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Drug Trafficking Offences Act


Published: 1995-03-09

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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

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1995-06

Drug Trafficking Offences

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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.

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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.

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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.

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© 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);

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“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;

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“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

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(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

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(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–

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(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

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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

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(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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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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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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(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

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(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.

PART III.

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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.