Drug Trafficking Suppression Act 1988

(b) any right, power or privilege in connection with the property.

(4) Without prejudice to the generality of subsection (3), the court may have regard to —

(a) shareholdings in, debentures over, or directorships in, any company that has an interest (whether direct or in direct) in the property;

(b) any trust that has a relationship to the property; and

(c) family, domestic and business relationships between persons having any interest in the property, or in com panies of the kind referred to in paragraph (a), or in trusts of the kind referred to in paragraph (b), and any other persons.

(5) Subject to subsections (6) and (7), for the purposes of this Act the value of property (other than cash) in relation to any person holding the property —

(a) where any other person holds an interest in the prop erty, is —

(i) the market value of the first mentioned person's beneficial interest in the property; less

(ii) the amount required to discharge any incum brance (other than a charging order) on that in terest; and

(b) in any other case, its market value.

(6) References in this Act to the value at any time ("the material time") of a gift or transfer of property are references to —

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

(b) where subsection (7) applies, the value there mentioned,

whichever is the greater.

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

[section 3 amended by 1992:67 effective 16 July 1992]

Definitions of certain terms

4 (1) In this Act —

(a) "a benefit" includes any property, service or advantage, whether direct or indirect;

(b) "to benefit" has a corresponding meaning;

(c) a reference to a benefit derived or obtained by, or other wise accruing to, a person ("A") includes a reference to a benefit derived or obtained by, or otherwise accruing to, another person at A's request or direction.

(2) Subject to subsection (3), for the purposes of this Act. a person is to be taken to be convicted of an offence if —

(a) he is convicted, whether summarily or on indictment, of the offence; or

(b) he is charged with the offence and is found guilty, but is discharged; or

(c) a court with his consent takes the offence, of which he has not been found guilty, into account in sentencing him for another offence.

(3) A person's conviction of an offence does not count as a con viction for the purposes of this Act—

(a) where he is to be taken to have been convicted of the of fence by reason of subsection (2)(a), if the conviction is quashed or set aside;

(b) where he is to be taken to have been convicted of the of fence by reason of subsection (2)(b), if the finding of guilt is quashed or set aside;

(c) where he is to be taken to have been convicted of the of fence by reason of subsection (2)(c), if either of the fol lowing events occurs, that is to say —

(i) his conviction of the other offence referred to in subsection (2)(c) is quashed or set aside;

(ii) the decision of the court to take the offence into
account in sentencing him for that other offence is quashed or set aside.

(4) In this Act, subject to section 20(3)(a), a person in relation to whom a section 6 application has been made is referred to as "the de fendant".

(5) In this Act, "drug trafficking period" is to be construed in the following way, that is to say —

(a) where the drug trafficking in fact extended over a period, references to the drug trafficking period are to be taken as references to the time commencing on the day the drug trafficking commenced and ending on the day the drug trafficking ended;

(b) where the drug trafficking did not in fact extend over a period —

(i) references to a period are to be taken as refer ences to a time; and

(ii) references to a time during the drug trafficking period are to be disregarded.

(6) A gift (including a gift made before the commencement day) is caught by this Act if —

(a) it was made by the defendant at any time since the be ginning of the period of six years ending when the sec tion 6 application was made in relation to 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; or

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

(7) 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 another person directly or indirectly for a consideration the value of which is significantly less than the value of the consideration provided by the de fendant; and

(b) in those circumstances, subsection (6) applies 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 para graph (a) bears to the value of the consideration provided by the defendant.

(8) In this Act "items subject to legal privilege" means—

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

(b) communications between a professional legal adviser and his client or between such an adviser and any other person made in connection with or in contemplation of legal proceedings and for the purpose of such proceed ings,

when they are in the possession of a person who is entitled to possession of them.

(9) Items held with the intention of furthering a criminal pur pose are not items subject to legal privilege.

(10) In this Act "realisable property" means, subject to subsec tion (11) —

(a) any property of the defendant; and

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

(11) Property is not realisable property if an order under section 37 of the Misuse of Drugs Act 1972 [title 11 item 4] is in force in respect of the property.

[section 4 amended by 1992:67 effective 16 July 1992]

be disregarded.

(5) If evidence is given at the hearing that the value of the de fendant's property at any time during or after the drug trafficking period exceeded the value of the defendant's property before that period, then the court shall, subject to subsection (6), treat the value of the benefits as being not less than the amount of the excess.

(6) If, after evidence of the kind referred to in subsection (5) is given, the defendant satisfies the court that the whole or any part of the excess was due to causes unrelated to the drug trafficking, subsection (5) does not apply to the excess or, as the case may be, that part.

(7) The court shall have regard to the evidence before it con cerning all or any of the following —

(a) the money, or the value of the property other than money, that came into the possession or under the con trol of —

(i) the defendant; or

(ii) another person at the request or direction of the defendant,

by reason of the drug trafficking;

(b) the value of any other benefit provided to —

(i) the defendant; or

(ii) another person at the request or direction of the defendant,

by reason of the drug trafficking;

(i) the market value, at the time of the defendant's doing that act or thing, of similar or substan tially similar controlled drugs; and

(ii) the amount that was, or the range of amounts that were, ordinarily paid for the doing of a sim ilar or substantially similar act or thing;

(d) the value of the defendant's property before, during and after the drug trafficking period;

(e) the defendant's income and expenditure before, during and after the drug trafficking period.

(8) Where by reason of the defendant's bankruptcy property of his has vested in the trustee of his bankruptcy, that property is to be taken to continue to be the defendant's property.

(9) A police officer experienced in the investigation of drug of fences may testify at the hearing, to the best of his information, knowl edge and belief —

(a) with respect to the amount that was the market value of a controlled drug at a particular time or drug at a par ticular period; or

(b) with respect to the amount, or the range of amounts, that was the amount, or range of amounts, ordinarily paid at a particular time or during a particular period for the doing of an act or thing in relation to a controlled drug,

notwithstanding any rule of law or practice relating to hearsay evidence; and such an officer's testimony is prima facie evidence of the matters testified to.

Statements relating to drug trafficking

13 (1) Where upon the hearing of a section 6 application —

(a) the Attorney-General tenders to the court a statement as to any matters relevant to determining whether the de fendant has carried on drug trafficking or to ascertaining or calculating his benefits from drug trafficking; and

(b) the defendant accepts any allegation in the statement, the court may, for the purposes of that determination, ascertainment or calculation, treat the defendant's ac ceptance as conclusive of the allegation.

(2) Where —

(a) a statement is tendered as mentioned in subsection (1)(a); and

(b) the court is satisfied that a copy of the statement has been served on the defendant,

the court may require him to indicate to what extent he accepts each al legation in the statement and, so far as he does not accept any such al-
legation, to indicate any matters he proposes to rely on.

(3) If the defendant fails in any respect to comply with a re quirement under subsection (2), the court may treat him for the pur poses of this section as accepting every allegation in the statement apart from —

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

(b) any allegation that he has received benefits from drug trafficking.

(4) An allegation may be accepted or a matter indicated for the purposes of this section either orally before the court or in writing.

(5) An acceptance by the defendant under this section that he received any benefit from drug trafficking is not admissible in any pro ceedings for any offence.

PART III

ENFORCEMENT OF CONFISCATION ORDERS

Effect of confiscation order forfeiting property

14 Subject to sections 15 and 16, where a confiscation order directs the forfeiture of property, the property vests absolutely in the Govern ment by virtue of the order and may be disposed of or otherwise dealt with accordingly.

Enforcement of confiscation order directing payment of money

15 Where a confiscation order directs a person to pay a money amount to the Crown —

(a) the direction is deemed to be an order made by the court in civil proceedings instituted by the Government to re cover a debt due from that person to the Government; and

(b) the amount so directed to be paid is deemed to be a judgment debt;

and payment may be enforced accordingly.

Registrable property

16 Where property directed by a confiscation order to be forfeited is registrable property —

(a) the property vests in the Government in equity but does not vest in the Government at law until the applicable registration requirements have been complied with;

(b) the Government is entitled to be registered as owner of the property; and

(c) the Minister has power on behalf of the Government to do, or authorise the doing of, anything necessary or con venient to obtain the registration of the Government as owner. including the execution of any instrument re quired to be executed by a person transferring an inter est in property of that kind.

Protection of rights of third parties

17 (1) Where a section 6 application is made for a confiscation or der directing the forfeiture of property, a person who asserts an interest in the property may apply to the court, before the confiscation order is made, for an order under subsection (2).

(2) If a person applies to the court for an order under this sub section in respect of his interest in property and the court is satisfied—

(a) that he was not in any way involved in the defendant's drug trafficking; and

(b) where he acquired the interest during or after the drug trafficking period, that he acquired the interest —

(i) for sufficient consideration; and

(ii) without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was, at the time he acquired it, prop erty that was involved in drug trafficking,

the court shall make an order declaring the nature, extent and value (as at the time the order is made) of his interest.

(3) Subject to subsection (4), where a confiscation order has al ready been made directing the forfeiture of property, a person who as serts an interest in the property may apply under this subsection to the court for an order under subsection (2).

(4) A person who —

(a) had knowledge of the section 6 application for the con fiscation order before the order was made: or

(b) appeared at the hearing of that application,

shall not be permitted to make an application under subsection (3) ex cept with the leave of the court.

(5) A person who makes an application under subsection (1) or (3) shall give not less than seven days written notice of the making of the application to the Attorney-General, who shall be a party to any pro ceedings on the application.

PART IV

CONTROL OF PROPERTY LIABLE TO CONFISCATION

Restraint orders

18 (1) The powers conferred on the court by this section are exer cisable in the circumstances set forth in section 20.

(2) The court may by order (a "restraint order") prohibit any person from dealing with any realisable property, subject to such condi tions as may be specified in the order.

(3) A restraint order may apply —

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

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

(4) This section does not have effect in relation to any property for the time being subject to a charge under section 19.

(5) A restraint order —

(a) may be made only on an application by the Attorney-General; and

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

(6) A restraint order —

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

(b) shall be discharged when the proceedings referred to in section 20(1)(c) or the proceedings on the section 6 application referred to in section 20(2)(b) are concluded.

(7) Where the court has made a restraint order, the court may at any time appoint a receiver —

(a) to take possession of any realisable property; and

(b) in accordance with the directions of the court, 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 the court may require any person having possession of prop erty 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 ex pression) —

(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 Bermuda.

(9) Where the court has made a restraint order, a police officer may seize realisable property for the purpose of preventing its removal from Bermuda.

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

[section 18 amended by 1992:67 effective 16 July 1992]

Charging orders

19 (1) The powers conferred on the court by this section are exer cisable in the circumstances set forth in section 20.

(2) The court may make a charging order on realisable property for the purpose of securing, for the satisfaction of a confiscation order, the availability of any realisable property directed by such an order to be forfeited, or any forfeiture amount directed by such an order to be paid.

(3) 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 the purpose mentioned in sub section (2).

(4) A charging order —

(a) may be made only on an application by the Attorney-General; and

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

(5) Subject to subsection (1), a charge may be imposed by a charging order only on —

(a) an interest in realisable property, being 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 —

(i) in an asset of a kind mentioned in subsection (6); or

(ii) under a trust; or

(b) an interest in realisable property held by a person as trustee of a trust if the interest is in such an asset or is an interest under another trust and a charge may by virtue of paragraph (a) be imposed by a charging order on the whole beneficial interest under the first-men tioned trust.

(6) The assets referred to in subsection (5) are —

(a) land in Bermuda: or

(b) securities of any of the following kinds —

(i) stock of the Government;

(ii) stock of a body incorporated in Bermuda;

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

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

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

(8) The court may make an order discharging or varying the charging order, and shall make an order discharging the charging order if the purpose for which the charge was imposed (as mentioned in sub section (2)) has been fulfilled.

Cases in which restraint orders and charging orders may be made

20 (1) The powers conferred on the court by sections 18 and 19 are exercisable where —

(a) the court is satisfied that there is reasonable cause to believe that the defendant has proceeds of drug traf ficking or has derived benefits from drug trafficking; and

(b) a section 6 application has been made for a confiscation order against the defendant; and

(2) Those powers are also exercisable where the court is satis fied —

(a) that there is reasonable cause to believe that a person has committed a drug offence; and

(b) that a section 6 application will be made for a confiscation order against him if he is convicted in proceedings for that offence.

(3) For the purposes of sections 18 and 19, at any time when those powers are exercisable before proceedings have been instituted as mentioned in subsection (2)(b) —

(a) references in this Act to the defendant are to be con strued as references to the person referred to in subsec tion (2); and

(b) references in this Act to realisable property are to be construed as if, immediately before that time, proceed ings had been instituted against that person for a drug offence.

(4) Where the court has made an order under section 18 or 19 by virtue of subsection (2), the court shall discharge the order if the pro posed proceedings are not instituted within such time as the court con siders reasonable.

[section 20 amended by 1992:67 effective 16 July 1992]

Charging orders: supplementary provisions

21 (1) A charging order may be made either absolutely or subject to conditions as to notifying any person holding an interest in the prop erty to which the order relates, or as to the time when the charge is to become enforceable, or as to other matters.

(2) Subject to any provision made under section 22 or by rules of court, a charge imposed by a charging order has the like effect, and is enforceable in the same manner, as an equitable charge existing against the property charged.

Realisation of property

22 (1) Where a confiscation order —

(a) has been made; and

(b) is not subject to appeal,

the court may on an application by the Attorney-General exercise the powers conferred upon the court by this section.

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

(3) The court may empower a receiver appointed under sub section (2) or in pursuance of a charging order —

(a) to enforce any charge imposed under section 19 on re alisable 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 19, to take possession of the property subject to such con ditions or exceptions as may be specified by the court.

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

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

(6) The court may order any person holding an interest in real isable property to make such payment to the receiver in respect of any beneficial interest held by the defendant or, as the case may be, the re cipient of a gift caught by this Act as the court may direct, and the court may, 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 19.

(8) The court shall not in respect of any property exercise the powers conferred by subsection (3)(a) or by subsection (5) or (6) unless a reasonable opportunity has been given for persons holding any interest in the property to make representations to the court in accordance with section 17.

Application of sums realised

23 (1) Subject to subsection (2), the following property in the hands of a receiver appointed under section 18 or 22 or in pursuance of a charging order, that is to say —

(a) any sum representing the product of the enforcement of any charge imposed under section 19;

(b) any property in the receiver's hands by virtue of powers conferred upon him under section 18(7) or section 22(3);

shall, after such payments, if any, have been made thereout as the court may direct, be applied on the defendant's behalf towards the satisfaction of the confiscation order.

(2) If, after the confiscation order has been satisfied, any such sum or property as aforesaid remains in the hands of the receiver, the receiver shall distribute it —

(a) among such of those persons 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 those persons to make representations to the court.

(3) Property received by the Registrar of the court on account of a confiscation order shall be applied as follows —

(a) if received by him from a receiver under subsection (1),

(a) in relation to property which is not realisable property, being action which he would be entitled to take if the property were realisable property;

(b) believing, and having reasonable grounds for 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 re sulting 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 ex penses of a receiver so appointed shall be paid out of the Consolidated Fund in either of the following cases, that is to say—

(a) if payment cannot be made in respect of the remunera tion and expenses under section 23(3)(a);

(b) if, where the receiver was appointed in the exercise of powers conferred by section 20(2), proceedings for a drug offence are not instituted.

Compensation

27 (1) Where upon the making of a section 6 application the court declines to make a confiscation order, the court shall on the application of a person who held realisable property order compensation to be paid to him if the requirements of subsection (2) are fulfilled.

(2) The court shall order compensation to be paid if the court is satisfied—

(a) that there has been some serious default in the investi gation or conduct of the matter and that, but for that default, the section 6 application would not have been instituted or continued; and

(b) that the applicant has suffered substantial loss in con sequence of anything done in relation to the property by or in pursuance of an order of the court under sections 18 to 21.

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

(4) Compensation payable under this section shall be paid out of the Consolidated Fund.

PART V

OFFENCES RELATING TO DRUG TRAFFICKING

Assisting another to retain benefits from drug trafficking

28 (1) Subject to subsections (2) and (3), if a person enters into or is otherwise concerned in an arrangement whereby —

(a) the retention or control by or on behalf of another ("B") of B's benefits from drug trafficking is facilitated (whether by concealment, removal from the jurisdiction, transfer to nominees or otherwise); or

(b) B's benefits from drug trafficking —

(i) are or may be used to secure that funds are placed at B's disposal; or

(ii) are or may be used to acquire property by way of investment for B,

knowing or suspecting or having grounds for suspecting that B is some one who carries on or has carried on, or has benefited from, drug traf ficking, that person commits an offence against this section.

(2) Where a person discloses to a police officer a suspicion or belief that any funds or investments are derived from or used in connec tion with drug trafficking, or any matter on which such a suspicion or belief is based —

(a) the disclosure is not a breach of any restriction upon the disclosure of information imposed by contract; and

(b) if he does any act in contravention of subsection (1) and the disclosure relates to the arrangement concerned, he does not commit an offence against this section if the disclosure is made in accordance with this paragraph, that is to say —

(i) it is made before he does the act concerned, be ing an act done with the consent of the police officer; or

(ii) it is made after he does the act, but is made on his own initiative and as soon as it is reasonable for him to make it.

(3) In proceedings against a person for an offence against this
section, it is a defence for him to prove —

(a) that he did not know or suspect or have grounds for suspecting that the arrangement related to any person's benefits from drug trafficking; or

(b) that he did not know or suspect or have grounds for suspecting that by the arrangement the retention or control of any property by or on behalf of B was or might be facilitated or, as the case may be, that by the ar rangement any property was or might be used as men tioned in subsection (1); or

(i) he intended to disclose to a police officer such a suspicion, belief or matter as is mentioned in subsection (2) in relation to the arrangement; but

(ii) there is reasonable excuse for his failure to make disclosure in accordance with subsection (2)(b).

(4) Punishment on conviction of an offence against this sec tion—

(a) on conviction on indictment: imprisonment for 14 years or a fine of $25,000 or both; and

(b) on summary conviction: imprisonment for 5 years or a fine of $10,000 or both.

Living off drug trafficking

29 (1) It is an offence against this section for a person to live off drug trafficking.

(2) A person commits the above offence if and only if —

(a) having been convicted (whether before, on or after the commencement day) of one or more offences under the Misuse of Drugs Act 1972 [title 11 item 4], he has been convicted on or after the commencement day of a further such offence; and

(b) he holds property; and

(c) the court is satisfied by evidence before the court that there was no lawful source, available to him, that ac counts for his acquisition of the property; and

(d) he does not prove that he acquired the property by law ful means.

(3) Punishment on conviction on indictment of an offence against this section: imprisonment for 14 years or a fine of $100,000 or both.

PART VI

INVESTIGATIONS INTO DRUG TRAFFICKING

Order to make material available

30 (1) Without prejudice to any other procedure provided by any other law, a police officer may, for the purpose of an investigation into drug trafficking, apply to a magistrate for an order under subsection (2) in relation to particular material or material of a particular description.

(2) Subject to section 32(11), if on such in application the magistrate is satisfied that the conditions in subsection (4) of this section are fulfilled, the magistrate may make an order that the person who ap pears to him to be in possession of the material to which the application relates shall—

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

(b) give a police officer access to it,

within such period as is specified in the order.

(3) The period to be specified in an order under subsection (2) is seven days unless it appears to the magistrate that a longer or shorter period would be appropriate in the circumstances.

(4) 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; and

(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 other material) to the in vestigation for the purpose of which the applica-
tion is made; and

(ii) does not consist of or include items subject to legal privilege.

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

(6) Where the material to which an application under this sec tion relates consists of information contained in a computer—

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

(7) An order under subsection (2) —

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

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

Authority for search

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

(2) On such an application, the magistrate may issue a warrant authorising a police officer to enter and search the premises if the mag istrate is satisfied —

(a) that an order made under section 30 in relation to mate rial on the premises has not been complied with; or

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

(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 benefited from drug trafficking; and

(b) that the conditions in section 30(4)(b) are fulfilled in re lation to any material on the premises; and

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

(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 preju diced unless a police officer could secure imme diate access to the material.

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

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

(b) that there are reasonable grounds for suspecting that there is on the premises material, relating to the speci fied person or to drug trafficking, which is likely to be of substantial value (whether by itself or 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

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

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

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

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

Disclosure of information held by Government departments

32 (1) Notwithstanding any provision in any other law but subject to subsection (4), the court may on application by the Attorney-General order any material mentioned in subsection (3) which is in the posses sion of a Government department to be produced to the court within such period as the court specifics.

(2) The power to make an order under subsection (1) is exercis able if —

(a) the powers conferred on the court by sections 18 and 19 are exercisable by virtue of section 20(1); or

(b) those powers are exercisable by virtue of section 20(2) 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) of this sec tion is exercisable by virtue only of paragraph (b) of this subsection, section 20(3) applies for the purposes of this section as it applies for the purposes of sections 18 and 19.

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

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

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

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

(4) An order under subsection (1) shall not require the produc tion of any material unless it appears to the court that the material is likely to contain information that would facilitate the exercise of the pow ers conferred on the court by sections 18 to 22 or on a receiver appointed under section 18 or 22 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 subsec tion unless a reasonable opportunity has been given for an officer of the department to make representations to the court.

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

(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 department 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 the Attorney-General and a police officer.

(9) Material disclosed in pursuance of an order under subsec tion (1) may, subject to any conditions contained in the order, be further disclosed for the purposes of any investigation or proceedings 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, being an obligation or restriction im-
posed by statute or otherwise.

(11) An order under subsection (1) of this section and, in the case of material in the possession of a Government department, an order under section 30(2) may require any officer of the department (whether he is named in the order or not) who may for the time being be in pos session of the material concerned to comply with the order; and such an order shall be served as if the proceedings were civil proceedings against the department.

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

(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 re port the reasons for the failure to the court;

and it is also the duty of any other officer of the department who receives the order to take such steps as are mentioned in paragraph (a).

Offence of prejudicing investigation

33 (1) Where, in relation to an investigation into drug trafficking, an order under section 30 has been made or has been applied for and has not been refused, or a warrant under section 31 has been issued, a person who, knowing or suspecting or having grounds for suspecting that the investigation is taking place, makes any disclosure which is likely to prejudice the investigation is guilty of an offence.

(2) In proceedings against a person for an offence against sub section (1), it is a defence for him to prove —

(a) that he did not know or suspect or have grounds for suspecting that the disclosure was likely to prejudice the investigation; or

(b) that he had lawful authority or reasonable excuse for making the disclosure.

(3) A person who —

(a) contravenes a duty which is placed upon him by any provision of section 30, 31 or 32, or which he has by virtue of any such provision; or

(b) wilfully obstructs another person acting in the exercise of any powers conferred upon that other person by any such provision,

is guilty of an offence.

(4) Punishment on conviction of an offence against this sec tion—

(a) on conviction on indictment: imprisonment for 5 years or a fine of $10,000 or both; and

(b) on summary conviction: imprisonment for 2 years or a fine of $5,000 or both.

Access to certain official records

34 (1) The Registrar-General shall, on an application under sub section (2) or (3) made in relation to a person specified in the application or to property so specified, provide the applicant with any information kept by the Registrar-General under the Registrar-General (Recording of Documents) Act 1955 [title 28 item 2] which relates to the person or prop erty so specified.

(2) An application may be made by the Attorney-General or any police officer not below the rank of superintendent; and on an applica tion under this subsection an appropriate certificate shall be given to the Registrar-General.

(3) An application may be made by a receiver appointed under section 18 or 22; and on an application under this subsection there shall be given to the Registrar-General —

(a) a document certified by the Registrar of the court to be a true copy of the order appointing the receiver; and

(b) a certificate that there are reasonable grounds for sus pecting that there is information kept by the Registrar-General which is likely to facilitate the exercise of the powers conferred on the receiver in respect of the person or property specified in the application.

(4) The reference in subsection (1) to the provision of informa tion is a reference to its provision in documentary form.

(5) In subsection (2) —

(a) "appropriate certificate" means a certificate —

(i) that there are reasonable grounds for suspecting that there is information kept by the Registrar-General which is likely to be of
substantial value (whether by itself or together with other infor mation) to or in relation to an investigation into drug trafficking; or

(ii) that —

(aa) a person specified in the certificate has committed, or there are reason able grounds for suspecting that a person so specified has committed, a drug offence; and

(bb) there are reasonable grounds for suspecting that there is information kept by the Registrar-General which is likely to be of substantial value (whether by itself or together with other information) to or in relation to an investigation into whether the person so specified has benefited from drug trafficking;

(b) where applications may be made under the subsection otherwise than by the Attorney-General or a member of the Bermuda Police Force, the reference to the rank of superintendent is a reference to the rank of principal Customs officer.

(6) Notwithstanding anything to the contrary in the Bermuda Monetary Authority Act 1969 [title 16 item 11] or any other provision of law, subsections (1) to (5) have effect mutatis mutandis in relation to the General Manager of the Bermuda Monetary Authority and that Act as they have effect in relation to the Registrar-General and the Registrar-General (Recording of Documents) Act 1955 [title 28 item 2].

PART VII

SUPPLEMENTAL

Winding up of company holding realisable property

35 (1) Where realisable property is held by a company and an or der for the winding up of the company has been made or a resolution has been passed by the company for its voluntary winding up, the func tions of the liquidator shall not be exercisable in relation to —

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

(b) any property realised by virtue of section 18(7) or section 22(5) or (6) for the time being in the hands of a receiver appointed under section 18 or 22;

but there shall be payable out of such property any expenses (including the remuneration of the liquidator) properly incurred in the winding up in respect of the property.

(2) Where, in the case of a company, such an order has been made or such a resolution has been passed, the powers conferred on the court by sections 18 to 23 or on a receiver appointed under section 18 or 22 shall not be exercised in relation to any realisable property held by the company in relation to which the functions of the liquidator are exer cisable—

(a) so as to prohibit him from exercising those functions for the purpose of distributing any property held by the company to th

Bermuda Consolidated Legislation

Drug Trafficking Suppression Act 1988