convicted);

“gift caught by this Act” has the meaning given to it in section 9;

“judge” means the Chief Justice or an additional judge of the Supreme
Court;

“making a gift” has the meaning given to it in section 9(2);

“modifications” includes additions, alterations and omissions;

“premises” includes any place and, in particular, includes–

(a) any vehicle, vessel, aircraft or hovercraft;

(b) any offshore installation; and

(c) any tent or moveable structure;

“proceeds of drug trafficking” has the meaning given to it in section
5(1)(a);

“realisable property” has the meaning given to it in section 7(2) and (3);

“restraint order” has the meaning given to it in section 27(1);

“satisfied”, in relation to a confiscation order, has the meaning
given to it in subsection (16)(b) and in section 33;

Drug Trafficking Offences
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1995-06
“Scheduled Substance” means a substance for the time being specified in
Schedule 4 to the Drugs (Misuse) Act 1 ;

“subject to appeal” – an order is subject to appeal until, disregarding any
power of a court to grant leave to appeal out of time, there is no
further possibility of an appeal on which the order could be varied
or set aside;

“value of gift, payment or reward” has the meaning given to it in section
8(1);

“value of proceeds of drug trafficking” has the meaning given to it in
section 5(1)(b);

“value of property” has the meaning given to it in section 8(1);

“Vienna Convention” means the United Nations Convention Against
Illicit Traffic in Narcotic Drugs and Psychotropic Substances which
was signed in Vienna on the 20th of December, l988.

(2) In this Act, “drug trafficking” means, subject to subsection (3), doing
or being concerned in any of the following, whether in Gibraltar or
elsewhere–

(a) producing or supplying a controlled drug where the production
or supply contravenes section 6(1) of the Drugs (Misuse) Act
or a corresponding law;

(b) transporting or storing a controlled drug where possession of
the drug contravenes section 7(1) of that Act or a
corresponding law;

(c) importing or exporting a controlled drug where the importation
or exportation is prohibited by section 5(1) of that Act or a
corresponding law;

(d) manufacturing or supplying a Scheduled Substance within the
meaning of section 14 of that Act where the manufacture or
supply is an offence under that section or would be such an
offence if it took place in Gibraltar.

(e) using any ship for illicit trafficking of a controlled drug in
circumstances which amount to the commission of an offence
under section 17 of that Act;

1 1973-06
Drug Trafficking Offences
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
1995-06
(f) conduct which is an offence under section 54 or which would
be such an offence if it took place in Gibraltar;

(g) acquiring, having possession of or using property in
circumstances which amount to the commission of an offence
under section 56 or would be such an offence if it took place in
Gibraltar.

(3) In this Act, “drug trafficking” also includes a person doing the
following whether in Gibraltar or elsewhere, that is to say, entering into or
being otherwise concerned in an arrangement whereby–

(a) the retention or control by or on behalf of another person of the
other person’s proceeds of drug trafficking is facilitated; or

(b) the proceeds of drug trafficking by another person are used to
secure that funds are placed at the other person’s disposal or
are used for the other person’s benefit to acquire property by
way of investment.

(4) In this Act, “drug trafficking offence” means any of the following–

(a) an offence under section 6(2) or (3) or 7(3) of the Drugs
(Misuse) Act;

(b) an offence under section 24 of the Drugs (Misuse) Act;

(c) an offence under section 15, 80 or 105(iii) or (iv) of the
Imports and Exports Act 2 ;

(d) an offence under section 14 of the Drugs (Misuse) Act;

(e) an offence under section 17 of the Drugs (Misuse) Act;

(f) an offence under section 54, 55 or 56 of this Act;

(g) an offence of conspiracy to commit any of the offences under
paragraphs (a) to (f) of section 11 of the Criminal Offences
Act 3 ;

(h) an offence of attempting to commit any of those offences under
section 7 of the Criminal Offences Act;

2 1986-21
3 1960-17
Drug Trafficking Offences
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1995-06
(j) an offence of inciting or attempting to incite another to commit
any of those offences, whether under section 23 of the Drugs
(Misuse) Act or at common law;

(k) aiding, abetting, counselling or procuring the commission of
any of those offences.

(5) In this Act, “items subject to legal privilege” means–

(a) communications between a professional legal adviser and his
client or any person representing his client made in connection
with the giving of legal advice to the client;

(b) communications between a professional legal adviser and his
client or any person representing his client or between such an
adviser or his client or any such representative and any other
person made in connection with or in contemplation of legal
proceedings and for the purposes of such proceedings; and

(c) items enclosed with or referred to in such communications and
made–

(i) in connection with the giving of legal advice; or

(ii) in connection or in contemplation of legal proceedings
and for the purposes of such proceedings, when they are
in the possession of a person who is entitled to
possession of them.

(6) Items held with the intention of furthering a criminal purpose are not
items subject to legal privilege.

(7) In this Act, subject to subsections (8) and (9) “excluded material”
means–

(a) personal records which a person has acquired or created in the
course of trade, business, profession or other occupation or for
the purposes of any paid or unpaid office and which he holds in
confidence;

(b) human tissue or tissue fluid which has been taken for the
purposes of diagnosis or medical treatment and which a person
holds in confidence;

(c) journalistic material which a person holds in confidence and
which consists–

Drug Trafficking Offences
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1995-06
(i) of documents; or

(ii) of records other than documents.

(8) A person holds material, other than journalistic material in
confidence for the purposes of subsection (7), if he holds it subject –

(a) to an express or implied undertaking to hold it in confidence;
or

(b) to a restriction on disclosure or an obligation of secrecy
contained in any enactment including an enactment contained
in an Act passed after this Act.

(9) A person holds journalistic material in confidence for the purposes
of subsection (7), if–

(a) he holds it, subject to such an undertaking, restriction or
obligation; and

(b) it has been continuously held by one or more persons, subject
to such an undertaking, restriction or obligation, since it was
first acquired or created for the purposes of journalism.

(10) In subsection (7) “personal records” means documentary and other
records concerning an individual (whether living or dead) who can be
identified from them and relating –

(a) to his physical or mental health;

(b) to spiritual counselling or assistance given or to be given to
him; or

(c) to counselling or assistance given or to be given to him, for the
purposes of his personal welfare, by any voluntary organisation
or by any individual who–

(i) by reason of his office or occupation has responsibilities
for his personal welfare; or

(ii) by reason of an order of the court has responsibilities for
his supervision.

(11) For the purposes of subsection (7) “journalistic material” means
material acquired or created for the purposes of journalism and the material
is only journalistic material for the purposes of that subsection if it is in the
Drug Trafficking Offences
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1995-06
possession of a person who acquired or created it for the purposes of
journalism.

(12) A person who receives material from someone who intends that the
recipient shall use it for the purposes of journalism, is to be taken to have
acquired it for those purposes.

(13) Proceedings for an offence are instituted–

(a) when a justice of the peace issues a summons or warrant under
section 107 of the Criminal Procedure Act in respect of the
offence;

(b) when a person is charged with the offence after being taken
into custody without a warrant;

(c) when a bill of indictment is preferred under section 137 of the
Criminal Procedure Act, in a case falling within subsection
(2)(b) of that section,

and where the application of this subsection would result in there being
more than one time for the institution of proceedings, they shall be taken to
have been instituted at the earliest of those times.

(14) Proceedings for a drug trafficking offence are concluded–

(a) when the defendant is acquitted on all counts;

(b) if he is convicted of one or more counts, but the court decides
not to make a confiscation order against him, when it makes
that decision; or

(c) if a confiscation order is made against him in those
proceedings, when the order is satisfied.

(15) An application under section 14 or 15 is concluded–

(a) if the court decides not to vary the confiscation order in
question, when it makes that decision; or

(b) if the court varies the confiscation order as a result of the
application, when the order is satisfied.

(16) An application under section 12, 13 or 18 is concluded–

(a) if the court decides not to make a confiscation order against the
defendant, when it makes that decision; or
Drug Trafficking Offences
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1995-06

(b) if a confiscation order is made against him as a result of that
application when the order is satisfied, and a confiscation order
is satisfied when no amount is due under it.

(17) In this Act, “property” includes money and all other property, real or
personal, heritable or moveable, including things in action and other
intangible or incorporeal property.

(18) This Act applies to property whether it is situated in Gibraltar or
elsewhere.

(19) In this Act, “interest”, in relation to property, includes right.

(20) In this Act–

(a) references to property held by a person include a reference to
property vested in or held by the person’s liquidator,
provisional liquidator, administrator, bankruptcy trustee or
interim receiver appointed under the Insolvency Act 2011 or by
a voluntary liquidator appointed under the Companies Act
2014; and

(b) references to an interest held by a person beneficially in
property include a reference to an interest which would be held
by him beneficially if the property were not so vested.

(21) For the purposes of this Act–

(a) property is held by any person if he holds an interest in it; and

(b) property is transferred by one person to another if the first
person transfers or grants to the other any interest in the
property.

(22) References in this Act to anything received in connection with drug
trafficking include a reference to anything received both in that connection
and in some other connection.


PART II.
CONFISCATION ORDERS.

Confiscation orders.

3. (1) Where a defendant appears before the court to be sentenced in
respect of one or more than one drug trafficking offences, and has not
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1995-06
previously been sentenced or otherwise dealt with in respect of his
conviction for the offence or, as the case may be, any of the offences
concerned, then–

(a) if the prosecutor asks the court to proceed under this section, or

(b) if the court considers that, even though the prosecutor has not
asked it to do so, it is appropriate for it to proceed under this
section,

it shall act as follows.

(2) The court shall first determine whether the defendant has benefitted
from drug trafficking.

(3) For the purposes of this Act, a person has benefitted from drug
trafficking if he has at any time (whether before or after the commencement
of this section) received any payment or other reward in connection with
drug trafficking carried on by him or another person.

(4) If the court determines that the defendant has so benefitted, the court
shall, before sentencing or otherwise dealing with him in respect of the
offence or, as the case may be, any of the offences concerned, determine, in
accordance with section 6, the amount to be recovered in his case by virtue
of this section.

(5) The court shall then, in respect of the offence or the offences
concerned–

(a) order the defendant to pay that amount;

(b) take account of the order before–

(i) imposing any fine on him;

(ii) making any order involving any payment by him; or

(iii) making any order under section 28 of the Drugs (Misuse)
Act or section 123 or 124 of the Imports and Exports Act
or section 248 of the Criminal Procedure Act; and

(c) subject to paragraph (b), leave the order out of account in
determining the appropriate sentence or other manner of
dealing with him.

(6) No enactment restricting the power of a court dealing with an
offender in a particular way from dealing with him also in any other way
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1995-06
shall, by reason only of the making of an order under this section, restrict the
court from dealing with an offender in any way the court considers
appropriate in respect of a drug trafficking offence.

(7) The standard of proof required to determine any question arising
under this Act as to–

(a) whether a person has benefitted from drug trafficking, or

(b) the amount to be recovered in his case by virtue of this section,

shall be that applicable in civil proceedings.

Postponed determinations.

4. (1) Where the court is acting under section 3 but considers that it
requires further information before–

(a) determining whether the defendant has benefitted from drug
trafficking, or

(b) determining the amount to be recovered in his case by virtue of
that section,

it may, for the purpose of enabling that information to be obtained, postpone
making the determination for such period as it may specify.

(2) More than one postponement may be made under subsection (1) in
relation to the same case.

(3) Unless it is satisfied that there are exceptional circumstances, the
court shall not specify a period under subsection (1) which–

(a) by itself, or,

(b) where there have been one or more previous postponements
under subsections (1) or (4), when taken together with the
earlier specified period or periods,

exceeds six months beginning with the date of conviction.

(4) Where the defendant appeals against his conviction, the court may,
on that account–

(a) postpone making either or both of the determinations
mentioned in subsection (1) for such period as it may specify;
or
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1995-06

(b) where it has already exercised its powers under this section to
postpone, extend the specified period.

(5) A postponement or extension under subsections (1) and (4) may be
made–

(a) on application by the defendant or the prosecutor; or

(b) by the court of its own motion.

(6) Unless the court is satisfied that there are exceptional circumstances,
any postponement or extension under subsection (4) shall not exceed the
period ending three months after the date on which the appeal is determined
or otherwise disposed of.

(7) Where the court exercises its power under subsection (1) or (4), it
may nevertheless proceed to sentence, or otherwise deal with, the defendant
in respect of the relevant offence or any of the relevant offences.

(8) Where the court has so proceeded, section 3 shall have effect as if–

(a) in subsection (4) of that section, the words from “before
sentencing or otherwise dealing with him in respect of the
offence or, as the case may be, any of the offences concerned”
were omitted; and

(b) in subsection (5)(c) of that section, after the word
“determining” there were inserted “in relation to any offence in
respect of which he has not been sentenced or otherwise dealt
with”.

(9) In sentencing, or otherwise dealing with, the defendant in respect of
the relevant offence or any of the relevant offences at any time during the
specified period, the court shall not–

(a) impose any fine on him; or

(b) make any such order as is mentioned in section 3(5) (b)(ii) or
(iii).

(10) In this section–

“the date of conviction” means–

(a) the date on which the defendant was convicted; or

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(b) where he appeared to be sentenced in respect of one or more
than one conviction and those convictions were not all on the
same date, the date of the latest of those convictions; and

“the relevant offence” means the drug trafficking offence in respect of
which the defendant appears (as mentioned in section 3 (1)) before
the court;

and references to an appeal include references to an application under
section 62 of the Magistrates Court Act.

Assessing the proceeds of drug trafficking.

5.(1) For the purposes of this Act–

(a) any payment or other rewards received by a person at any time
(whether before or after the commencement of this Act) in
connection with drug trafficking carried on by him or another
person are his proceeds of drug trafficking; and

(b) the value of his proceeds of drug trafficking is the aggregate of
the values of the payments or other rewards.

(2) The court shall, for the purpose of determining whether the
defendant has benefitted from drug trafficking and, if he has, of assessing
the value of his proceeds of drug trafficking, make the required assumptions.

(3) The required assumptions are–

(a) that any item of property appearing to the court–

(i) to have been held by the defendant at any time since his
conviction, or

(ii) to have been transferred to him at any time since the
beginning of the period of six years ending when the
proceedings were instituted against him,

was received by him, at the earliest time at which he appears to
the court to have held it, as a payment or reward in connection
with drug trafficking carried on by him;

(b) that any item of expenditure of his, since the beginning of that
period, was met out of payments received by him in connection
with drug trafficking carried on by him; and

Drug Trafficking Offences
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1995-06
(c) that for the purposes of valuing any item of property received
or assumed to have been received by him at any time as such a
reward, he received the property free of any other interests in it.

(4) The court shall not make any one of the required assumptions only to
the extent that–

(a) that assumption is shown to be incorrect in the defendant’s
case:

Provided that the required assumptions may be shown to be
incorrect only to the extent that the defendant shows to the
satisfaction of the court that the property, or, where the
property is not money, the money with which the property was
purchased, has been declared by the defendant to the
Commissioner of Income Tax or to the taxation authority or
authorities in the jurisdiction in which the property is or from
which it came, or, where the property is not liable to tax in the
hands of the defendant, has been so declared by another person
unless the defendant can, by the production of such evidence as
the court may, in its discretion, require, satisfy the court that
the property was not and is not subject to taxation in Gibraltar
or in any other jurisdiction in which the property is or from
which it came; or

(b) the court is satisfied that there would be a serious risk of
injustice in the defendant’s case if the assumption were to be
made.

(5) Subsection (2) does not apply if the only drug trafficking offence in
respect of which the defendant appears before the court to be sentenced is
an offence under section 54, 55 or 56.

(6) Where the court does not make one or more of the required
assumptions, it shall state its reasons.

(7) For the purpose of assessing the value of the defendant’s proceeds of
drug trafficking in a case where a confiscation order has previously been
made against him, the court shall leave out of account any of his proceeds of
drug trafficking that are shown to the court to have been taken into account
in determining the amount to be recovered under that order.

Amount to be recovered under confiscation order.

6. (1) Subject to subsection (3), the amount to be recovered in the
defendant’s case under the confiscation order shall be the amount the court
assesses to be the value of the defendant’s proceeds of drug trafficking.
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(2) If the court is satisfied as to any matter relevant for determining the
amount that might be realised at the time the confiscation order is made
whether by reason of–

(a) the acceptance by the prosecutor or the defendant of an
allegation made in a statement given under section 24; or

(b) information given under section 25; or

(c) a failure to comply with an order under section 25; or

(d) otherwise,

the court may issue a certificate giving the court’s opinion as to the matters
concerned, and shall do so if satisfied as mentioned in subsection (3).

(3) If the court is satisfied that the amount that might be realised at the
time the confiscation order is made is less than the amount the court
assesses to be the value of his proceeds of drug trafficking, the amount to be
recovered in the defendant’s case under the confiscation order shall be–

(a) the amount appearing to the court to be the amount that might
be so realised; or

(b) a nominal amount, whether it appears to the court, on the
information available to it at the time, that the amount that
might be so realised is nil.

Meaning of “amount that might be realised” and “realisable property”.

7.(1) For the purposes of this Act, the amount that might be realised at the
time a confiscation order is made against the defendant is–

(a) the total of the values at that time of all the realisable property
held by the defendant, less

(b) where there are obligations having priority at that time, the
total amount payable in pursuance of such obligations,

together with the total of the values at that time of all gifts caught by this
Act.

(2) In this Act, “realisable property” means, subject to subsection (1)–

(a) any property held by the defendant; and

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(b) any property held by a person to whom the defendant has
directly or indirectly made a gift caught by this Act.

(3) Property is not realisable property if there is in force in respect of it
an order under any of the following enactments, namely–

(a) section 28 of the Drugs (Misuse) Act;

(b) section 248 of the Criminal Procedure Act.

(4) For the purposes of subsection (1), an obligation has priority at any
time if it is an obligation of the defendant–

(a) to pay an amount due in respect of a fine, or other order of a
court, imposed or made on conviction of an offence, where the
fine was imposed or the order was made before the
confiscation order, or

(b) to pay any sum which would be included among the
preferential debts, within the meaning given by subsection (5),
in the defendant’s bankruptcy commencing on the date of the
confiscation order or order appointing a liquidator made on that
date.

(5) For the purposes of subsection (4), “preferential debts” means debts
that are “preferential debts” within the meaning of the Insolvency Act 2011.

Value of property, etc.

8. (1) Subject to the following provisions of this section and to section 9,
for the purposes of this Act the value of property, other than cash, in relation
to any person holding the property is the market value of the property,
except that, where any other person holds an interest in the property, the
value is–

(a) the market value of the first-mentioned person’s beneficial
interest in the property, less

(b) the amount required to discharge any incumbrance, other than a
charging order, on that interest.

(2) Subject to section 9(2), references in this Act to the value at any time
(referred to in subsection (3) as “the material time”) of a gift caught by this
Act or of any payment or reward are references to–

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(a) the value of the gift, payment or reward to the recipient when
he received it, adjusted to take account of subsequent changes
in the value of money, or

(b) where subsection (3) applies, the value there mentioned,

whichever is the greater.

(3) Subject to section 9(2), if at the material time the recipient holds–

(a) the property which he received, not being cash, or

(b) property which, in whole or in part, directly or indirectly
represents in his hands the property which he received,

the value referred to in subsection (2)(b) is the value to him at the material
time of the property mentioned in paragraph (a) or, as the case may be, of
the property mentioned in paragraph (b) so far as it represents the property
which he received, but disregarding in either case any charging order.

(4) References in this section to a charging order include a reference to a
charging order within the meaning of the Drug Trafficking Offences Act,
1988.

Gifts caught by this Act.

9.(1) A gift, including a gift made before the commencement of this Part,
is caught by this Act if–

(a) it was made by the defendant at any time since the beginning of
the period of six years ending when the proceedings were
instituted against him; or

(b) it was made by the defendant at any time and was a gift of
property–

(i) received by the defendant in connection with drug
trafficking carried on by him or another person; or

(ii) which in whole or in part directly or indirectly
represented in the defendant’s hands property received
by him in that connection.

(2) For the purposes of this Act–

(a) the circumstances in which the defendant is to be treated as
making a gift include those where he transfers property to
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another person directly or indirectly for a consideration the
value of which is significantly less than the value of the
consideration provided by the defendant; and

(b) in those circumstances, the provisions of subsection (1) and of
sections 7 and 8 shall apply as if the defendant had made a gift
of such share in the property as bears to the whole property the
same proportion as the difference between the values referred
to in paragraph (a) bears to the value of the consideration
provided by the defendant.

Application of procedure for enforcing fines.

10. (1) Where the court orders the defendant to pay any amount under
section 3, section 191(1)(c) of the Criminal Procedure Act shall have effect
as if that amount were a fine imposed on him by the court, and–

(a) the court shall make an order fixing the term of imprisonment
which he is to undergo if any sum which he is liable to pay is
not duly paid or covered, and

(b) the limitation of the term of imprisonment to one year
contained in the proviso to section 191(1) of the Criminal
Procedure Act shall not apply.

(2) Subject to subsections (3) and (4), the periods set out in the second
column of the following table shall be the maximum periods of
imprisonment under subsection (1) applicable respectively to the amounts
set out opposite thereto.

TABLE


An amount not exceeding £50

7 days
An amount exceeding £400 but not exceeding £1,000

60 days
An amount exceeding £1,000 but not exceeding £2,000

90 days
An amount exceeding £2,000 but not exceeding £5,000

6 months
An amount exceeding £5,000 but not exceeding
£10,000

9 months
An amount exceeding £10,000 but not exceeding
£20,000

12 months
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An amount exceeding £20,000 but not exceeding
£50,000

18 months
An amount exceeding £50,000 but not exceeding
£100,000

2 years
An amount exceeding £100,000 but not exceeding
£250,000

3 years
An amount exceeding £250,000 but not exceeding £1
million

5 years
An amount exceeding £1 million 10 years.

(3) Where the amount due at the time imprisonment is imposed is so
much as remains due after part payment, then, subject to subsection (4), the
maximum period applicable to the amount shall be the period applicable to
the whole sum reduced by such number of days as bears to the total number
of days therein the same proportion as the part paid bears to the total sum.

(4) In calculating the reduction required under subsection (3), any
fraction of a day shall be left out of account and the maximum period shall
not be reduced to less than five days.

(5) Where the defendant serves term of imprisonment in default of
paying any amount due under a confiscation order, his serving that term
does not prevent the confiscation order from continuing to have effect, so far
as any other method of enforcement is concerned.

(6) This section applies in relation to confiscation orders made–

(a) by the court by virtue of section 18,

(b) by the Court of Appeal under Part II of the Court of Appeal
Act, or

(c) by Her Majesty in Council on appeal from the Court of Appeal,

as it applies in relation to confiscation orders made by the court, and the
reference in subsection (1) to the court shall be construed accordingly.

Interest on sums unpaid under confiscation orders.

11. (1) If any sum required to be paid by a person under a confiscation order
is not paid when it is required to be paid (whether forthwith on the making
of the order or at anytime specified by application of the powers contained
in section 191 of the Criminal Procedure Act) that person shall be liable to
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pay interest on that sum for the period for which it remains unpaid, and the
amount of the interest shall for the purposes of enforcement be treated as
part of the amount to be recovered from him under the confiscation order.

(2) The court may, on the application of the prosecutor, increase the
term of imprisonment fixed in respect of the confiscation order under
section 10(1) if the effect of subsection (1) is to increase the maximum
period applicable in relation to the order under section 10(2).

(3) The rate of interest under subsection (1) shall be that for the time
being applying to a civil judgment debt as provided for under section 36 of
the Supreme Court Act.

Reconsideration of case where the court has not proceeded under
section 3.

12. (1) This section applies where the defendant has appeared before the
court to be sentenced in respect of one or more drug trafficking offences but
the court has not proceeded under section 3.

(2) If the prosecutor has evidence–

(a) which was not available to him when the defendant appeared to
be sentenced, and accordingly was not considered by the court,
but

(b) which the prosecutor believes would have led the court to
determine that the defendant had benefitted from drug
trafficking if–

(i) the prosecutor had asked the court to proceed under
section 3, and

(ii) the evidence had been considered by the court,

he may apply to the court for it to consider the evidence.

(3) The court shall proceed under section 3 if, having considered the
evidence, it is satisfied that it is appropriate to do so.

(4) In considering whether it is appropriate to proceed under section 3,
the court shall have regard to all the circumstances of the case.

(5) Where, having decided to proceed under section 3, the court
proposes to make a confiscation order against the defendant, it shall order
the payment of such amount as it thinks just in all the circumstances of the
case.
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(6) In considering the circumstances of any case, the court shall have
regard, in particular, to the amount of any fine or fines imposed on the
defendant in respect of the offence or offences in question.

(7) Where the court is proceeding under section 3 by virtue of this
section, subsection (4) of that section shall have effect as if the words
“before sentencing or otherwise dealing with him in respect of the offence
or, as the case may be, any of the offences concerned” were omitted.

(8) The court may take into account any payment or other reward
received by the defendant on or after the date of conviction, but only if the
prosecutor shows that it was received by the defendant in connection with
drug trafficking carried on by the defendant or another person on or before
that date.

(9) In considering under this section any evidence which relates to any
payment or reward to which subsection (8) applies, the court shall not make
the assumptions which would otherwise be required by section 5.

(10) No application shall be entertained by the court under this section if
it is made after the end of the period of six years beginning with the date of
conviction.

(11) In this section, “the date of conviction” means–

(a) the date on which the defendant was convicted; or

(b) where he appeared to be sentenced in respect of more than one
conviction, and those convictions were not all on the same
date, the date of the latest of those convictions.

(12) Sections 24 and 25 shall apply where the prosecutor makes an
application under this section as they apply where the prosecutor asks the
court to proceed under section 3.

Re-assessment of whether defendant has benefitted from drug
trafficking.

13. (1) This section applies where the court has made a determination under
section 3(2) (“the section 3(2) determination”) that the defendant has not
benefitted from drug trafficking.

(2) If the prosecutor has evidence–

(a) which was not considered by the court in making the section
3(2) determination, but
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(b) which the prosecutor believes would have led the court to
determine that the defendant had benefitted from drug
trafficking if it had been considered by the court,

he may apply to the court for it to consider that evidence.

(3) If, having considered the evidence, the court is satisfied that it would
have determined that the defendant had benefitted from drug trafficking if
that evidence had been available to it, the court–

(a) shall make–

(i) a fresh determination under subsection (2) of section 3;
and

(ii) a determination under subsection (4) of that section of
the amount to be recovered by virtue of that section; and

(b) may make an order under that section.

(4) Where the court is proceeding under section 3 by virtue of this
section, subsection (4) of that section shall have effect as if the words
“before sentencing or otherwise dealing with him in respect of the offence
or, as the case may be, any of the offences concerned” were omitted.

(5) The court may take into account any payment or other reward
received by the defendant on or after the date of the section 3 (2)
determination, but only if the prosecutor shows that it was received by the
defendant in connection with drug trafficking carried on by the defendant or
another person on or before that date.

(6) In considering under this section any evidence which relates to any
payment or reward to which subsection (5) applies, the court shall not make
the assumptions which would otherwise be required by section 5.

(7) No application shall be entertained by the court under this section if
it is made after the end of the period of six years beginning with the date of
conviction, and in this subsection “the date of conviction” has the same
meaning as in section 12.

(8) Sections 24 and 25 shall apply where the prosecutor makes an
application under this section as they apply where the prosecutor asks the
court to proceed under section 3.

Increase in realisable property.

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14. (1) This section applies where, by virtue of section 6(3), the amount
which a person is ordered to pay by a confiscation order is less than the
amount assessed to be the value of his proceeds of drug trafficking.

(2) If, on an application made in accordance with subsection (3), the
court is satisfied that the amount that might be realised in the case of the
person in question is greater than the amount taken into account in making
the confiscation order (whether it was greater than was thought when the
order was made or has subsequently increased) the court shall issue a
certificate to that effect giving the court’s reasons.

(3) An application under subsection (2) may be made either by the
prosecutor or by a receiver appointed under this Act in relation to the
realisable property of the person in question under section 27 or section 30.

(4) Where a certificate has been issued under subsection (2), the
prosecutor may apply to the court for an increase in the amount to be
recovered under the confiscation order, and on that application the court
may–

(a) substitute for that amount such amount, not exceeding the
amount assessed as the value referred to in subsection (1), as
appears to the court to be appropriate having regard to the
amount now shown to be realisable; and

(b) increase the term of imprisonment fixed in respect of the
confiscation order under subsection (1) of section 10 if the
effect of the substitution is to increase the maximum period
applicable in relation to the order under subsection (2) of that
section.

Revised assessment of proceeds of drug trafficking.

15. (1) This section applies where the court has made a determination under
subsection (4) of section 3 of the amount to be recovered in a particular case
by virtue of that section (“the current section 3(4) determination”).

(2) Where the prosecutor is of the opinion that the real value of the
defendant’s proceeds of drug trafficking was greater than their assessed
value, the prosecutor may apply to the court for the evidence on which the
prosecutor has formed his opinion to be considered by the court.

(3) If, having considered the evidence, the court is satisfied that the real
value of the defendant’s proceeds of drug trafficking is greater than their
assessed value (whether because the real value at the time of the current
section 3(4) determination was higher than was thought or because the value
of the proceeds in question has subsequently increased), the court shall
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make a fresh determination under subsection (4) of section 3 of the amount
to be recovered by virtue of that section.

(4) In subsections (2) and (3)–

“assessed value” means the value of the defendant’s proceeds of drug
trafficking as assessed by the court in accordance with section 6(1);
and

“real value” means the value of the defendant’s proceeds of drug
trafficking which took place–

(a) in the period by reference to which the current section 3(4)
determination was made; or

(b) in any earlier period.

(5) Where the court is proceeding under section 3 by virtue of this
section, subsection (4) of that section shall have effect as if the words
“before sentencing or otherwise dealing with him in respect of the offence
or, as the case may be, any of the offences concerned” were omitted.

(6) Any determination made under section 3(4) by virtue of this section
shall be by reference to the amount that might be realised at the time when
the determination is made.

(7) In the case of any determination under section 3(4) by virtue of this
section, section 5(7) shall not apply in relation to any of the defendant’s
proceeds of drug trafficking taken into account in respect of the current
section 3(4) determination.

(8) In relation to any such determination by virtue of this section–

(a) sections 6(2), 7(4) and 24(9)(a) shall have effect as if for
“confiscation order” there were substituted “determination”;

(b) section 6(3) shall have effect as if for “confiscation order is
made” there were substituted “determination is made”; and

(c) section 7(1) shall have effect as if for “a confiscation order is
made against the defendant” there were substituted “of the
determination”.

(9) The court may take into account any payment or other reward
received by the defendant on or after the date of the current section 3(4)
determination, but only if the prosecutor shows that it was received by the
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defendant in connection with drug trafficking carried on by the defendant or
another person on or before that date.

(10) In considering under this section any evidence which relates to any
payment or reward to which subsection (9) applies, the court shall not make
the assumptions which would otherwise be required by section 5.

(11) If, as a result of making the fresh determination required by
subsection (4), the amount to be recovered exceeds the amount set by the
current section 3(4) determination, the court may substitute for the amount
to be recovered under the confiscation order which was made by reference
to the current section 3(4) determination such greater amount as it thinks
just in all the circumstances of the case.

(12) Where the court varies a confiscation order under subsection (11),
it shall substitute for the term of imprisonment fixed under section 10(1) in
respect of the amount to be recovered under the order a longer term
determined in accordance with that section in respect of the greater amount
substituted under subsection (11).

(13) Subsection (12) shall apply only if the effect of the substitution is to
increase the maximum period applicable in relation to the order under
section 10(2).

(14) No application shall be entertained by the court under this section if
it is made after the end of the period of six years beginning with the date of
conviction, and in this subsection “the date of conviction” has the same
meaning as in section 12.

(15) Sections 24 and 25 shall apply where the prosecutor makes an
application as they apply where the prosecutor asks the court to proceed
under section 3, but, in the case of section 24, subject to subsection (8)(a).

Inadequacy of realisable property.

16. (1) If, on an application made in respect of a confiscation order by–

(a) the defendant, or

(b) a receiver appointed under section 27 or 30 or in pursuance of a
charging order,

the court is satisfied that the realisable property is inadequate for the
payment of any amount remaining to be recovered under the confiscation
order, the court shall issue a certificate to that effect, giving the court’s
reasons.

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(2) For the purposes of subsection (1)–

(a) in the case of realisable property held by a person against
whom a bankruptcy order has been made or whose estate has
been sequestrated, the court shall take into account the extent
to which any property held by him may be distributed among
creditors; and

(b) the court may disregard any inadequacy in the realisable
property which appears to the court to be attributable wholly or
partly to anything done by the defendant for the purpose of
preserving any property held by a person to whom the
defendant had directly or indirectly made a gift caught by this
Act from any risk of realisation under this Act.

(3) Where a certificate has been issued under subsection (1), the person
who applied for it may apply to the court for the amount to be recovered
under the confiscation order to be reduced.

(4) The court shall, on an application under subsection (3),–

(a) substitute for the amount to be recovered under the order such
lesser amount as the court thinks just in all the circumstances
of the case; and

(b) substitute for the term of imprisonment fixed under section
10(1) in respect of the amount to be recovered under the
order a shorter term determined in accordance with that
section in respect of the lesser amount.

(5) Rules of court may make provision–

(a) for the giving of notice of any application under this section;
and

(b) for any person appearing to the court to be likely to be affected
by any exercise of its powers under this section to be given an
opportunity to make representations to the court.

Compensation.

17. (1) If proceedings are instituted against a person for any drug trafficking
offence or offences and either–

(a) the proceedings do not result in his conviction for any drug
trafficking offence, or

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(b) he is convicted of one or more drug trafficking offences but–

(i) the conviction or convictions concerned are quashed, or

(ii) he is pardoned by the Governor in respect of the
conviction or convictions concerned,

the court may, on an application by a person who held property which was
realisable property, order compensation to be paid to the applicant if, having
regard to all the circumstances, it considers it appropriate to make such an
order.

(2) The court shall not order compensation to be paid in any case unless
the court is satisfied–

(a) that there has been some serious default on the part of a person
concerned in the investigation or prosecution of the offence or
offences concerned, being a person mentioned in section
64(8); and

(b) that the applicant has suffered loss in consequence of anything
done in relation to the property by or in pursuance of an order
of the court under sections 27 to 30.

(3) The court shall not order compensation to be paid in any case where
it appears to the court that the proceedings would have been instituted or
continued even if the serious default had not occurred.

(4) The amount of compensation to be paid under this section shall be
such as the court thinks just in all the circumstances of the case.

(5) Compensation payable under this section shall be paid out of any
special fund established under the Public Finance (Control and Audit) Act
which has as its prescribed expenditure such compensation, or in the
absence of such a fund, out of the Consolidated Fund.

Powers of the court where the defendant has absconded or died.

18. (1) Subsection (2) applies where a person has been convicted of one or
more drug trafficking offences.

(2) If the prosecutor asks it to proceed under this section, the court may
exercise its powers under this Act to make a confiscation order against the
defendant if satisfied that the defendant has died or absconded.

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(3) Subsection (4) applies where proceedings for one or more drug
trafficking offences have been instituted against a person but have not been
concluded.

(4) If the prosecutor asks it to proceed under this section, the court may
exercise its powers under this Act to make a confiscation order against the
defendant if satisfied that the defendant has absconded.

(5) The power conferred by subsection (4) may not be exercised at any
time before the end of the period of two years beginning with the date which
is, in the opinion of the court, the date on which the defendant absconded.

(6) In any proceedings on an application under this section–

(a) section 5(2) shall not apply;

(b) section 24 shall apply as it applies where the prosecutor asks
the court to proceed under section 3 but with the omission of
subsections (5), (7) and (8);

(c) the court shall not make a confiscation order against a person
who has absconded unless it is satisfied that the prosecutor has
taken reasonable steps to contact him; and

(d) any person appearing to the court to be likely to be affected by
the making of a confiscation order by the court shall be entitled
to appear before the court and make representations.

(7) Where the court–

(a) has been asked to proceed under this section in relation to a
defendant who has absconded, but

(b) has decided not to make a confiscation order against him,

section 13 shall not apply at any time while he remains an absconder.

(8) Where a confiscation order has been made in relation to any
defendant by virtue of this section, section 15 shall not apply at anytime
while he is an absconder.

Effect of conviction where the court has acted under section 18.

19. (1) Where, in the case of any defendant, the court has made a
confiscation order by virtue of section 18, the court shall, in respect of the
offence, or, as the case may be, any of the offences concerned–

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(a) take account of the order before–

(i) imposing any fine on the defendant;

(ii) making any order involving any payment by him; or

(iii) making any order under section 28 of the Drugs (Misuse)
Act or section 248 of the Criminal Procedure Act; and

(b) subject to paragraph (a), leave the order out of account in
determining the appropriate sentence or other manner of
dealing with him.

(2) Where the court has made a confiscation order by virtue of section
18 and the defendant subsequently appears before the court to be sentenced
in respect of one or more of the offences concerned, section 3(1) shall not
apply so far as his appearance is in respect of that offence or those offences.

Variation of confiscation orders made by virtue of section 18.

20. (1) This section applies where–

(a) the court has made a confiscation order by virtue of section
18(4), and

(b) the defendant has ceased to be an absconder.

(2) If the defendant alleges that–

(a) the value of his proceeds of drug trafficking in the period by
reference to which the determination in question was made (the
“original value”), or

(b) the amount that might have been realised at the time the
confiscation order was made,

was less than the amount ordered to be paid under the confiscation order, he
may apply to the court for it to consider his evidence.

(3) If, having considered that evidence, the court is satisfied that the
defendant’s allegation is correct, it–

(a) shall make a fresh determination under section 3(4); and

(b) may, if it considers it just in all the circumstances, vary the
amount to be recovered under the confiscation order.

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(4) In the case of any determination under section 3 by virtue of this
section, section 5(7) shall not apply in relation to the defendant’s proceeds
of drug trafficking taken into account in determining the original value.

(5) Where the court varies a confiscation order under this section–

(a) it shall substitute for the term of imprisonment fixed under
section 10(1) in respect of the amount to be recovered under
the order a shorter term determined in accordance with section
10(2) in respect of the lesser amount ; and

(b) on the application of a person who held property which was
realisable property, it may order compensation to be paid to
the applicant in accordance with section 23 if–

(i) it is satisfied that the applicant has suffered loss as a
result of the making of the confiscation order, and

(ii) having regard to all the circumstances of the case, the
court considers it to be appropriate.

(6) No application shall be entertained by the court under this section if
it is made after the end of the period of six years beginning with the date on
which the confiscation order was made.

Compensation, etc., where absconder is acquitted.

21. (1) This section applies where–

(a) the court has made a confiscation order by virtue of section
18(4), and

(b) the defendant is subsequently tried for the offence or offences
concerned and acquitted on all counts.

(2) The court by which the defendant is acquitted shall cancel the
confiscation order.

(3) The court may, on the application of a person who held property
which was realisable property, order compensation to be paid to the
applicant in accordance with section 23 if it is satisfied that the applicant has
suffered loss as a result of the making of the confiscation order.

Power to discharge confiscation order and order compensation where
absconder returns.

22. (1) This section applies where–
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(a) the court has made a confiscation order by virtue of section
18(4) in relation to an absconder;

(b) the defendant has ceased to be an absconder; and

(c) section 21 does not apply.

(2) The court may, on the application of the defendant, cancel the
confiscation order if it is satisfied that–

(a) there has been undue delay in continuing the proceedings in
respect of which the power under section 18(4) was exercised;
or

(b) the prosecutor does not intend to proceed with the prosecution.

(3) Where the court cancels a confiscation order under this section it
may, on the application of a person who held property which was realisable
property, order compensation to be paid to the applicant in accordance with
section 23 if it is satisfied that the applicant has suffered loss as a result of
the making of the confiscation order.

Provisions supplementary to sections 20, 21 and 22.

23. (1) Where the court orders compensation to be paid under section 20, 21
or 22, the amount of that compensation shall be such as the court considers
just in all the circumstances of the case.

(2) Rules of court may make provision–

(a) for the giving of notice of any application under section 20, 21
or 22; and

(b) for any person appearing to the court to be likely to be affected
by any exercise of its powers under any of those sections to be
given an opportunity to make representations to the court.

(3) Compensation payable under any of those sections shall be paid out
of a special fund established under the Finance (Control and Audit) Act and
having as its prescribed expenditure such compensation or in the absence of
such a fund, out of the Consolidated Fund.

(4) Where the court cancels a confiscation order under section 21 or 22,
it may make such consequential or incidental order as it considers
appropriate in connection with the cancellation.

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Statements relating to drug trafficking.

24. (1) Where the prosecutor asks the court to proceed under section 3, he
shall give the court, within such period as it may direct, a statement of
matters which he considers relevant in connection with–

(a) determining whether the defendant has benefitted from drug
trafficking; or

(b) assessing the value of his proceeds of drug trafficking.

(2) In this section such a statement is referred to as a “prosecutor’s
statement”.

(3) Where the court proceeds under section 3 without the prosecutor
having asked it to do so, it may require him to give it a prosecutor’s
statement, within such period as it may direct.

(4) Where the prosecutor has given a prosecutor’s statement–

(a) he may at any time give the court a further such statement; and

(b) the court may at any time require him to give it a further such
statement, within such period as it may direct.

(5) Where any prosecutor’s statement has been given and the court is
satisfied that a copy of the statement has been served on the defendant, it
may require the defendant–

(a) to indicate to it, within such period as it may direct, the extent
to which he accepts each allegation in the statement; and

(b) so far as he does not accept any such allegation, to give
particulars of any matters on which he proposes to rely.

(6) Where the court has given a direction under this section it may at any
time vary it by giving a further direction.

(7) Where the defendant accepts to any extent any allegation in any
prosecutor’s statement, the court may, for the purposes of–

(a) determining whether the defendant has benefitted from drug
trafficking; or

(b) assessing the value of his proceeds of drug trafficking,

treat his acceptance as conclusive of the matters to which it relates.
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(8) If the defendant fails in any respect to comply with a requirement
under subsection (5), he may be treated for the purposes of this section as
accepting every allegation in the prosecutor’s statement in question apart
from–

(a) any allegation in respect of which he has complied with the
requirement; and

(b) any allegation that he has benefitted from drug trafficking or
that any payment or other reward was received by him in
connection with drug trafficking carried on by him or another
person.

(9) Where–

(a) there is given to the court by the defendant a statement as to
any matters relevant to determining the amount that might be
realised at the time the confiscation order is made, and

(b) the prosecutor accepts to any extent any allegation in the
statement,

the court may, for the purposes of that determination, treat the acceptance by
the prosecutor as conclusive of the matters to which it relates.

(10) An allegation may be accepted, or particulars of any matter may be
given, for the purposes of this section in such manner as may be prescribed
by rules of court or as the court may direct.

(11) No acceptance by the defendant under this section that any payment
or other reward was received by him in connection with drug trafficking
carried on by him or another person shall be admissible in evidence in any
proceedings for an offence.

Provision of information by defendant.

25. (1) This section applies where–

(a) the prosecutor has requested the court to proceed under
section 3; or

(b) no such request has been made but the court is nevertheless
proceeding, or considering whether to proceed, under section
3.

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(2) For the purpose of obtaining information to assist it in carrying out
its functions, the court may at any time order the defendant to give it such
information as may be specified in the order.

(3) An order under subsection (2) may require all, or any specified part,
of the required information to be given to the court in such manner, and
before such date, as may be specified in the order.

(4) Rules of court may make provision as to the maximum or minimum
period that may be allowed under subsection (3).

(5) If the defendant fails, without reasonable excuse, to comply with any
order under this section, the court may draw such inference from that failure
as it considers appropriate.

(6) Where the prosecutor accepts to any extent any allegation made by
the defendant in giving to the court information required by an order under
this section, the court may treat that acceptance as conclusive of the matters
to which it relates.

(7) For the purposes of this section, an allegation may be accepted in
such manner as may be prescribed by rules of court or as the court may
direct.

Cases in which restraint orders and charging orders may be made.

26. (1) The powers conferred on the court by sections 27(1) and 28(1) are
exercisable where–

(a) proceedings have been instituted in Gibraltar against the
defendant for a drug trafficking offence or an application has
been made by the prosecutor in respect of the defendant under
section 12, 13, 14, 15 or 18;

(b) the proceedings have not, or the application has not, been
concluded; and

(c) the court is satisfied that there is reasonable cause to believe–

(i) in the case of an application under section 14 or 15, that
the court will be satisfied as mentioned in section 14(2)
or, as the case may be, 15(3); or

(ii) in any other case, that the defendant has benefitted from
drug trafficking.

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(2) The court shall not exercise those powers by virtue of subsection (1)
if it is satisfied that–

(a) there has been undue delay in continuing the proceedings or
application in question; or

(b) the prosecutor does not intend to proceed.

(3) The powers mentioned in subsection (1) are also exercisable where–

(a) the court is satisfied that, whether by the laying of an
information or otherwise, a person is to be charged with a drug
trafficking offence or that an application of a kind mentioned in
subsection (1)(a) is to be made in respect of the defendant; and

(b) the court is also satisfied as mentioned in subsection (1)(c).

(4) For the purposes of sections 27 and 28, at any time when those
powers are exercisable before proceedings have been instituted–

(a) references in this Act to the defendant shall be construed as
references to the person referred to in subsection (3)(a);

(b) references in this Act to the prosecutor shall be construed as
references to the person who the court is satisfied is to have the
conduct of the proposed proceedings; and

(c) references in this Act to realisable property shall be construed
as if, immediately before that time, proceedings had been
instituted against the person referred to in subsection (3)(a) for
a drug trafficking offence.

(5) Where the court has made an order under section 27(1) or 28(1) by
virtue of subsection (3), the court shall discharge the order if proceedings in
respect of the offence are not instituted, whether by the laying of an
information or otherwise, or, as the case may be, if the application is not
made, within such time as the court considers reasonable.

Restraint orders.

27. (1) The court may by order (in this Act referred to as a “restraint order”)
prohibit any person from dealing with any realisable property, subject to
such conditions and exceptions as may be specified in the order.

(2) A restraint order may apply–

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(a) to all realisable property held by a specified person, whether
the property is described in the order or not; and

(b) to realisable property held by a specified person, being property
transferred to him after the making of the order.

(3) This section shall not have effect in relation to any property for the
time being subject to a charge under section 28 or section 11 of the Drug
Trafficking Offences Act, 1988.

(4) A restraint order–

(a) may be made only on an application by the prosecutor;

(b) may be made on an ex parte application to a judge in chambers;
and

(c) shall provide for notice to be given to persons affected by the
order.

(5) A restraint order–

(a) may be discharged or varied in relation to any property; and

(b) shall be discharged on the conclusion of the proceedings or of
the application in question.

(6) An application for the discharge or variation of a restraint order may
be made by any person affected by it.

(7) Where the court has made a restraint order, the court–

(a) may at any time appoint a receiver–

(i) to take possession of any realisable property, and

(ii) in accordance with the court’s directions, to manage or
otherwise deal with any property in respect of which he
is appointed, subject to such exceptions and conditions
as may be specified by the court; and

(b) may require any person having possession of property in
respect of which a receiver is appointed under this section to
give possession of it to the receiver.

(8) For the purposes of this section, dealing with property held by any
person includes (without prejudice to the generality of that expression)–
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(a) where a debt is owed to that person, making a payment to any
person in reduction of the amount of the debt; and

(b) removing the property from Gibraltar.

(9) Where a restraint order has been made, a police or customs officer
may, for the purpose of preventing any realisable property being removed
from Gibraltar, seize the property.

(10) Property seized under subsection (9) shall be dealt with in
accordance with the directions of the court which made the order.

Charging orders in respect of land, securities, etc.

28. (1) The court may make a charging order on realisable property for
securing the payment to the Crown–

(a) where a confiscation order has not been made, of an amount
equal to the value from time to time of the property charged;
and

(b) where a confiscation order has been made, of an amount not
exceeding the amount payable under the confiscation order.

(2) For the purposes of this Act, a charging order is an order made under
this section imposing on any such realisable property as may be specified in
the order a charge for securing the payment of money to the Crown.

(3) A charging order–

(a) may be made only on an application by the prosecutor;

(b) may be made on an ex parte application to a judge in chambers;

(c) shall provide for notice to be given to persons affected by the
order; and

(d) may be made subject to such conditions as the court thinks fit
including, without prejudice to the generality of this
paragraph, such conditions as it thinks fit as to the time when
the charge is to become effective.

(4) Subject to subsection (6), a charge may be imposed by a charging
order only on–

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(a) any interest in realisable property which is an interest held
beneficially by the defendant or by a person to whom the
defendant has directly or indirectly made a gift caught by this
Act and is an interest–

(i) in any asset of a kind mentioned in subsection (5); or

(ii) under any trust; or

(b) any interest in realisable property held by a person as trustee of
a trust (“the relevant trust”) if the interest is in such an asset or
is an interest under another trust and a charge made by virtue of
paragraph (a) be imposed by a charging order on the whole
beneficial interest under the relevant trust.

(5) The assets referred to in subsection (4) are–

(a) land in Gibraltar; or

(b) securities of any of the following kinds–

(i) government stock;

(ii) stock of any body (other than a building society)
incorporated within Gibraltar;

(iii) stock of any body incorporated outside Gibraltar or of
any country or territory outside Gibraltar, being stock
registered in a register kept at any place within Gibraltar;

(iv) units of any unit trust in respect of which a register of the
unit holders is kept at any place within Gibraltar.

(6) In any case where a charge is imposed by a charging order or any
interest in an asset of a kind mentioned in subsection (5)(b), the court may
provide for the charge to extend to any interests or dividend payable in
respect of the asset.

(7) In relation to a charging order, the court–

(a) may make an order discharging or varying it; and

(b) shall make an order discharging it–

(i) on the conclusion of the proceedings or of the application
in question; or

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(ii) on payment into court of the amount, payment of which
is secured by the charge.

(8) An application for the discharge or variation of a charging order may
be made by any person affected by it.

(9) In this section “building society”, “dividend”, “government stock”,
“stock” and “unit trust” have the same meaning as in the Charging Orders
Act, 1988.

Charging orders: supplementary provisions.

29. (1) Subject to any provision made under section 30 or by rules of court,
a charge imposed by a charging order shall have the like effect and shall be
enforceable in the same court and in the same manner as an equitable charge
created by the person holding the beneficial interest or, as the case may be,
the trustees by writing under their hand.

(2) The Government may, by notice in the Gazette, amend section 28 by
adding to or removing from the kinds of assets for the time being referred to
there any asset of a kind which, in its opinion, ought to be so added or
removed.

Realisation of property.

30. (1) Where a confiscation order–

(a) has been made under this Act,

(b) is not satisfied, and

(c) is not subject to appeal,

the court may, on an application by the prosecutor, exercise the powers
conferred by subsections (2) to (6).

(2) The court may appoint a receiver in respect of realisable property.

(3) The court may empower a receiver appointed under subsection (2) of
this section, under section 27 or in pursuance of a charging order–

(a) to enforce any charge imposed under section 28 on realisable
property or on interest or dividends payable in respect of such
property; and

(b) in relation to any realisable property, other than property for the
time being subject to a charge under section 28, to take
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possession of the property subject to such conditions or
exceptions as may be specified by the court.

(4) The court may order any person having possession of realisable
property to give possession of it to any such receiver.

(5) The court may empower any such receiver to realise any realisable
property in such manner as the court may direct.

(6) The court may–

(a) order any person holding an interest in realisable property to
make to the receiver such payment as it may direct in respect of
any beneficial interest held by the defendant or, as the case may
be, the recipient of a gift caught by this Act; and

(b) on the payment being made, by order transfer, grant or
extinguish any interest in the property.

(7) Subsections (4) to (6) do not apply to property for the time being
subject to a charge under section 28 or section 11 of the Drug Trafficking
Offences Act, 1988.

(8) The Court shall not in respect of any property exercise the powers
conferred by subsection (3)(a), (5) or (6) unless a reasonable opportunity has
been given for persons holding any interest in the property to make
representations to the court.

Application of proceeds of realisation and other sums.

31. (1) The following sums in the hands of a receiver appointed under
section 27 or 30 or in pursuance of a charging order, that is–

(a) the proceeds of the enforcement of any charge imposed under
section 28,

(b) the proceeds of the realisation, other than by the enforcement
of such a charge, of any property under section 27 or 30, and

(c) any other sums, being property held by the defendant,

shall be applied, subject to subsection (2), on the defendant’s behalf towards
the satisfaction of the confiscation order.

(2) Before any such sums are so applied they shall be applied–

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(a) first, in payment of such expenses incurred by a person acting
as an insolvency practitioner as are payable under section
35(3); and

(b) second, in making such payments, if any, as the court may
direct.

(3) If, after the amount payable under the confiscation order has been
fully paid, any such sums remain in the hands of such a receiver as is
mentioned in subsection (1), the receiver shall distribute those sums–

(a) among such of those who held property which has been
realised under this Act, and

(b) in such proportions,

as the court may direct after giving a reasonable opportunity for such
persons to make representations to the court.

(4) A receipt of any sum by a clerk of the magistrates’ court on account
of an amount payable under a confiscation order shall reduce the amount so
payable, but the clerk of the magistrates’ court shall apply the money
received for the purpose specified in this section and in the order so
specified.

(5) The clerk of the magistrates’ court shall first pay any expenses
incurred by a person acting as an insolvency practitioner and payable under
section 35(3) but not already paid under subsection (2).

(6) If the money was paid to the clerk of the magistrates’ court by a
receiver appointed under section 27 or 30 or in pursuance of a charging
order, the clerk of the magistrates’ court shall next pay the receiver’s
remuneration and expenses.

(7) After making–

(a) any payment required by subsection (5), and

(b) in a case to which subsection (6) applies, any payment required
by that subsection,

the clerk of the magistrates’ court shall reimburse any amount paid under
section 36(2).

(8) Any balance in the hands of the clerk to the magistrates’ court after
he has made all payments required by the preceding provisions of this
section shall be paid into any special fund established under the Public
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Finance (Control and Audit) Act having as prescribed income such sums,
and in the absence of such a fund, shall be paid into the Consolidated Fund.

Exercise by the court or receiver of powers for the realisation of
property.

32. (1) The following provisions apply to the powers conferred–

(a) on the court by sections 27 to 31; or

(b) on a receiver appointed under section 27 or 30 or in pursuance
of a charging order.

(2) Subject to the following provisions of this section, the powers shall
be exercised with a view to making available for satisfying the confiscation
order or, as the case may be, any confiscation order that may be made in the
defendant’s case, the value for the time being of realisable property held by
any person, by means of the realisation of such property.

(3) In the case of realisable property held by a person to whom the
defendant has directly or indirectly made a gift caught by this Act, the
powers shall be exercised with a view to realising no more than the value for
the time being of the gift.

(4) The powers shall be exercised with a view to allowing any person
other than the defendant or the recipient of any such gift to retain or recover
the value of any property held by him.

(5) In exercising the powers, no account shall be taken of any
obligations or of the recipient of any such gift which conflict with the
obligation to satisfy the confiscation order.

(6) An order may be made or other action taken in respect of a debt
owed by the Crown.

Bankruptcy of defendant, etc.

33. (1) Where a bankruptcy order is made against a person who holds
realisable property,

(a) the property for the time being subject to a restraint order made
before the bankruptcy order, and

(b) any proceeds of property by virtue of section 27(7) or 30(5) or
(6) for the time being in the hands of a receiver appointed
under section 27 or 30,

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is excluded from the bankrupt’s estate for the purpose of the Insolvency Act
2011.

(2) Where a bankruptcy order has been made against a person, the
powers conferred on the court by sections 27 to 31 or on a receiver so
appointed shall not be exercised in relation to–

(a) property for the time being comprised in the bankrupt’s estate
for the purpose of the Insolvency Act 2011;

(b) property which is to be applied for the benefit of creditors of
the bankrupt by virtue of a condition imposed under section
412(1)(c) of the Insolvency Act 2011,

but otherwise, nothing in that Act shall be taken as restricting or enabling
the restriction of, the exercise of those powers.

(3) Subsection (2) does not affect the enforcement of a charging order–

(a) made before the bankruptcy order was made against the person;
or

(b) on property which was subject to a restraint order when the
bankruptcy order was made.

(4) Where in the case of a debtor, an interim receiver stands appointed
under section 334 of the Insolvency Act 2011 and any property of the debtor
is subject to a restraint order, the powers conferred on the receiver by virtue
of that Act do not apply to property for the time being subject to the restraint
order.

(5) Where a bankruptcy order is made against a person who has directly
or indirectly made a gift caught by this Act–

(a) no order shall be made under Part 15 of the Insolvency Act
2011 (Voidable Transactions), in respect of the making of the
gift, at any time when–

(i) proceedings for a drug trafficking offence have been
instituted against him and have not been concluded;

(ii) an application has been made in respect of the defendant
under section 12, 13, 14, 15 or 18 and has not been
concluded; or

(iii) the property of the person to whom the gift was made is
subject to a restraint order or charging order, and
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(b) any order made under Part 15 of the Insolvency Act 2011 after
the conclusion of the proceedings or of the application shall
take into account any realisation under this Act of property held
by the person to whom the gift was made.

(6) In addition to the position provided for in section 2(16), for the
purposes of this section, a confiscation order is also satisfied when the
defendant in respect of whom it was made has served a term of
imprisonment in default of payment of the amount due under the order.

(7) Section 413 of the Insolvency Act 2011 shall have effect as if
amounts payable under a confiscation order were a liability excepted under
subsection (3)(c) of that section.

Liquidation or Administration of company holding realisable property.

34. (1) Where realisable property is held by a company and a liquidator or
administrator has been appointed under the Insolvency Act 2011 or a
voluntary liquidator has been appointed under the Companies Act 2014, the
functions of the liquidator, administrator or voluntary liquidator, shall not be
exercisable in relation to–

(a) the property for the time being subject to a restraint order made
before the relevant time; and

(b) any proceeds of property realised by virtue of section 27(7) or
30(5) or (6) for the time being in the hands of a receiver
appointed under section 27 or 30.

(2) Where, in the case of a company, a liquidator, administrator or
voluntary liquidator has been appointed, the powers conferred on the court
by sections 27 to 31 or on a receiver so appointed shall not be exercised in
relation to any realisable property held by the company in relation to which
the functions of the liquidator, administrator or voluntary liquidator are
exercisable–

(a) so as to inhibit him from exercising those functions for the
purposes of distributing any property held by the company to
the company’s creditors; or

(b) so as to prevent the payment out of any property of expenses,
including the remuneration of the liquidator, administrator or
voluntary liquidator properly incurred in the liquidation,
administration or voluntary liquidation in respect of the
property;

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but otherwise nothing in the Insolvency Act 2011 or Companies Act shall be
taken as restricting, or enabling the restriction of, the exercise of those
powers.

(3) Subsection (2) does not affect the enforcement of a charging order
made before the relevant time or on property which was subject to a restraint
order at the relevant time.

(4) In this section–

“company” means any company in respect of which a liquidator,
administrator or voluntary liquidator, as the case may be, may be
appointed; and

“liquidator” includes a provisional liquidator; and

“the relevant time”–

(a) in the case of a company in liquidation or administration, has
the meaning specified in section 2 of the Insolvency Act 2011;
and

(b) in the case of a company in voluntary liquidation, means the
commencement of the voluntary liquidation within the meaning
of the Companies Act 2014.

Persons acting as insolvency practitioners.

35. (1) Without prejudice to the generality of a provision in the Insolvency
Act 2011 or in any other Act, where–

(a) any person acting as an insolvency practitioner seizes or
disposes of any property in relation to which his functions are
not exercisable because it is for the time being subject to a
restraint order; and

(b) at the time of the seizure or disposal he believes, and has
reasonable grounds for believing, that he is entitled (whether in
pursuance of an order of the court or otherwise) to seize or
dispose of that property,

he shall not be liable to any person in respect of any loss or damage resulting
from the seizure or disposal except in so far as the loss or damage is caused
by his negligence in so acting.

(2) A person acting as an insolvency practitioner shall, in the
circumstances mentioned in subsection (1)(a) and (b), have a lien on the
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property, or the proceeds of its sale, for such of his expenses as were
incurred in connection with the liquidation, voluntary liquidation,
administration, bankruptcy or other proceedings in relation to which the
seizure or disposal purported to take place and for so much of his
remuneration as may reasonably be assigned for his acting in connection
with those proceedings.

(3) Where a person acting as an insolvency practitioner–

(a) incurs expenses in respect of such property as is mentioned in
paragraph (a) of subsection (1) and in so doing does not know
and has no reasonable grounds to believe that the property is
for the time being subject to a restraint order, or

(b) incurs expenses other than expenses in respect of such property
as is so mentioned, being expenses which, but for the effect of
a restraint order might have been met by taking possession and
realising the property,

that person shall be entitled (whether or not he has seized or disposed of that
property so as to have a lien under subsection (2)) to payment of those
expenses under section 31(1) or (5).

Receivers: supplementary provisions.

36. (1) Where a receiver appointed under section 27 or 30 or in pursuance of
a charging order–

(a) takes any action in relation to property which is not realisable
property, being action which he would be entitled to take if it
were such property, and

(b) believes, and has reasonable grounds for so 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 the loss or damage is caused by his
negligence.

(2) Any amount due in respect of the remuneration and expenses of a
receiver so appointed shall, if no sum is available to be applied in payment
of it under section 31(6) be paid by the prosecutor or, in a case where
proceedings for a drug trafficking offence are not instituted, by the person
on whose application the receiver was appointed.


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MUTUAL LEGAL ASSISTANCE.

Service of overseas process in Gibraltar.

37. (1) This section has effect where the Minister responsible for justice
receives from the government of, or other authority in, a country or territory,
being a Convention state, or, as the case may be, a territory of such a state to
which application of the Vienna Convention has been extended, outside
Gibraltar,

(a) a summons or other process requiring a person to appear as a
defendant or attend as a witness in criminal proceedings in that
country or territory; or

(b) a document issued by a court exercising criminal jurisdiction in
that country or territory and recording a decision of the court
made in exercise of that jurisdiction,

together with the request for that process or document to be served on a
person in Gibraltar.

(2) The Minister responsible for justice may cause the process or
document to be served by post or, if the request is for personal service,
direct the Commissioner to cause it to be personally served on that person.

(3) Service by virtue of this section of any such process as is mentioned
in subsection (1)(a) does not impose any obligation under the law of
Gibraltar to comply with it.

(4) Any such process or document served by virtue of this section shall
be accompanied by a notice–

(a) stating the effect of subsection (3);

(b) indicating that the person on whom it is served may wish to
seek advice as to the possible consequences of failing to
comply with the process under the law of the country or
territory where it was issued; and

(c) indicating that under that law he may not, as a witness, be
accorded the same rights and privileges as would be accorded
to him in criminal proceedings in Gibraltar.

(5) Where the Commissioner is directed under this section to cause any
process or document to be served, he shall, after it has been served,
forthwith inform the Minister responsible for justice when and how it was
served and, if possible, furnish him with a receipt signed by the person on
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whom it was served, and if the Commissioner has been unable to cause the
process or document to be served, he shall forthwith inform the Minister
responsible for justice of that fact and of the reasons.

(6) In subsection (1) “criminal proceedings in that country or territory”
and “a decision of the court made in exercise of that jurisdiction” are
proceedings or a decision in that country or territory in respect of an offence
of drug trafficking or an offence under a corresponding law.

Service of Gibraltar process overseas.

38. (1) Process of the following descriptions, that is to say–

(a) a summons requiring a person charged with an offence under
this Act or under the Drugs (Misuse) Act to appear before a
court in Gibraltar;

(b) a summons or order requiring a person to attend before a court
in Gibraltar for the purpose of giving evidence in criminal
proceedings, being proceedings under this Act or under the
Drugs (Misuse) Act,

may be issued or made notwithstanding that the person in question is outside
Gibraltar and may be served outside Gibraltar in accordance with
arrangements made by the Minister responsible for justice.

(2) Service of any process outside Gibraltar by virtue of this section
does not impose any obligation under the law of Gibraltar to comply with it
and accordingly failure to do so shall not constitute contempt of any court or
be a ground for issuing a warrant to secure the attendance of the person in
question.

(3) Subsection (2) is without prejudice to the service of any process
(with the usual consequences for non-compliance) on the person in question,
if subsequently effected in Gibraltar.

Overseas evidence for use in Gibraltar.

39. (1) Where, on an application made in accordance with subsection (2), it
appears to a judge–

(a) that an offence under this Act or the Drugs (Misuse) Act has
been committed or that there are reasonable grounds for
suspecting that such an offence has been committed; and

(b) that proceedings in respect of such an offence have been
instituted or that such an offence is being investigated,
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he may issue a letter (a “letter of request”) requesting assistance in obtaining
outside Gibraltar such evidence as is specified in the letter for use in the
proceedings or investigation.

(2) An application under subsection (1) may be made by the Minister
responsible for justice or, if proceedings have been instituted, by the person
charged in those proceedings, and may be made where the court, tribunal or
other authority to which the letter is to be addressed, is a court, tribunal or
authority of a Convention state or of a territory of such a state to which
application of the Vienna Convention has been extended.

(3) Subject to subsection (4), a letter of request shall be sent to the
Governor for transmission either–

(a) to a court or tribunal specified in the letter and exercising
jurisdiction in the place where the evidence is to be obtained;
or

(b) to an authority recognised by the government of the country or
territory in question as the appropriate authority for receiving
requests for assistance of the kind to which this section applies.

(4) In the case of urgency, a letter of request may be sent direct to such a
court or tribunal as is mentioned in subsection (3)(a).

(5) In this section, “evidence” includes documents and other articles.

(6) Evidence obtained by virtue of a letter of request shall not, without
the consent of such an authority as is mentioned in subsection (3)(b), be
used for any reason other than that specified in the letter, and where any
document or other article obtained pursuant to a letter of request is no longer
required for that purpose or for any purpose for which such consent has been
obtained; it shall be returned to such an authority unless that authority
indicates that the document or article need not be returned.

(7) In exercising any discretion conferred by law to exclude evidence in
relation to a statement contained in evidence taken pursuant to a letter of
request, the court shall have regard–

(a) to whether it was possible to challenge the statement by
questioning the person who made it; and

(b) if proceedings have been instituted, to whether the local law
allowed the parties to the proceedings to be legally represented
when the evidence was being taken.

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Gibraltar evidence for use overseas.

40. (1) This section has effect where the Attorney General receives–

(a) from a court or tribunal exercising jurisdiction in a country or
territory, being a Convention state, or, as the case may be, a
territory of such a state to which application of the Vienna
Convention has been extended, outside Gibraltar; or

(b) from another authority in such a country or territory which
appears to him to have the function of making requests of the
kind to which this section applies,

a request for assistance in obtaining evidence in Gibraltar in connection with
criminal proceedings that have been instituted, or a criminal investigation
that is being carried on in that country or territory, where the proceedings or
investigations are in respect of offences of drug trafficking or offences under
a corresponding law.

(2) If the Minister responsible for justice is satisfied–

(a) that an offence of drug trafficking under the law of that country
or territory in question or under a corresponding law of that
country or territory in question has been committed or that
there are reasonable grounds for suspecting that such an
offence has been committed; and

(b) that proceedings in respect of that offence have been instituted
in that country or territory or that an investigation into that
offence is being carried on there,

he may, if he thinks fit, by a notice in writing nominate a court in Gibraltar
to receive such of the evidence to which the request relates as may appear to
the court to be appropriate for the purpose of giving effect to the request.

(3) For the purpose of satisfying himself as to the matters mentioned in
subsection (2)(a) and (b), the Minister responsible for justice shall regard as
conclusive a certificate issued by such an authority in the country or territory
in question as appears to him to be appropriate.

(4) In this section “evidence” includes documents and other articles.

(5) The Schedule to this Act has effect with respect to the proceedings
before a nominated court in pursuance of a notice under subsection (2).

Transfer of Gibraltar prisoner to give evidence or assist investigation
overseas.
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41. (1) The Minister responsible for justice may, if he thinks fit, issue a
warrant providing for any person (“a prisoner”) serving a sentence in a
prison in Gibraltar to be transferred to a country or territory outside
Gibraltar where that country is a Convention state, or, as the case may be,
the territory of such a country to which application of the Vienna
Convention has been extended, for the purpose–

(a) of giving evidence in criminal proceedings there; or

(b) of being identified or otherwise by his presence assisting, in
such proceedings or the investigation of an offence.

(2) No warrant shall be issued under this section in respect of a prisoner
unless he has consented in writing to being transferred as mentioned in
subsection (1), and that consent may be given either–

(a) by the prisoner himself; or

(b) in circumstances in which it appears to the Minister responsible
for justice inappropriate, by reason of the prisoner’s physical or
mental condition or his youth, for him to act for himself, by a
person appearing to the Attorney General to be an appropriate
person to act on his behalf,

but a consent once given, is not capable of being withdrawn after the issue
of the warrant.

(3) The effect of a warrant under this section is to authorise–

(a) the taking of the prisoner to a place in Gibraltar and his
delivery at a place of departure from Gibraltar into the custody
of the person representing the appropriate authority of the
country or territory to which the prisoner is to be transferred;
and

(b) the bringing of the prisoner back to Gibraltar and his transfer in
custody to a place where he is liable to be detained under the
sentence to which he is subject.

(4) Where a warrant has been issued in respect of the prisoner under this
section, he shall be deemed to be in legal custody at any time when, being in
Gibraltar or on board a ship registered in Gibraltar, he is being taken under
the warrant to or from any place or being kept in custody under the warrant.

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(5) A person authorised by or for the purposes of the warrant to take the
prisoner to or from any place or to keep him in custody, has all the powers,
authority, protection and privileges of a police officer.

(6) If the prisoner escapes or is unlawfully at large, he may be arrested
without warrant by a customs or police officer and taken to any place to
which he may be taken under the warrant issued under this section.

(7) This section applies to a person in custody awaiting trial or sentence
and a person committed to prison for default in paying a fine as it applies to
a prisoner, and the reference in subsection (3)(b) to a sentence shall be
construed accordingly.

(8) This section applies to proceedings in a country or territory in
respect of an offence of drug trafficking or an offence under a corresponding
law and to an offence in that country or territory of drug trafficking or under
a corresponding law.

Transfer of overseas prisoner to give evidence or assist investigation in
Gibraltar.

42. (1) This section has effect where–

(a) a witness order has been made or a witness summons issued in
criminal proceedings under this Act or under the Drugs
(Misuse) Act in Gibraltar in respect of a person (“a prisoner”)
who is detained in custody in a country or territory outside
Gibraltar by virtue of a sentence or order of a court or tribunal
exercising criminal jurisdiction in that country or territory; or

(b) it appears to the Minister responsible for justice that it is
desirable for a prisoner to be identified, or otherwise by his
presence to assist, in such proceedings or the investigation in
Gibraltar of an offence under this Act or under the Drugs
(Misuse) Act.

(2) If the Minister responsible for justice is satisfied that the appropriate
authority in the country or territory where the prisoner is detained being a
Convention state or, as the case may be, a territory of such a state to which
application of the Vienna Convention has been extended, will make
arrangements for him to come to Gibraltar to give evidence pursuant to the
witness order or witness summons or, as the case may be, for the purposes
mentioned in subsection (1)(b), he may issue a warrant under this section.

(3) No warrant shall be issued under this section in respect of any
prisoner unless he has consented to being brought to Gibraltar to give
evidence as aforesaid or, as the case may be, for the purpose mentioned in
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subsection (1)(b) but a consent once given, shall not be capable of being
withdrawn after the issue of the warrant.

(4) The effect of the warrant shall be to authorise–

(a) the bringing of the prisoner to Gibraltar;

(b) the taking of the prisoner to, and his detention in custody at,
such place or places in Gibraltar as are specified in the warrant;
and

(c) the returning of the prisoner to the country or territory from
which he has come.

(5) Subsections (4) to (7) of section 41 shall have effect in relation to a
warrant issued under this section as they have effect in relation to a warrant
issued under that section.

(6) A person shall not be subject to the Immigration Control Act in
respect of his entry into or presence in Gibraltar in pursuance of a warrant
under this section, but if the warrant ceases to have effect whilst he is in
Gibraltar, he shall be treated for the purposes of that Act as if he has then
illegally entered Gibraltar.

(7) This section applies to a person detained in custody in a country or
territory outside Gibraltar in consequence of having been transferred there
under any provisions or arrangements for the repatriation of prisoners as it
applies to a person detained as is mentioned in subsection (1).

Search, etc., for material relevant to overseas investigation.

43.(1) If, on an application made by a customs or police officer, a justice of
the peace is satisfied–

(a) that criminal proceedings have been instituted against a person
in a country or territory, being a Convention state, or, as the
case may be, a territory of such a state to which application of
the Vienna Convention has been extended, outside Gibraltar or
that a person has been arrested in the course of a criminal
investigation carried on there;

(b) that the conduct constituting the offence which is the subject of
the proceedings or investigation constitutes an offence under
this Act or under the Drugs (Misuse) Act if it had occurred in
Gibraltar; and

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(c) that there are reasonable grounds for suspecting that there are
on premises in Gibraltar occupied or controlled by that person,
evidence relating to the offence other than items subject to
legal privilege,

he may issue a warrant authorising a customs or police officer to enter and
search those premises and to seize any such evidence found there.

(2) The power to search conferred by subsection (1) is only a power to
search to the extent that is reasonably required for the purpose of
discovering such evidence as is there mentioned.

(3) No application for a warrant or order shall be made by virtue of
subsection (1) except in pursuance of a direction given by the Minister
responsible for justice in response to a request received–

(a) from a court or tribunal exercising criminal jurisdiction in the
overseas country or territory in question; or

(b) from any other authority in that country or territory which
appears to him to have the function of making requests for the
purposes of this section;

and any evidence seized by a customs or police officer by virtue of this
section shall be furnished by him to the Attorney-General for transmission
to that court, tribunal or authority.

(4) If, in order to comply with the request it is necessary for any such
evidence to be accompanied by a certificate, affidavit or other verifying
document, the customs or police officer shall also furnish for transmission
such document of that nature as may be specified in the direction given by
the Minister responsible for justice.

(5) Where the evidence consists of a document, the original or a copy
shall be transmitted, and where it consists of any other article, the article
itself or a description, photograph or other representation of it, shall be
transmitted, as may be necessary in order to comply with the request.


43A.(1) A customs or police officer may, for the purpose of an
investigation into drug trafficking, apply to a judge for an order under sub-
section (2) in relation to particular material or material of a particular
description.

(2) If on such an application the judge is satisfied that the conditions in
sub-section (4) are fulfilled, he may make an order that the person who
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appears to him to be in possession of the material to which the application
relates shall–

(a) produce it to a customs or police officer to take away, or

(b) give a customs or police officer access to it,

within such period as the order may specify.

(3) The period to be specified in an order under sub-section (2) shall be
seven days unless it appears to the judge that a longer or shorter period
would be appropriate in the particular circumstances of the application.

(4) The conditions referred to in sub-section (2) are–

(a) that criminal proceedings have been instituted against a person
in a country or territory, being a Convention state, or, as the
case may be, a territory of such a state to which application of
the Vienna Convention has been extended, outside Gibraltar or
that a person has been arrested in the course of a criminal
investigation carried on there;

(b) that the conduct constituting the offence which is the subject of
the proceedings or investigation constitutes an offence under
this Act or under the Drugs (Misuse) Act if it had occurred in
Gibraltar;

(c) that there are reasonable grounds for suspecting that a specified
person has carried on or has benefited from drug trafficking;

(d) that there are reasonable grounds for suspecting that the
materials to which the application relates–

(i) is likely to be of substantial value (whether by itself or
together with any other material) to the investigation for
the purpose of which the application is made; and

(ii) does not consist of or include items subject to legal
privilege or excluded material; and
(e) that there are reasonable grounds for believing that it is in the
public interest, having regard–

(i) to the benefit likely to accrue to the investigation if the
material is obtained, and

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(ii) to the circumstances under which the person in
possession of the material holds it,

that the material should be produced or that access to it should be given.

(5) Where the judge makes an order under sub-section (2)(b) in relation
to material on any premises he may, on the application of a customs or
police officer, order any person who appears to him to be entitled to grant
entry to the premises to allow a customs or police officer to enter the
premises to obtain access to the material.

(6) An application under sub-section (1) or (5) may be made ex parte to
a judge in chambers.

(7) Provision may be made by rules of court as to–

(a) the discharge and variation of orders under this section; and

(b) proceedings relating to such orders.

(8) Where the material to which an application under sub-section (1)
relates consists of information contained in a computer–

(a) an order under sub-section (2)(a) shall have effect as an order
to produce the material in a form in which it can be taken away
and in which it is visible and legible; and

(b) an order under sub-section (2)(a) shall have effect as an order
to give access to the material in form in which it is visible and
legible.

(9) An order under sub-section (2)–

(a) shall not confer any right to production of, or access to, items
subject to legal privilege or excluded material;

(b) shall have effect notwithstanding any obligation as to secrecy
or other restriction upon the disclosure of information imposed
by statute or otherwise; and

(c) may be made in relation to material in the possession of the
Crown in right of Her Majesty’s Government both in Gibraltar
and in the United Kingdom.

(10) No application for an order shall be made by virtue of sub-section
(2) except in pursuance of a direction given by the Minister responsible for
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justice with the prior consent of the Government expressed in writing by the
Chief Secretary in response to a request received–

(a) from a court or tribunal exercising criminal jurisdiction in the
overseas country or territory in question; or

(b) from any other authority in that country or territory which
appears to him to have the function of making requests for the
purposes of this section;

and any evidence seized by a customs or police officer by virtue of this
section shall be furnished by him to the Attorney General for transmission to
that court, tribunal or authority.

(11) If in order to comply with the request it is necessary for any such
evidence to be accompanied by a certificate, affidavit or other verifying
document, the customs or police officer shall also furnish for transmission
such document of that nature as may be specified in the direction given by
the Minister responsible for justice.

(12) Where the evidence consists of a document, the original or a copy
shall be transmitted, and where it consists of any other article, the article
itself or a description, photograph or other representation of it, shall be
transmitted, as may be necessary in order to comply with the request.”.

Enforcement of overseas forfeiture orders.

44. (1) The Government may, by order, provide for the enforcement in
Gibraltar of any order which –

(a) is made by a court in a country or territory outside Gibraltar,
being a Convention state or, as the case may be, a territory of
such a state to which application of the Vienna Convention has
been extended, designated for the purposes of this section by
the order; and

(b) is for the forfeiture and destruction, or the forfeiture and other
disposal, of anything in respect of which an offence to whom
this section applies has been committed or which was used, or
intended for use, in connection with the commission of such an
offence.

(2) Without prejudice to the generality of subsection (1), an order under
this section may provide for the registration by a court in Gibraltar of any
order as a condition of its enforcement and prescribe requirements to be
satisfied before an order can be registered.

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(3) An order under this section may include such supplementary and
incidental provisions as appear to the Government to be necessary or
expedient, and may apply for the purposes of the order, with such
modifications as appear to the Government to be appropriate, any provisions
relating to confiscation or forfeiture orders under any other enactment.

(4) An order under this section may make different provision for
different cases.

(5) This section applies to an offence which corresponds to a drug
trafficking offence or to an offence under the Drugs (Misuse) Act.

Rules of court.

45. (1) Provision may be made by rules of court for any purpose for which it
appears to the authority having power to make the rules that it is necessary
or expedient that provision should be made in connection with any of the
provisions in sections 37 to 44 and the Schedule.

(2) Rules made for the purposes of the Schedule may, in particular,
make provision with respect to the persons entitled to appear or take part in
the proceedings to which that Schedule applies and for excluding the public
from any such proceedings.

(3) An order under section 44 may authorise the making of rules of court
for any purpose specified in the order.

(4) This section is without prejudice to the generality of any existing
powers to make rules.

Enforcement of external orders.

46. The Government may, by Order–

(a) direct in relation to a country or territory outside Gibraltar
designated by the order ( “designated country”) that subject to
such modifications as may be specified, this Act shall apply to
external confiscation orders and to proceedings which have
been or are to be instituted in the designated country and may
result in an external confiscation order being made there;

(b) make–

(i) such provision in connection with the taking of action in
the designated country with a view to satisfying a
confiscation order;

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(ii) such provision as to evidence or proof of any matter for
the purposes of this section and section 47, and

(iii) such incidental, consequential and transitional provision,

as appears to the Government to be expedient; and

(c) without prejudice to the generality of this subsection, direct
that in such circumstances that may be specified, proceeds
which arise out of action taken in a designated country with a
view to satisfying a confiscation order, shall be treated as
reducing the amount payable under the order to such extent as
may be specified.

(2) In this section “external confiscation order” means an order made by
a court in a designated country for the purpose of recovering, or recovering
the value of, payments or other rewards received in connection with drug
trafficking.

(3) An order under this section may make different provision for
different cases or classes of case.

(4) The power to make an order under this section includes power to
modify this Act in such a way as to confer power on a person to exercise a
discretion.

Registration of external confiscation orders.

47. (1) On an application made by or on behalf of the Government of the
designated country, the court may register an external confiscation order
made there if –

(a) it is satisfied that at the time of registration the order is in force
and not subject to appeal;

(b) it is satisfied, where the person against whom the order is made
did not appear in the proceedings, that he received notice of the
proceedings in sufficient time to enable him to defend them;
and

(c) it is of the opinion that enforcing the order in Gibraltar would
not be contrary to the interests of justice.

(2) In subsection (1), “appeal” includes–

(a) any proceedings by way of discharging or setting aside a
judgment; and
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(b) an application for a new trial or a stay of execution.

(3) The court shall cancel the registration of an external confiscation
order if it appears to the court that the order has been satisfied by payment of
the amount due under it.

(4) In this section “designated country” and “external confiscation
order” have the same meaning as in section 46.


PART IV.
DRUG TRAFFICKING MONEY IMPORTED OR
EXPORTED IN CASH.

Seizure and detention.

48. (1) A customs or police officer may seize and, in accordance with this
section, detain any cash which is being imported into or exported from
Gibraltar if–

(a) its amount is not less than the prescribed sum; and

(b) he has reasonable grounds for suspecting that it directly or
indirectly represents any person’s proceeds of drug trafficking
or is intended by any person for use in drug trafficking.

(2) Cash seized by virtue of this section shall not be detained for more
than 48 hours unless its continued detention is authorised by an order made
by a justice of the peace, and no such order shall be made unless the justice
is satisfied–

(a) that there are reasonable grounds for the suspicion mentioned
in subsection (1); and

(b) that continued detention of the cash is justified while its origin
or derivation is further investigated or consideration is given to
the institution (whether in Gibraltar or elsewhere) of criminal
proceedings against any person for an offence with which the
cash is connected.

(3) Any order under subsection (2) shall authorise the continued
detention of the cash to which it relates for such period, not exceeding three
months beginning with the date of the order, as may be specified in the
order, and the magistrates’ court, if satisfied as to the matters mentioned in
that subsection, may thereafter from time to time by order authorise the
further detention of the cash but so that–
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(a) no period of detention specified in such an order shall exceed
three months beginning with the date of the order; and

(b) the total period of detention shall not exceed two years from
the date of the order under subsection (2).

(4) Any order under subsection (2) shall provide for notice to be given
to persons affected by the order.

(5) Any application for an order under subsection (2) or (3) shall be
made by a customs or police officer.

(6) At any time while cash is detained by virtue of the preceding
provisions of this section–

(a) the magistrates’ court may direct its release if satisfied–

(i) on an application made by the person from whom it was
seized or a person by or on whose behalf it was being
imported or exported, that there are no, or are no longer,
any such grounds for its detention as are mentioned in
subsection (2); or

(ii) on an application made by any other person, that
detention of the cash is not for that or any other reason
justified; and

(b) a customs or police officer may release the cash if satisfied that
its detention is no longer justified but shall first notify the
justice or the magistrates’ court, under whose order it is being
detained.

(7) If, at a time when any cash is being detained by virtue of the
preceding provisions of this section–

(a) an application for its forfeiture is made under section 49, or

(b) proceedings are instituted (whether in Gibraltar or elsewhere)
against any person for an offence with which the cash is
connected,

the cash shall not be released until any proceedings pursuant to the
application or, as the case may be, the proceedings for that offence have
been concluded.

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(8) Cash seized under this Part and detained for more than 48 hours
shall, unless required as evidence for an offence, be held in an interest-
bearing account and the interest accruing on any such cash shall be added to
that cash on its forfeiture or release.

(9) For the purposes of this section, “the prescribed sum” means such
sum in sterling as may, for the time being, be prescribed for the purpose of
this section by an order made by the Government and in determining under
this section whether an amount of currency other than sterling is not less
than the prescribed sum, that amount shall be converted at the prevailing
rate of exchange.

Forfeiture.

49. (1) The magistrates’ court may order the forfeiture of any cash which
has been seized under section 48 if satisfied, on an application made while
the cash is detained under that section, that the cash directly or indirectly
represents any person’s proceeds of drug trafficking or is intended by any
person for use in drug trafficking.

(2) Any application for an order under this section shall be made by a
customs or police officer.

(3) The standard of proof in proceedings on an application under this
section shall be that applicable to civil proceedings, and an order may be
made under this section whether or not proceedings are brought against any
person for an offence with which the cash in question is connected.

Appeal against forfeiture order made by the magistrates’ court.

50.(1) This section applies where an order for the forfeiture of cash (“the
forfeiture order”) is made under section 49 by the magistrates’ court.

(2) Any party to the proceedings in which the forfeiture order is made
(other than the applicant for the order) may, before the end of the period of
30 days beginning with the date on which it is made, appeal to the court.

(3) An appeal under this section shall be by way of a rehearing.

(4) On an application made by the appellant to the magistrates’ court at
any time, that court may order the release of so much of the cash to which
the forfeiture order relates as it considers appropriate to enable him to meet
his legal expenses in connection with the appeal.

(5) The court hearing an appeal under this section may make such order
as it considers appropriate.

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(6) If the court upholds the appeal, the court may order the release of the
cash, or as the case may be, the remaining cash, together with any accrued
interest.

(7) Subsection (3) of section 49 applies in relation to a rehearing on an
appeal under this section as it applies to proceedings under that section.

Rules of court.

51. (1) Provision may be made by rules of court with respect to applications
or appeals to any court under this Part, for the giving of notice of such
applications or appeals to persons affected, for the joinder of such persons as
parties and generally with respect to the procedure under the sections of this
Part before any court.

(2) Subsection (1) is without prejudice to the generality of any existing
power to make rules.

Receipts.

52. (1) Any money representing cash forfeited under this Part or accrued
interest thereon, shall be paid into a special fund established under the
Public Finance (Control and Audit) Act having as prescribed income such
money and accrued interest and in the absence of such fund, into the
Consolidated Fund.

(2) Subsection (1) does not apply–

(a) where an appeal is made under section 50, before the
application is determined or otherwise disposed of; and

(b) in any other case where forfeiture was ordered by the
magistrates’ court, before the end of the period of 30 days
mentioned in section 50(2).

Interpretation of Part IV.

53. In this Part–

“cash” includes coins and notes in any currency;

“exported”, in relation to any cash, includes it being brought to any place
in Gibraltar for the purpose of being exported whether in the
currency in which it is being brought or in some other currency to
which it has been exchanged and by whatever means the export is,
or is intended to be, effected.

1977-09
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PART V.

54-59 Repealed


PART VI.
MISCELLANEOUS AND SUPPLEMENTAL.

Order to make material available.

60. (1) A customs or police officer may, for the purpose of an investigation
into drug trafficking, apply to a judge for an order under subsection (2) in
relation to particular material or material of a particular description.

(2) If on such an application the judge is satisfied that the conditions in
subsection (5) are fulfilled, he may make an order that the person who
appears to him to be in possession of the material to which the application
relates shall–

(a) produce it to a customs or police officer for him to take away,
or

(b) give a customs or police officer access to it,

within such period as the order may specify.

(3) Subsection (2) has effect subject to section 64(11).

(4) The period to be specified in an order under subsection (2) shall be
seven days unless it appears to the judge that a longer or shorter period
would be appropriate in the particular circumstances of the application.

(5) The conditions referred to in subsection (2) are–

(a) that there are reasonable grounds for suspecting that a specified
person has carried on or has benefited from drug trafficking;

(b) that there are reasonable grounds for suspecting that the
material to which the application relates–

(i) is likely to be of substantial value (whether by itself or
together with any other material) to the investigation for
the purpose of which the application is made; and

(ii) does not consist of or include items subject to legal
privilege or excluded material; and
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(c) that there are reasonable grounds for believing that it is in the
public interest, having regard–

(i) to the benefit likely to accrue to the investigation if the
material is obtained, and

(ii) to the circumstances under which the person in
possession of the material holds it,

that the material should be produced or that access to it should
be given.

(6) Where the judge makes an order under subsection (2)(b) in relation
to material on any premises he may, on the application of a customs or
police officer, order any person who appears to him to be entitled to grant
entry to the premises to allow a customs or police officer to enter the
premises to obtain access to the material.

(7) An application under subsection (1) or (5) may be made exparte to a
judge in chambers.

(8) Provision may be made by rules of court as to–

(a) the discharge and variation of orders under this section; and

(b) proceedings relating to such orders.

(9) Where the material to which an application under subsection (1)
relates consists of information contained in a computer–

(a) an order under subsection (2)(a) shall have effect as an order to
produce the material in a form in which it can be taken away
and in which it is visible and legible; and

(b) an order under subsection (2)(a) shall have effect as an order to
give access to the material in a form in which it is visible and
legible.

(10) An order under subsection (2)–

(a) shall not confer any right to production of, or access to, items
subject to legal privilege or excluded material;

(b) shall have effect notwithstanding any obligation as to secrecy
or other restriction upon the disclosure of information imposed
by statute or otherwise; and
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(c) may be made in relation to material in the possession of the
Crown in right of Her Majesty’s Government both in Gibraltar
and in the United Kingdom.

Authority for search.

61. (1) A customs or police officer may, for the purpose of an investigation
into drug trafficking, apply to a judge for a warrant under this section in
relation to specified premises.

(2) On such application the judge may issue a warrant authorising a
customs or police officer to enter and search the premises if the judge is
satisfied –

(a) that an order made under section 60 in relation to material on
the premises has not been complied with;

(b) that the conditions in subsection (3) are fulfilled; or

(c) that the conditions in subsection (4) are fulfilled.

(3) The conditions referred to in subsection (2)(b) are –

(a) that there are reasonable grounds for suspecting that a specified
person has carried on or has benefitted from drug trafficking;

(b) that the conditions in subsection (4)(b) and (c) of section 60 are
fulfilled in relation to any material on the premises; and

(c) that it would not be appropriate to make an order under that
section in relation to the material because–

(i) it is not practicable to communicate with any person
entitled to produce the material;

(ii) it is not practicable to communicate with any person
entitled to grant access to the material or entitled to grant
entry to the premises on which the material is situated; or

(iii) the investigation for the purposes of which the
application is made might be seriously prejudiced unless
a customs or police officer could secure immediate
access to the material.

(4) The conditions referred to in subsection (2)(c) are–

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(a) that there are reasonable grounds for suspecting that a specified
person has carried on or has benefited from drug trafficking;

(b) that there are reasonable grounds for suspecting that there is on
the premises material relating to the specified person or to drug
trafficking which is likely to be of substantial value (whether
by itself together with other material) to the investigation for
the purpose of which the application is made, but that the
material cannot, at the time of the application, be
particularised; and

(c) that–

(i) it is not practicable to communicate with any person
entitled to grant entry to the premises;

(ii) entry to the premises will not be granted unless a warrant
is produced; or

(iii) the investigation for the purposes of which the
application is made might be seriously prejudiced unless
a customs or police officer arriving at the premises could
secure immediate entry to them.

(5) Where a customs or police officer has entered premises in the
execution of a warrant issued under this section, he may seize and retain any
material, other than items subject to legal privilege and excluded material,
which is likely to be of substantial value (whether by itself or together with
other material) to the investigation for the purposes of which the warrant
was issued.

Access and copying.

62. (1) A customs or police officer who seizes anything in the exercise of a
power conferred by this Act shall, if so requested by a person showing
himself–

(a) to be the occupier of premises on which it was seized; or

(b) to have had custody or control of it immediately before the
seizure,

provide that person with a record of what he seized.

(2) The officer shall provide the record within a reasonable time from
the making of the request for it.

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(3) Subject to subsection (8), if a request for permission to be granted
access to anything which–

(a) has been seized by a customs or police officer; and

(b) is retained by customs or the police for the purpose of
investigating an offence,

is made to the officer in charge of the investigation by a person who had
custody or control of the thing immediately before it was so seized or by
someone acting on behalf of such a person, the officer shall allow the person
who had made the request access to it under the supervision of a customs or
police officer.

(4) Subject to subsection (8), if a request for a photograph or a copy of
any such thing is made to the officer in charge of the investigation by a
person who had custody or control of the thing immediately before it was so
seized, or by someone acting on behalf of such a person, the officer shall–

(a) allow the person who made the request access to it under the
supervision of a customs or police officer for the purpose of
photographing or copying it; or

(b) photograph or copy it or cause it to be photographed or copied.

(5) A customs or police officer may also photograph or copy, or have
photographed or copied, anything which he has power to seize without a
request being made under subsection (4).

(6) Where anything is photographed or copied under subsection (4)(b),
the photograph or copy shall be supplied to the person who made the
request.

(7) The photograph or copy shall be so supplied within a reasonable
time from the making of the request.

(8) There is no duty under this section to grant access to, or to supply a
photograph or copy of, anything if the officer in charge of the investigation
for the purposes of which it was seized, has reasonable grounds for
believing that to do so, would prejudice–

(a) that investigation;

(b) the investigation of an offence other than the offence for the
purposes of investigating which the thing was seized; or

(c) any criminal proceeding which may be brought as a result of–
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(i) the investigation of which he is in charge; or

(ii) any such investigation as is mentioned in paragraph (b).

Retention.

63. (1) Subject to subsection (4), anything which has been seized by a
customs or police officer or taken away by a customs or police officer under
the provisions of section 60 or 61, may be retained as long as is necessary in
all the circumstances.

(2) Without prejudice to the generality of subsection (1)–

(a) anything seized under the provisions of sections 60 and 61 may
be retained, except as provided by subsection (4)–

(i) for use as evidence at a trial for an offence; or

(ii) for forensic examination or for investigation in
connection with an offence; and

(b) anything may be retained in order to establish its lawful owner,
where there are reasonable grounds for believing that it has
been obtained in consequence of the commission of an
offence.

(3) Nothing which is seized on the grounds that it may be used–

(a) to cause physical injury to any person;

(b) to damage property;

(c) to interfere with evidence; or

(d) to assist in escape from customs or police detention or lawful
custody,

may be retained when the person from whom it was seized is no longer in
customs or police detention or the custody of a court.

(4) Nothing may be retained for either of the purposes mentioned in
subsection (2)(a) if a photograph or copy would be sufficient for that
purpose.

(5) In this section “an offence” means an offence under this Act or under
the Drugs (Misuse) Act.
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Disclosure of information held by the Crown.

64. (1) Subject to subsection (4), the court may, on an application by the
prosecutor, order any material mentioned in subsection (3) which is in the
possession of the Crown to be produced to the court within such period as
the court may specify.

(2) The power to make an order under subsection (1) is exercisable if–

(a) the powers conferred on the court by sections 27(1) and 28(1)
are exercisable by virtue of subsection (1) of section 26; or

(b) those powers are exercisable by virtue of subsection (3) of that
section and the court has made a restraint or charging order
which has not been discharged;

but where the power to make an order under subsection (1) is exercisable by
virtue only of paragraph (b), subsection (4) of section 26 shall apply for the
purposes of this section as it applies for the purposes of sections 27 and 28.

(3) The material referred to in subsection (1) is any material which–

(a) has been submitted to an officer of the Crown by the defendant
or by a person who has at any time held property which was
realisable property;

(b) has been made by an officer of the Crown in relation to the
defendant or such a person; or

(c) is correspondence which passed between an officer of the
Crown and the defendant or such a person;

and an order under that subsection may require the production of all such
material or of a particular description of such material, being material in the
possession of the Crown.

(4) An order under subsection (1) shall not require the production of any
material unless it appears to the court that the material is likely to contain
information that would facilitate the exercise of the powers conferred on the
court by sections 27 to 30 or on a receiver appointed under section 27 or 30
or in pursuance of a charging order.

(5) The court may by order authorise the disclosure to such a receiver of
any material produced under subsection (1) or any part of such material but
the court shall not make an order under this subsection unless a reasonable
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opportunity has been given for an officer of the Crown to make
representation to the court.

(6) Material disclosed in pursuance of an order under subsection (5)
may, subject to any conditions contained in the order, be further disclosed
for the purposes of the functions under this Act of the receiver or the court.

(7) The court may by order authorise the disclosure to a person
mentioned in subsection (8) of any material produced under subsection (1)
or any part of such material, but the court shall not make an order under this
subsection unless–

(a) a reasonable opportunity has been given for an officer of the
Crown to make representations to the court; and

(b) it appears to the court that the material is likely to be of
substantial value in exercising functions relating to drug
trafficking.

(8) The persons referred to in subsection (7) are–

(a) any customs officer;

(b) any police officer; and

(c) any person engaged by the Crown in right of Her Majesty’s
Government in Gibraltar to provide legal services to customs or
the police.

(9) Material disclosed in pursuance of an order under subsection (7)
may, subject to any conditions contained in the order, be further disclosed
for the purposes of functions relating to drug trafficking.

(10) Material may be produced or disclosed in pursuance of this section
notwithstanding any obligation as to secrecy or other restriction upon the
disclosure of information imposed by statute or otherwise.

(11) An order under subsection (1) and, in the case of material in the
possession of the Crown, an order under section 60(2) may require an
officer of the Crown (whether named in the order or not) who may for the
time being be in possession of the material concerned to comply with it, and
such an order shall be served as if the proceedings were civil proceedings
against the Crown.

(12) The person on whom such an order is served–

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(a) shall take all reasonable steps to bring it to the attention of the
officer concerned; and

(b) if the order is not brought to that officer’s attention within the
period referred to in subsection (1), shall report the reasons for
the failure to the court;

and it shall also be the duty of any other officer of the Crown in receipt of
the order to take such steps as are mentioned in paragraph (a).

Offence of prejudicing investigation.

65. (1) Where, in relation to an investigation into drug trafficking–

(a) an order under section 60 has been made or has been applied
for and has not been refused, or

(b) a warrant under section 61 has been issued,

a person is guilty of an offence if, knowing or suspecting that the
investigation is taking place, he makes any disclosure which is likely to
prejudice the investigation.

(2) In proceedings against a person for an offence under this section, it is
a defence to prove –

(a) that he did not know or suspect that the disclosure was likely to
prejudice the investigation; or

(b) that he had lawful authority or reasonable excuse for making
the disclosure.

(3) Nothing in subsection (1) makes it an offence for a professional legal
adviser to disclose any information or other matter–

(a) to, or to a representative of, a client of his in connection with
the giving by the adviser of legal advice to the client; or

(b) to any person–

(i) in contemplation of, or in connection with, legal
proceedings; and

(ii) for the purpose of those proceedings.

(4) Subsection (3) does not apply in relation to any information or other
matter which is disclosed with a view to furthering any criminal purpose.
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(5) A person guilty of an offence under this section shall be liable–

(a) on summary conviction, to imprisonment for a term not
exceeding six months or to a fine not exceeding level 5 on the
standard scale or to both; and

(b) on conviction on indictment, to imprisonment for a term not
exceeding five years or to a fine or to both.

Extension of certain offences to Crown servants and exemptions for
regulators, etc.

66. (1) The Government may, by regulations, provide that, in such
circumstances as may be prescribed, sections 54(2), 55, 56, 57, 58 and 59
shall apply to such persons in the public service of the Crown, or such
category of persons in that service as may be prescribed.

(2) Section 57 shall not apply to–

(a) any person designated by regulations made by the Government
for the purposes of this paragraph; or

(b) in such circumstances as may be prescribed, any person who
falls within such category of persons as may be prescribed for
the purposes of this paragraph.

(3) The Government may designate, for the purpose of subsection (2)(a),
any person appearing to it to be performing regulatory, supervisory,
investigative, or registration functions.

(4) The category of persons prescribed by the Government for the
purpose of subsection (2)(b), shall be such category of persons connected
with the performance of any designated person or regulatory, supervisory,
investigative or registration functions as it considers appropriate to
prescribe.

(5) In this section “the Crown” means the Crown in right of Her
Majesty’s Government both in Gibraltar and in the United Kingdom.

Authorisation of delay in notifying arrest.

67. Notwithstanding the provisions of section 19 of the Criminal Procedure
Act, the giving of information about a person’s arrest to a person named by
him may be delayed if a police officer of the rank of Superintendent or
above has reasonable grounds for believing–

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(a) that the detained person has benefitted from drug trafficking,
and

(b) that the recovery of the value of that person’s proceeds of drug
trafficking will be hindered by telling the person named of the
arrest.

Power to make regulations.

68. (1) The Government may make regulations for the purpose of–

(a) giving effect to Council Directive 91/308/EEC or any other
Community legal obligation on the prevention of the use of the
financial system for the purpose of money laundering;

(b) Omitted

(c) giving effect to any Convention or Treaty relating to drug
trafficking which has been ratified by the United Kingdom and
the application of which has been extended to Gibraltar;

(d) prescribing anything required or permitted by this Act to be
prescribed;

(e) giving proper effect to this Act.

(2) Regulations made under subsection (1) may–

(a) where they are made for the purpose of paragraph (a) of that
subsection–

(i) prescribe offences to which the provisions or some of the
provisions of the Act are to be applied;

(ii) prescribe the provisions of the Act which are to be
applied to prescribed offences;

(iii) make such modifications to the prescribed provisions as
in the opinion of the Government are necessary or
expedient and “modification” includes additions,
alterations and omissions;

(b) provide that a contravention of a prohibition or requirement
imposed by or under the regulations, shall constitute an offence
for which the offender shall be liable, on summary conviction,
to a fine not exceeding a specified amount or to imprisonment
not exceeding a specified period or to both, and on conviction
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on indictment, to a fine or to imprisonment or to both and the
provisions of section 23(b) of the Interpretation and General
Clauses Act shall not operate to limit the amount or the period
specified;

(c) provide for any specified defence to be available, either
generally or in specified circumstances, in proceedings for an
offence under the regulations;

(d) make provision with respect to the institution of proceedings
for an offence under the regulations, with respect to the
circumstances in which, in the case of an offence committed by
a body corporate, an officer of that body shall also be guilty of
an offence, with respect to the onus of proof of specified
matters and other questions of evidence in proceedings for an
offence, and would expect the powers of the Court to make an
order of any kind provided for by this Act;

(e) provide for the extent to which the regulations shall bind the
Crown and for the extent to which they shall apply to persons
in the service of the Crown;

(f) make provision in respect of fees or other charges;

(g) make such transitional, incidental or supplementary provisions
as the Government may deem proper for the better execution of
this Act or the regulations made thereunder.

(3) Regulations shall not be made under this section having
retrospective effect except in a manner comparable with the provisions of
section 1(2) of this Act.

Repeal of the Drug Trafficking Offences Act, 1988.

69. (1) The Drug Trafficking Offences Act, 1988 is hereby repealed.

(2) All subordinate legislation made under the Drug Trafficking
Offences Act,1988 is hereby revoked to the extent and at the time specified
by any regulations made under section 68.

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SCHEDULE

Section 40

GIBRALTAR EVIDENCE FOR USE OVERSEAS:
PROCEEDINGS OF NOMINATED COURT

Securing attendance of witness.

1. The court shall have the like powers for securing the attendance of a
witness for the purpose of the proceedings as it has for the purpose of other
proceedings before the court.

Power to administer oaths.

2. The court may, in the proceedings, take evidence on oath.

Privilege of witnesses.

3. (1) A person shall not be compelled to give in the proceedings any
evidence which he could not be compelled to give–

(a) in criminal proceedings in Gibraltar; or

(b) subject to subparagraph (2), in criminal proceedings in the
country or territory from which the request for the evidence has
come.

(2) Subparagraph (1) shall not apply unless the claim of the person
questioned to be exempt from giving the evidence is conceded by the court,
tribunal or authority which made the request.

(3) Where such a claim made by any person is not conceded as
aforesaid, he may, subject to the other provisions of this paragraph, be
required to give the evidence to which the claim relates but the evidence
shall not be transmitted to the court, tribunal or authority which requested it
if a court in the country or territory in question, on the matter being referred
to it, upholds the claim.

(4) Without prejudice to subparagraph (1), a person shall not be
compelled under this Schedule to give any evidence if his doing so would be
prejudicial to the security of Gibraltar, and a certificate signed by or on
behalf of the Governor to the effect that it would be so prejudicial for the
person to do so, shall be conclusive evidence of that fact.

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(5) Without prejudice to subparagraph (1), a person shall not be
compelled under this Schedule to give any evidence in his capacity as an
officer or servant of the Crown.

(6) In this paragraph references to giving evidence include references to
answering any question and to producing any document, and the references
in subparagraph (3) to the transmission of evidence given by a person shall
be construed accordingly.

Transmission of evidence.

4. (1) The evidence received by the court shall be furnished to the Minister
responsible for justice for transmission to the court, tribunal or authority that
made the request.

(2) If, in order to comply with the request , it is necessary for the
evidence to be accompanied by any certificate, affidavit or other verifying
document, the court shall also furnish for transmission such document of
that nature as may be specified in the notice nominating the court.

(3) Where the evidence consists of a document, the original or a copy
shall be transmitted, and where it consists of any other article, the article
itself or a description, photograph or other representation of it shall be
transmitted, as may be necessary in order to comply with the request.

Supplementary.

5. For the avoidance of doubt, it is hereby declared that the Bankers’
Books Evidence Act 1879 applies to the proceedings as it applies to other
proceedings before the court.

Costs.

6. No order for costs shall be made in the proceedings.

Related Laws