The Criminal Justice (International Co-operation) (Enforcement of Overseas Forfeiture Orders) Order, 2002

	Home \| Databases \| WorldLII \| Search \| Feedback Bahamas Statutory Instruments

OFFICE OF THE ATTORNEY GENERAL AND

MINISTRY OF JUSTICE

S.I. No. 61 of 2002

CRIMINAL JUSTICE

(INTERNATIONAL CO-OPERATION) ACT, 2000

(No. 42 of 2000)

CRIMINAL JUSTICE (INTERNATIONAL

CO-OPERATION) (ENFORCEMENT OF

OVERSEAS FORFEITURE ORDERS) ORDER, 2002

The Attorney General in exercise of the powers conferred by section 9 of the Criminal Justice (International Co-operation) Act, 2000 makes the following order?

This Order may be cited as the Criminal Justice (International Co-operation) (Enforcement of Overseas Forfeiture Orders) Order, 2002.

Citation.

2.(1)

In this Order -

Interpretation.

"appropriate authority of a designated country" means -

(a)

the authority specified opposite that country in the Second Schedule; or

Second Schedule.

(b)

where no authority is so specified, the authority approved for the purposes of this Order under paragraph 13;

"a court of a designated country" includes a court of any state of a designated country;

"designated country" means a country designated under paragraph 4;

"the Act" means the Criminal Justice (International Co-operation) Act, 2000;

No. 42 of 2000.

"police officer" includes a customs officer employed in the Customs Department;

"property" includes money and all other property real or personal, heritable or moveable, including things in action and other intangible or incorporeal property.

(2)

This Order applies to property whether it is situated in The Bahamas or elsewhere.

(3)

Property is held by any person if he holds any interest in it.

(4)

Proceedings are instituted in a designated country when -

(a)

under the law of the designated country concerned one of the steps specified in relation to that country in the right - hand column of the First Schedule has been taken there in respect of an alleged drug trafficking offence or an offence under the Proceeds of Crime Act, 2000; or

First Schedule.

No. 44 of 2000.

(b)

an application has been made to a court in a designated country for an external forfeiture order;

and where the application of this subparagraph 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.

(5)

Proceedings are concluded -

(a)

when (disregarding any power of a court to grant leave to appeal out of time) there is no further possibility of a forfeiture order being made in the proceedings;

(b)

on the satisfaction of a forfeiture order made in the proceedings (whether by the recovery of all property liable to be recovered, or otherwise).

(6)

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.

3.(1)

An order made by a court in a designated country for the forfeiture and destruction or forfeiture and other disposal, of anything in respect of which a drug trafficking offence or an offence relating to the proceeds of drug trafficking has been committed or any offence if committed in the designated country would constitute an offence under the Proceeds of Crime Act, 2000 or anything which was used in connection with the commission of such an offence is referred to in this Order as an "external forfeiture order".

External forfeiture orders.

(2)

In subparagraph (1), the reference to an order includes any order, decree, direction or judgment, or any part thereof, however described.

(3)

A person against whom an external forfeiture order has been made, or a person against whom proceedings which may result in an external forfeiture order being made have been, or are to be, instituted in a court in a designated country, is referred to as "the defendant".

Each of the countries and territories specified in the Second Schedule is hereby designated for the purposes of section 9 of the Act.

Designation of countries and territories.

Second Schedule.

5.(1)

The Supreme Court may in accordance with this section by an order (referred to in this Order as a "restraint order") prohibit any person, subject to such conditions and exceptions as may be specified in the Order, from dealing with any property liable to forfeiture, that is to say, any property in respect of which an external forfeiture order has been made or in respect of which such an order could be made in the proceedings referred to in subparagraph (2) and (3).

Restraint Orders.

(2)

A restraint order may be made where -

(a)

proceedings have been instituted against the defendant in a designated country;

(b)

the proceedings have not been concluded; and

(c)

either an external forfeiture order has been made in the proceedings or it appears to the Supreme Court that there are reasonable grounds for believing that such an order may be made in them.

(3)

A restraint order may also be made where -

(a)

it appears to the Supreme Court that proceedings are to be instituted against the defendant in a designated country; and

(b)

it appears to the Court that there are reasonable grounds for believing that an external forfeiture order may be made in them.

(4)

Where the Court has made an order under subparagraph (1) by virtue of subparagraph (3), the Court shall discharge the order if the proposed proceedings are instituted within such time as the Court considers reasonable.

(5)

A restraint order -

(a)

may be made only on an application by or on behalf of the government of a designated country or, in a case where an external forfeiture order has been registered under paragraph 10, by the Attorney General;

(b)

may be made on an ex parte application to a Judge in Chambers; and

(c)

notwithstanding anything in rules of court, may provide for service on, or the provision of notice to, persons affected by the order in such manner as the Supreme Court may direct.

(6)

A restraint order -

(a)

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

(b)

shall be discharged when the proceedings in relation to which the order was made are concluded.

(7)

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

(8)

Where the Supreme Court has made a restraint order, the Court may at any time appoint a receiver -

(a)

to take possession of any property specified in the restraint order; and

(b)

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 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.

(9)

For the purpose of this section, dealing with property held by any person includes (without prejudice to the generality of the expression) removing the property from The Bahamas.

(10)

Where a restraint order has been made, a police officer may for the purpose of preventing any property specified in the restraint order being removed from The Bahamas, seize the property.

(11)

Property seized under subparagraph (10) shall be dealt with in accordance with the directions of the Court which made the order.

An application under paragraph 5(5) shall be supported by an affidavit which shall-

Application for restraint orders.

(a)

state, where applicable, the grounds for believing that an external forfeiture order may be made in the proceedings instituted or to be instituted in the designated country concerned;

(b)

to the best of the deponent's ability, give particulars of the property in respect of which the order is sought and specify the person or persons holding such property;

(c)

in a case to which paragraph 5(3) applies, indicate when it is intended that proceedings should be instituted in the designated country concerned;

and the affidavit may, unless the Court otherwise directs, contain statements of information or belief with the sources and grounds thereof.

7.(1)

Where an external forfeiture order has been registered in a Supreme Court under paragraph 10, the Supreme Court may, on the application of the Attorney-General, order the forfeiture of the property specified in the external forfeiture order.

Disposal of forfeited property.

(2)

The proceeds of any property forfeited under subparagraph (1) shall be paid into the Confiscated Assets Fund.

(3)

The court shall not in respect of any property exercise the powers conferred by subparagraphs (1) and (2) unless a reasonable opportunity has been given for persons holding any interest in the property to make representations to the court.

8.(1)

This paragraph applies to the power conferred on the Supreme Court by paragraph 5 or on a receiver appointed under paragraph 5.

Exercise of powers by Supreme Court or receiver.

(2)

The powers shall be exercised with a view to recovering property which is liable to be recovered under an external forfeiture order registered in the Supreme Court under paragraph 10 or, as the case may be, with a view to recovering property which may become liable to be recovered under any external forfeiture order which may be made in the defendant's case.

9.(1)

Where a receiver appointed under paragraph 5 takes action -

Receivers supplementary provisions.

(a)

in relation to property which is not liable to recovery under an external forfeiture order, being action which he would be entitled to take if it were such 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 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 be paid by the person on whose application the receiver was appointed.

10.(1)

On an application made by or on behalf of the government of a designated country, a magistrate's court may register an external forfeiture order made there if -

Registration of external forfeiture orders.

(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 The Bahamas 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

(b)

an application for a new trial or a stay of execution.

(3)

The Supreme Court shall cancel the registration of an external forfeiture order if it appears to the court that the order has been satisfied by the forfeiture of the property liable to be recovered under the external forfeiture order or by any other means.

11.(1)

For the purposes of this Order -

Proof of orders and judgement of court in a designated country.

(a)

any order made or judgment given by a court in a designated country purporting to bear the seal of that court, or to be signed by any person in his capacity as a judge, magistrate or officer of the court, shall be deemed without further proof to have been duly sealed or, as the case may be, to have been signed by that person; and

(b)

a document, duly authenticated, which purports to be a copy of any order made or judgment given by a court in a designated country shall be deemed without further proof to be a true copy.

(2)

A document purporting to be a copy of any order made or judgment given by a court in a designated country is duly authenticated for the purposes of sub-paragraph (1)(b) if it purports to be certified by any person in his capacity as a judge, magistrate or officer of the court in question or by or on behalf of the appropriate authority of the designated country.

12.(1)

For the purposes of this Order, a certificate purporting to be issued by or on behalf of the appropriate authority of a designated country stating -

Evidence in relation to proceedings and orders in in a designated country.

(a)

that proceedings have been instituted and have not been concluded, or that proceedings are to be instituted, there;

(b)

that an external forfeiture order is in force and is not subject to appeal;

(c)

that property recoverable in the designated country under an external forfeiture order remains un-recovered there;

(d)

that any person has been notified of any proceedings in accordance with the law of the designated country; or

(e)

that an order (however described) made by a court of the designated country for the forfeiture and destruction or the forfeiture and other disposal of anything in respect of which a drug trafficking offence or an offence under the Proceeds of Crime Act, 2000, has been committed or which was used in connection with the commission of such an offence, shall, in any proceedings in the Supreme Court or, as the case may be, a magistrate's court, be admissible as evidence of the facts so stated.

of 2000.

(2)

In any such proceedings a statement contained in a document, duly authenticated, which purports to have been received in evidence or to be a copy of a document so received, or to set out or summarise evidence given in proceedings in a court in a designated country, shall be admissible as evidence of any fact stated therein.

(3)

A document is duly authenticated for the purposes of sub-paragraph (2) if it purports to be certified by any person in his capacity as judge, magistrate or officer of the court in the designated country, or by or on behalf of the appropriate authority of the designated country, to have been received in evidence or to be a copy of a document so received, or, as the case may be, to be the original document containing or summarizing the evidence or a true copy of that document.

(4)

Nothing in this section shall prejudice the admission of any evidence, whether contained in any document or otherwise, which is admissible apart from this paragraph.

13.

Where in relation to any designated country no authority is specified in the Second Schedule, a certificate made by the Governor General to the effect that the authority specified therein is the appropriate authority for the purposes of this Order shall be sufficient evidence of that fact.

Certificate of appropriate authority.

Second Schedule.

14.

A request for assistance sent to the Attorney-General by the appropriate authority of a designated country shall, unless the contrary is shown, be deemed to constitute the authority of the government of that country for the Attorney-General to act on its behalf in any proceedings in the Supreme Court under paragraph 10 or any other provision of this Order.

Representation of government of a designated country.

(Paragraph 2(4))

FIRST SCHEDULE

INSTITUTION OF PROCEEDINGS

Designated Country	Point at which Proceedings are Instituted
Anguilla	(a)	when a summons or warrant is issued in respect of an offence ;
	(b)	when a person is charged with an offence after being taken into custody without a warrant ;
	(c)	when a bill of indictment is preferred.
Argentina	when a judge has ordered that a person be detained for the purpose of testifying in connection with the commission of an offence.
Australia	(a)	when an information has been laid before a justice of the peace ;
	(b)	a person is charged with an offence after having been taken into custody without a warrant ;
	(c)	when a bill of indictment is preferred.
Barbados	(a)	when an information has been laid before a magistrate ;
	(b)	when a person is charged with an offence ;
	(c)	when a bill of indictment is preferred.
Bermuda	when an information has been laid charging a person with an offence
British Virgin Islands	(a)	when a summons or warrant is issued in respect of an offence ;
	(b)	when a person is charged with an offence after being taken into custody without a warrant ;
	(c)	when an indictment is preferred.
The Cayman Islands	(a)	when a charge has been signed under subsection (3) or (4) of section 13 of the Criminal Procedure Code in respect of the offences ;
	(b)	when a person is charged with the offence after being arrested without a warrant under subsection (5) of that section.
Ecuador	when a writ is issued by a judge initiating criminal proceedings.
Germany	when a person is notified that he is accused of an offence and will be brought before a court.
Gibraltar	when a person is charged with an offence, whether by the laying of an information or otherwise.
Grenada	(a)	when an information has been laid before a justice of the peace ;
	(b)	when a person is charged with an offence ;
	(c)	when a bill of indictment is preferred.
Guernsey	when a person is charged with an offence.
Guyana	when a charge has been laid against a person for an offence.
Special Administrative	(a)	when a magistrate issues a warrant or summons ;
Region of Hong Kong	(b)	when a person is charged with an offence ;
	(c)	when an indictment is preferred.
India	(a)	when information relating to the commission of any crime is received by any law enforcement agency empowered to investigate such crime under the law for the time being in force and laid before a court of law ;
	(b)	when any allegation is made orally or in writing to a court of law that a person has committed an offence ;
	(c)	when a person is charged with an offence ;
	(d)	when any investigation or inquiry into the commission of any offence is directed by a court of law.
Isle of Man	(a)	where a justice of the peace issues a summons under section 4 of the Summary Jurisdiction Act 1989, when the complaint in relation to the offence is made to him ;
	(b)	where a justice of the peace issues a warrant for the arrest of any person under that section, when the complaint in relation to the offence is made to him ;
	(c)	where a person is charged with the offence after being taken into custody without a warrant, when he is taken into custody ;
	(d)	where an information is preferred by the Attorney General in a case where there have been no committal proceedings, when the information is lodged in the General Registry in accordance with section 4(1) of the Criminal Code Amendment Act 1917.
Italy	(a)	when a person is notified, in accordance with Article 369 of the Italian Code of Criminal Procedure, that a prosecution against him is in progress ;
	(b)	when a proposal for the application of a preventative measure ("misura di prevenzione") is laid before a court.
Jersey	(a)	when the Bailiff issues a warrant in respect of an offence for the arrest of a person which is out of the Island ;
	(b)	when a person is arrested and charged with an offence ;
	(c)	when a summons in respect of an offence is served on a person at the instance of the Attorney General ;
	(d)	when a summons in respect of the offence is served on a person in accordance with the provisions of Article 8 of the Police Court (Miscellaneous Provisions) (Jersey) Law, 1949.
Malaysia	when a person is charged with an offence.
Montserrat	(a)	when a judge issues a summons or warrant in respect of an offence ;
	(b)	when a person is charged with an offence after being taken into custody without a warrant.
Netherlands	(a)	when a pre-trial financial investigation has been initiated ;
	(b)	when the provisional measure has been ordered by an investigating magistrate ;
	(c)	when a public prosecutor has requested a pre-trial criminal investigation by an investigating magistrate to be instituted ;
	(d)	when a public prosecutor has laid an indictment.
Panama	when a person has been charged with an offence.
Paraguay	when a judge has ordered the restraint of property and a preventive detention order has been made.
Romania	(a)	when the start of a penal pursuit is ordered ;
	(b)	when penal proceedings start in respect of an offender.
Saudi Arabia	when an information has been laid before a judicial authority.
South Africa	(a)	when a summons is issued in respect of an offence ;
	(b)	when a person is charged with an offence ;
	(c)	when a bill of indictment is preferred.
Spain	when by virtue of a judicial resolution it is decided to proceed against a person for an offence.
Sweden	when a public prosecutor has established that there are reasonable grounds to suspect that a person has committed an offence and accordingly is obliged under the Code of Judicial Procedure to notify the person of the suspicion.
Switzerland	when proceedings for an offence are brought before an examining magistrate.
Thailand	when a court or the Asset Examination Committee issues a restraint order.
Turks & Caicos Islands	(a)	when a summons or warrant is issued in respect of an offence ;
	(b)	when a person is charged with an offence after being taken into custody without a warrant.
Ukraine	when a criminal case is brought.
United Kingdom	when a summons or warrant is issued in respect of an offence, or a person is charged after being taken into custody without a warrant, or a bill of indictment is preferred.
United Mexican States	when criminal proceedings are instituted by a judicial authority.
United States of America	when an indictment, information or complaint has been filed against a person in respect of an offence.
Uruguay	when criminal proceedings are instituted by a judicial authority.

(Paragraph 4)

SECOND SCHEDULE

Designated Country	Appropriate Authority
Afghanistan
Algeria
Anguilla	the Attorney General of Anguilla
Antigua and Barbuda
Argentina
Armenia
Australia
Austria
Azerbaijan
Bahrain
Bangledesh
Barbados
Belarus
Belgium
Belize
Benin
Bermuda	the Attorney General of Bermuda
Bhutan
Bolivia
Boznia and Herzegovina
Brazil
British Virgin Islands	the Attorney General of the British Virgin Islands
Brunei Darussalam
Bulgaria
Burkina Faso
Burundi
Cameroon
Canada
Cape Verde
The Cayman Islands	the Attorney General of the Cayman Islands
Chad
Chile
Republic of China
Colombia
Costa Rica
Croatia
Cuba
Cyprus
The Czech Republic
Denmark
Dominica
Dominican Republic
Ecuador
Egypt
El Salvador
Ethiopia
Fiji
Finland
France
Gambia
Germany
Ghana
Gibraltar	the Attorney-General of Gibraltar
Greece
Grenada
Guatemala
Guinea-Bissau
Guernsey	Her Majesty's Attorney General for the Bailiwick of Guernsey
Guyana
Haiti
Honduras
Special Administrative Region of Hong Kong	the Attorney General of Hong Kong
Isle of Man	Her Majesty's Attorney General for the Isle of Man
Italy
Ivory Coast
Jamaica
Japan
Jordan
Kenya
Kyrgyzstan
Latvia
Lesotho
Luxembourg
Macedonia
Madagascar
Malawi
Malaysia
Mali
Malta
Mauritania
Moldova
Monaco
Montserrat	the Attorney General of Montserrat
Myanmar
Morocco
Nepal
Netherlands
Nicaragua
Niger
Nigeria
Norway
Oman
Pakistan
Panama
Paraguay
Peru
Poland
Portugal
Qatar
Romania
The Russian Federation
St. Christopher and Nevis
St. Lucia
St. Vincent and the Grenadines
Sao Tome and Principe
Saudi Arabia
Senegal
Seychelles
Sierra Leone
Slovakia
Slovenia
South Africa
Spain
Sri Lanka
Sudan
Suriname
Swaziland
Sweden
Switzerland
Syrian Arab Republic
Syria
Tajikistan
Thailand	the Attorney General or a person designated by him
Togo
Tonga
Trinidad & Tobago
Tunisia
Uganda
Ukraine
United Arab Emirates
United Kingdom of Great Britain And Northern Ireland
United Mexican States
United Republic of Tanzania
United States of America
Uruguay
Uzbekistan
Venezuela
Yemen
The Federal Republic of Yugoslavia, Serbia and Montenegro
Zambia
Zimbabwe

Made the 24th day of April, 2002.

Signed

CARL W. BETHEL

Attorney General & Minister of Justice

CommonLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.commonlii.org/bs/legis/num_reg/tcjcoofoo2002903

Bahamas Statutory Instruments

The Criminal Justice (International Co-operation) (Enforcement of Overseas Forfeiture Orders) Order, 2002