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Arrangement of Sections
Section
Part I
Preliminary
1. Short title
2. Principal objects
3. Interpretation
4. Definition of certain terms etc.
Part II
FORFEITURE ORDERS, CONFISCATION ORDERS
AND RELATED MATTERS
General
5. Application for forfeiture or confiscation order on
conviction
6. Notice of application
7. Amendment of application
8. Procedure on application
9. Application for forfeiture order on abscondence
Section
Forfeiture Orders
10. Forfeiture order on conviction
11. Effect of forfeiture order
12. Voidable transfers
13. Protection of third parties
14. Discharge of forfeiture order on appeal and quashing of
conviction
15. Payment instead of forfeiture order
16. Application of procedure for enforcing fines
17. Forfeiture order on abscondence
Confiscation Orders
18. Confiscation order on conviction
19. Rules for determining benefit and assessing value
20. Statements relating to benefits from commission of scheduled
offences
21. Amount to be recovered under confiscation order
22. Variation of confiscation orders
23. Court may lift corporate veil
24. Enforcement of confiscation orders
Part m
PROVISIONS FOR FACILITATING POLICE
INVESTIGATIONS AND PRESERVING
PROPERTY LIABLE TO FORFEITURE
AN]) CONFISCATION ORDERS
Powers of Search and Seizure
25. Warrant to search land etc. for tainted
property
26. Restrictions on issue of search warrants
27. Matters to be included in search warrants
28. Police may seize other tainted property
29. Record of property seized
30. Return of property seized
Restraining Orders
31. Application for restraining order
32. Restraining orders
33. Undertaking by Crown
34. Notice of application for restraining order
35. Service of restraining order
36. Registration of restraining order
37. Contravention of restraining order
38. Duration of restraining order Review of Search Warrants and
Restraining Orders
39. Review of search warrants and restraining orders
40. Automatic expiry of restraining orders
41. Disposal of property seized or dealt with Production Orders,
and other information
gathering powers
42. Production and inspection orders
43. Scope of police powers under production order etc.
44. Evidential value of information
45. Variation of production order
46. Failure to comply with production order
47. Search warrant to facilitate investigations
Monitoring Orders
48. Monitoring orders
49. Monitoring orders not to be disclosed
Obligations of Financial Institutions 50. Retention of
records of financial institutions
51 Register of original documents
52. Communication of information to law enforcement authorities
53. Protection for financial institution
54. Interpretation
Order for Disclosure of Income
Tax Information
55. Application for disclosure of income tax information
56. Order for disclosure
57. Objection to disclosure of income tax information
58. Evidential value of copies
59. Further disclosure of information and documents held by
Government department etc.
60. Disclosure of information and documents held by Government
departments.
BAR
Part IV Offences 61. Money laundering
62. Possession of property derived from unlawful activity
63. Organised fraud 64. Rules for establishing mens rea
Part V
Miscellaneous
65. Amendment of Schedule 66. Standard of proof
67. Extemal forfeiture orders and confiscation orders 68.
Compensation 69. Regulations follows: 70. Costs 71. Non-liability of
Public Trustee 72. Operation of other laws not affected
73. Commencement Act, 1. 199(
SCHEDULE
I assent
D. A. WILLIAMS
Governor-General’s Deputy
16th June, 1990
1990—13
An Act to provide for the forfeiture or
confiscation of the proceeds of certain crimes and for
orders connected or related matters.
(By Proclamation.) Commencement
ENACTED by the Parliament of Barbados as
follows:
Part I
Preliminary
1. This Act may be cited as the Proceeds of Crime Short
title Act, 1990.
2. The principal objects of this Act are
(a) to deprive persons of the proceeds of, and the
benefits derived from, the commission of scheduled offences;
(b) to provide for the forfeiture of property used
in, or in connection with, or for the purpose of facilitating, the
commission of scheduled offences;
(c) to provide for the forfeiture of property
derived, obtained or realised directly or indirectly from the
commission of scheduled offences;
(d) to provide for the making of confiscation
orders in respect of property shown to have been derived, obtained or
realised by a person directly or indirectly, from the commission of
scheduled offences;
(e) to enable law enforcement authorities to trace
such proceeds, benefits and property.
3. In this Act
"benefit" falls to be construed in accordance with
section 4(1);
"Commissioner" means the Commissioner of Police;
"confiscation order" means an order made by the
Court pursuant to section 18(1);
"the Court" means the High Court
"forfeiture order" means an order made by the Court
pursuant to section 10(1);
"gift caught by this Act" falls to be construed in
accordance with section 4(12), and (14);
"interest" in relation to property, means
(a) a legal or equitable interest in the property; or
(b) a right, power or privilege in connection with
the property;
"police officer" means a member of the Police
Force;
"proceeds" means any property that is derived,
obtained or realised, directly or indirectly, by any person from the
commission of a scheduled offence;
"proceeds of crime" means
(a) proceeds of a scheduled offence; or
(b) any property or benefits derived, obtained or
realised, directly or indirectly, by any person from any act or
omission that, occurred outside Barbados, and would, if it had
occurred in Barbados, have constituted a scheduled offence;
"production order" means an order made by the Court
pursuant to section 42;
"property" includes money and all other property,
real or personal, including things in action and other intangible or
incorporeal property;
"Public Trustee" means the Public Trustee appointed
in accordance with the Public Trustee Act;
"realisable property" falls to be construed in
accordance with section 4(3) and (4);
"relevant application period", in relation to a
person’s conviction of a scheduled offence, means the period of 12
months after
(a) where the person is to be taken to have been
convicted of the offence by reason of section 4(2)(a), the day on
which the person was convicted of the offence;
(b) where the person is to be taken to have been
convicted of the offence by reason of section 4(2)(b), the day on
which the person was discharged without conviction;
(c) where the person is to be taken to have been
convicted of the offence by reason of section 4(2)(c), the day on
which the court took the offence into account in passing sentence for
the other offence referred to in that paragraph;
"restraining order" means an order made by the Court pursuant to
section 32(1);
"scheduled offence" means an offence specified
in the Schedule, and includes Schedule
(a) an offence of conspiring to commit any of those offences;
(b) an offence of aiding, abetting, counselling or procuring, or
being in any way knowingly concerned in, the commission of any of
those offences;
(c) an offence of attempting to commit any of those offences;
(d) an offence of inciting another to commit any of those offences;
"tainted property", in relation to a scheduled offence, means
(a) property used in, or in connection with, the commission of the
offence; or
(b) property derived, obtained or realised, directly or indirectly,
from the commission of the offence;
"unlawful activity" means an act or omission that constitutes an
offence against a law in force in Barbados or against a law of any
other country.
Definition 4. (1) In this Act
of certain
terms etc. (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 otherwise 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) For the purposes of this Act, a person is to be
taken to be convicted of a scheduled offence if
(a) he is convicted, whether summarily or on
indictment, of the offence;
(b) he is charged with the offence and is found
guilty but is discharged without conviction; or
(c) a court with his consent takes the scheduled
offence, of which he has not been found guilty, into account m
sentencing him for another offence.
(3) In this Act "realisable property" means,
subject to subsection (4)
(a) any property held by a person who has been
convicted of, or charged with, a scheduled offence; and
(b) any property held by a person to whom a person
so convicted or charged has directly or indirectly made a gift caught
by this Act.
(4) Property is not realisable property if
(a) there is in force in respect of that property,
a forfeiture order under this Act or under any other enactment;
(b) a forfeiture order is proposed to be made
against that property under this Act or any other enactment.
(5)
For the purposes of sections 20 and 21 the
amount that might be realised at the time a confiscation order is made
against a person is the total of the values at that time of all the
realisable property held by the person, less the total amounts payable
in pursuance of an obligation, where there is an obligation having
priority at that time, together with the total of the values at that
time of all gifts caught by this Act.
(6) For the purposes of subsection (5), an
obligation has priority at any time if it is an obligation of the
person to
(a) 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) pay an amount due in respect of any tax, rate, duty, cess or
other impost payable under any enactment for the time being in force;
(c) pay any other civil obligation as may be determined by the
Court;
(7)
Subject to subsections (8) and (9), for the purposes of
this Act, the value of property (other than cash) in relation to a
person holding the property
(a) where any other person holds an interest in the property, is
(i) the market value of the first mentioned person’s beneficial
interest in the property; less
(ii) the amount required to discharge any encumbrance on that
interest, and
(b) in any other case, its market value.
(8) References in this Act to the value at any time ("the material
time") of the transfer of any property are references to
(a) the value of the property to the recipient when he receives it
adjusted to take account of subsequent changes in the value of money;
or
(b) where subsection (9) applies, the value there mentioned,
(9) Where 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 (7)(b) is the
value to him at the material 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.
(10) Subject to subsection (14), a reference to
the value at any time ("the material time") of a gift is a
reference to
(a) the value of the gift to the recipient when he
received it adjusted to take account of subsequent changes in the
value of money; or
(b) the value there mentioned, where subsection
(11) applies;
whichever is the greater.
(11) Subject to subsection (14), where at the
material time a person holds
(a) 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 (10) is the
value to him at the material time of the property mentioned in
paragraph (a) of this subsection or the value of the property
mentioned in paragraph (b) so far as it so represents the property
which he received.
(12) A gift, including a gift made before the
commencement of this Act, is caught by this Act where
(a) it was made by the person convicted or charged
at any time after the commission of the offence or, if more than one,
the earliest of the offences to which the proceedings for the time
being relate; and the Court considers it appropriate in all the
circumstances to take the gift into account;
(b) it was made by the person convicted or charged
at any time and was a gift of property
(i) received by the person in connection with the
commission of a scheduled offence committed by him or another, or
(ii) which in whole or in part directly or
indirectly represented in the person’s hands property received by him
in that connection.
(13) The reference in subsection (12) to "an
offence to which the proceedings for the time being relate" includes
where the proceedings have resulted in the conviction of the person, a
reference to any offence which the Court takes into
consideration when determining sentence.
(14) For the purposes of this Act
(a) the circumstances in which a person is to be
treated as making a gift include those where the person 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 person; and
(b) in those circumstances, the preceding
provisions of this section shall apply as if the person had made a
gift of such share in the property as bears to the whole property the
same proposition as the difference between the values referred to in
paragraph (a) bears to the value of the consideration provided by the
person.

Part II
FORFEITURE ORDERS, CONFISCATION
ORDERS AND RELATED MATTERS
General
Appllcation 5. (1) Where a person is
convicted of a scheduled for forfei- offence committed after the
coming into force of this Act, ture order or confiscation the Director of Public Prosecutions
may apply to the Court order on for one or both of the following
orders conviction
(a) a forfeiture order against property that is
tainted property in respect of the scheduled offence;
(b) a confiscation order against the person in
respect of benefits derived by the person from the commission of the
scheduled offence.
(2) The Director of Public Prosecutions may not
make an application after the end of the relevant application period
in relation to the conviction.
(3) An application under this section may be made
in respect of one or more than one scheduled offence.
(4) Where an application under this section is
finally determined, no further application for a forfeiture order or a
confiscation order may be made in respect of the offence for which the
person was convicted unless the Court gives leave for the making of a
new application on being satisfied
(a) that the property, or benefit to which the new application
relates was identified after the previous application was determined;
or
(b) that necessary evidence became available after the previous
application
was determined; or
(c) that it is in the interests of justice that the new application
be made.
6. (1) Where the Director of Public Prosecutions Notice of
applies for a forfeiture order against property in respect of
application a person’s conviction of a scheduled offence
(a) the Director of Public Prosecutions must give no less than 14
days written notice of the application to the person and to any other
person who the Director of Public Prosecutions has reason to believe
may have an interest in the property;
(b) the person, and any other person who claims an interest in the
property, may appear and adduce evidence at the hearing of the
application; and
(c) the Court may, at any time before the final determination of
the application, direct the Director of Public Prosecutions
(i) to give notice of the application to any person who, in the
opinion of
the Court, appears to have an interest in the
property;
(ii) to publish in the Official Gazette and
in a newspaper published and circulating in Barbados notice of the
application in the manner and containing such particulars and within
the time that the Court considers appropriate.
(2) Where the Director of Public Prosecutions
applies for a confiscation order against a person
(a) the Director of Public Prosecutions must give
the person no less than 14 days written notice of the application; and
(b) the person may appear and adduce evidence at
the hearing of the application.
Amendment of 7. (1) The Court hearing an
application under application section 5(1) may, before
final determination of the
application, and on the application of the Director
of Public Prosecutions, amend the application to include any other
property or benefit, as the case may be, upon being satisfied that
(a) the property or benefit was not reasonably
capable of identification when the application was originally made; or
PROCEEDS OF CRIME ACT, 1990-13
(b) necessary evidence became available only after
the application was originally made.
(2) Where the Director of Public Prosecutions
applies to amend an application for a forfeiture order and the
amendment would have the effect of including additional property in
the application for the forfeiture order he must give no less than 14
days written notice of the application to amend to any person who he
has reason to believe may have an interest in the property to be
included in the application for the forfeiture order.
(3) Any person who claims an interest in the
property to be included in the application for the forfeiture order
may appear and adduce evidence at the hearing of the application to
amend.
(4) Where the Director of Public Prosecutions
applies to amend an application for a confiscation order against a
person and the effect of the amendment would be to include an
additional benefit in the application for the confiscation order he
must give the person no less than 14 days written notice of the
application to amend.
8. (1) Where an application is made to the Court
Procedure on for a forfeiture order or a confiscation order in
respect of a application
person’s conviction of a scheduled offence whether
in the ma court or in the Court, the Court may, in determining the
application, have regard to the transcript of any proceedings against
the person for the offence.
(2) Where an application is made for a forfeiture
order or a confiscation order to the Court before which the person was
convicted, and the Court has not, when the application is made, passed sentence on
the person for the offence, the Court may, if it is satisfied that it
is reasonable to do so in all the circumstances, defer passing
sentence until it has determined the application for the order.
Application
9. (1) Where a person absconds in
connection with for In rem a scheduled offence committed after
the coming into force
forfeiture
order~, of this Act, the Director of Public
Prosecutions may apply abscondence to the Court for a
forfeiture order under section 17 in respect of any tainted property.
(2) For the purposes of this section, a person
shall be deemed to have absconded in connection with a scheduled
offence if
(a) an information has been laid alleging the
commission of the offence by the person,
(b) a warrant for the arrest of the person has been
issued in relation to that information, and
(c) reasonable attempts to arrest the person
pursuant to the warrant have been unsuccessful during the period of
six months commencing on the day the warrant was issued, and the person shall be deemed to have so absconded
on the last day of that period of six months.
(3) Where the Director of Public Prosecutions
applies under this section for a forfeiture order against any
(b) that the property was derived, obtained or
realised as a result of the commission by the person of the scheduled
offence for which the person was convicted, where the evidence
establishes that property, and in particular money, was found in the
person’s possession or under his control in a building, vehicle,
receptacle or place during the course of investigations conducted by
the police before or after the arrest and charge of the person for the
scheduled offence for which the person was convicted;
(c) that the value of the increase represents
property which was derived, obtained or realised by the person
directly or indirectly from the commission of the scheduled offence
for which the person was convicted, where the evidence establishes
that the value, after the commission of the scheduled offence, of all
ascertainable property of a person convicted of the scheduled offence
exceeds the value of all ascertainable property of that person prior
to the commission of that offence, and the Court is satisfied that the
income of that person from sources unrelated to criminal activity of
that person cannot reasonably account for the increase in value.
(3) Where the Court orders that property, other
than money, be forfeited to the Crown, the Court shall
PROCEEDS OF CRIME ACT, 1990-13
specify in the order the amount that it considers to be the value
of the property at the time when the order is made.
(4) In considering whether a forfeiture order should be made
under subsection (1), the Court shall have regard to
(a) the rights and interests, if any, of third parties in the
property;
(b) the gravity of the offence concerned;
(c) any hardship that may reasonably be expected to be caused to
any person, by
the operation of the order, and
(d) the use that is ordinarily made of the property, or the use to
which the
property was intended to be put.
(5) Where the Court makes a forfeiture order the Court may give
such directions as are necessary or convenient for giving effect to
the order.
11. (1) Subject to subsection (2), where the Court Effect of
makes a forfeiture order against any property, the property
forfeiture vests absolutely in the Crown by virtue of the order.
(2) Where property directed by a forfeiture order to be forfeited
is registrable property
(a) the property vests in the Crown in equity but does not vests in
the Crown at law until the applicable registration requirements have
been complied with
(b) the Crown is entitled to be registered as owner
of the property;
(c) the Attorney-General has power on behalf of the
Crown to do, or authorised the doing of, anything nccessary or
convenient to obtain the registration of the Crown as owner, including
the execution of any instrument required to be executed by a person
transferring an interest in property of that kind.
(3) Where the Court makes a forfeiture order
against property
(a) the property shall not, except with the leave
of the Court and in accordance with any directions of the Court be
disposed of, or otherwise dealt with, by or on behalf of the Crown,
before the relevant appeal date; and
(b) if, after the relevant appeal date, the order
has not been discharged, the property may be disposed of and the
proceeds applied or otherwise dealt with in accordance with the
direction of the Attorney-General.
(4) Without limiting the generality of subsection
(3)(b) the directions that may be given pursuant to that subsection
include a direction that property is to be disposed of in accordance
with the provisions of any enactment specified in the direction.
(5) In this section
registrable property" means property the title to
which is passed by registration in accordance with the provisions of
the
Land Registration Act; Cap. 229
relevant appeal date" used in relation to a
forfeiture order made in consequence of a person’s conviction of a
scheduled offence, means
(a) the date on which the period allowed by the
rules of court for the lodging of an appeal against a person’s
conviction or for the lodging of an appeal against the making of a
forfeiture order expires without an appeal having been lodged,
whichever is the later; or
(b) where an appeal against a person’s conviction
or against the making of a forfeiture order is lodged, the date on
which the appeal lapses in accordance with the rules of court or is
finally determined, whichever is the later.
12. The Court may Voidable transfers
(a) before making a forfeiture order; and
(b) in the case of property in respect of which a
restraining order was made,
where the order was served in accordance with
section 33,
set aside any conveyance or transfer of the
property that occurred after the seizure of the property or the
service of the restraining order, unless the conveyance or transfer
was made for valuable consideration to a person acting in good faith
and without notice.
Protection 13. (1) Where an application is made
for a of third forfeiture order against property, a person who claims
an
parties interest in the property may apply to the Court, before the
forfeiture order is made, for an order under subsection (2).
(2) If a person applies to the Court for an order
under this section in respect of his interest in property and the
Court is satisfied on a balance of probabilities
(a) that he was not in any way involved in the
commission of the offence; and
(b) where he acquired the interest during or after
the commission of the offence,
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, property that was tainted property,
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 forfeiture
order has already been made directing the forfeiture of property, a
person who claims an interest in the property may before the end of
the period of 12 months commencing on the day on which the forfeiture
order is made, apply under this subsection to the Court for an order
under subsection (2).
(4) A person who
(a) had knowledge of the application for the
forfeiture 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), except with the leave of the Court.
(5) A person who makes an application under
subsection (1) or (3) must give no less than 14 days written notice of
the making of the application to the Director of Public Prosecutions,
who shall be a party to any proceedings in the application.
(6) An applicant or the Director of Public
Prosecutions may in accordance with the rules of court, appeal to the
Court of Appeal from an order made under subsection (2).
(7) The Public Trustee shall, on application
made by any person who has obtained an order under subsection (2), and
where the period allowed by the rules of court with respect to the
making of appeals has expired and any appeal from that order taken
under subsection (6) has been determined.
Application 16. (1) Where the Court orders a person to pay an
of Proce- amount under section 15 that amount shall be treated
as if
dure for enforcing it were a fine imposed upon him in respect of a
conviction fines of a scheduled offence and the Court shall
(a) notwithstanding anything contained in
Cap. i section 22 of the Interpretation Act, impose, in
default of the payment of that amount, a term of imprisonment
(i) of 18 months, where the amount does not exceed $10,000;
(ii) of 2 years, where the amount exceeds $10,000 but does not
exceed $20,000;
(iii) of 3 years, where the amount
exceeds $20,000 but does not
exceed $50,000;
(iv) of 5 years, where the amount
exceeds $50,000 but does not
exceed $100,000;
(v) of 7 years, where the amount exceeds $100,000 but does not
exceed $200,000;
(vi) of 10 years, where the amount
exceeds $200,000 but does not
exceed $1,000,000;
(vii) of 15 years, where the amount
exceeds $1,000,000;
(b) direct that the term of imprisonment imposed
pursuant to paragraph (a), in the case of conviction for an offence
against the Drug Abuse (Prevention and Control) Act, be served
consecutively to any other form of imprisonment imposed on the person,
or that the person is then serving;
(c) direct that the Prisons Act and any
Cap. 168 regulations made thereunder regarding
the remission of sentences of prisoners serving a
term of imprisonment shall not apply in relation to a term of
imprisonment imposed on a person pursuant to paragraph (a) in the case
of a conviction for an ofence against the Drug Abuse (Prevention
and Control) Act.
17. (1) Subject to section 9(3), where an
application Forfeiture is made to the Court under section 9(1)
for a forfeiture order on
abscondence
order against any tainted property in consequence
of a person’s abscondence in connection with a scheduled offence and
the Court is satisfied that
(a) any property is tainted property in respect of
the offence;
(b) proceedings in respect of a scheduled offence
committed in relation to that
property were commenced; and
(c) the accused charged with the offence referred
to in paragraph (b) has absconded the Court may order that the property or such of
the property as is specified by the Court in the order be forfeited to
the Crown.
(2) The provisions of sections 10(2), (3), (4) and
(5), 11, 12 and 13 shall apply with such modifications as are
necessary to give effect to this section.
Confiscation Orders
Confisca- 18. (1) Subject to this section,
where the Director of tion order Public Prosecutions applies to
the Court for a confiscation On conviction order against a
person in respect of that person’s conviction of a scheduled
offence the Court shall, if it is satisfied that
the person has benefited from that offence order
him to pay to the Crown an amount equal to the value of his benefits
from the offence or such lesser amount as the Court certifies in
accordance with section 21 to be the amount that might be realised at
the time the confiscation order is made.
(2) The Court shall assess the value of the
benefits derived by a person from the commission of an offence in
accordance with sections 19 to 22
(3) The Court shall not make a confiscation order
under this section
(a) until the period allowed by the rules of court
for the lodging of an appeal against conviction has expired without
such an appeal having been lodged; or
(b) where an appeal against convictions has been
lodged, until the appeal lapses in accordance with the rules of court
or is finally determined, whichever is the later date.
PROCEEDS OF CRIME ACT, 1990-13
19. (1) Where a person obtains property as the
Rules for result of, or in connection with the commission of, a
determining scheduled offence, his benefit is the value of the
property benefit and
so obtained.
Assessing value
(2) Where a person derives an advantage as a result
of or, in connection with the commission of a scheduled offence, his
advantage shall be deemed to be a sum of money equal to the value of
the advantage so derived.
(3) The Court, in determining whether a person has
benefited from the commission of a scheduled offence or from that
offence taken together with other scheduled offences and, if he has,
in assessing the value of the benefit, shall unless the contrary is
proved, deem
(a) all property appearing to the Court to be held
by the person on the day on which the application is made; and
(b) all property appearing to the Court to be held by the person at any time
(i) within the period between the day the scheduled
offence, or the earliest offence, was committed and the day on which
the application is made; or
(ii) within the period of 6 years immediately
before the day on which the application is made; whichever is longer to be property that came into the possession or
under the control of the person by reason of the commission of that
scheduled offence or those scheduled offences for which the person was
convicted;
(c) any expenditure by the person since the,
beginning of that period to be I expenditure met out of
payments received by him as a result of, or in connection with, the
commission of thai scheduled offence or those scheduled offences; and
(d) any property received or deemed to have been
received by the person at any time as a result of, or in connection
with, the commission by him of that scheduled offence, or those
scheduled offences as property received by him free of any interests
therein.
(4) Where a confiscation order has previously been
made against a person, in assessing the value of any benefit derived
by him from the commission of the scheduled offence, the Court shall
leave out of account any of his benefits that are shown to the Court
to have been taken into account in determining the amount to be
recovered under that order.
(5) If evidence is given at the hearing of the
application that the value of the person’s property at any time after
the commission of the scheduled offence exceeded the value of the
person’s property before the commission of the offence, 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 person satisfies the Court that the whole
or part of the excess was due to causes unrelated to the commission of
the scheduled offence, subsection (5) does not apply to the
excess or, as the case may be, that part.
20. (1) Where Statements
(a) a person has been convicted of a
scheduled offence and the Director of from corn-Public
Prosecutions tenders to the mission of Court a statement as to
any matters scheduled relevant offences
(i) to determining whether the person has benefited
from the offence or from any other scheduled offence of which he is
convicted in the same proceedings or which is taken into account in
determining his sentence, or
(ii) to an assessment of the value of the person’s
benefit from the offence or any other scheduled offence of which he is
so convicted in the same proceedings or which is so taken into
account, and
(b) the person accepts to any extent an allegation
in the statement,
the Court may, for the purposes of so determining
or making that assessment, treat his acceptance as conclusive of the
matters to which it relates.
(2) Where
(a) a statement is tendered under subsection (1)
(a), and
(b) the Court is satisfied that a copy of that
statement has been served on the person, the Court may require the person to indicate to
what extent he accepts each allegation in the statement and, so far as
he does not accept any such allegation, to indicate any matters he
proposes to rely on.
(3) Where the person fails in any respect to comply
with a requirement under subsection (2), he may be treated for the
purposes of this section as having accepted every allegation in the
statement, other than
(a) an allegation in respect of which he has
complied with the requirement; and
(b) an allegation that he has benefited from the
scheduled offence or that any property or advantage was obtained by
him as a result of, or in connection with the commission of the
offence.
(4) Where
(a) the person tenders to the Court 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 Director of Public Prosecutions accepts to
any extent any allegation in the statement, the Court may, for the purposes of that
determination, treat the acceptance of the Director of Public
Prosecutions as conclusive of the matters to which it relates.
(5) An allegation may be accepted or a matter
indicated for the purposes of this section either —
(a) orally before the Court; or
(b) in writing in accordance with rules of court.
(6) An acceptance by a person under this section
that he received any benefits from the commission of a scheduled
offence is admissible in any proceedings for any offence.
21. (1) Subject to subsection (2), the amount to be
Amount to recovered in the person’s case under a confiscation order be
recovshall be the amount which the Court assesses to be the ered under confiscavalue of the person’s benefit from the
scheduled offence or tion order
if more than one, all the offences in respect of
which the order may be made.
(2) Where the Court is satisfied as to any matter
relevant for determining the amount which might be realised at the
time the confiscation order is made (whether by an acceptance under
section 20 or otherwise) the Court may issue a certificate giving the
Court’s opinion as to the matters concerned, and shall do so if
satisfied that the amount that might be realised at the time the
confiscation order is made is less than the amount that the Court
assesses to be the value of the person’s benefit from the offence, or
if more than one, all the offences in respect of which the
confiscation order may be made.
22. (1) Where Variation of confisca
(a) the Court makes a confiscation order tion
orders against a person in relation to a scheduled offence;
(b) in calculating the amount of the confiscation
order, the Court took into account a forfeiture of the property or a
proposed forfeiture of the property or a proposed forfeiture order in
respect of property; and
(c) an appeal against the forfeiture or forfeiture
order is allowed or the proceedings for the proposed forfeiture order
terminate without the proposed forfeiture order being made
the Director of Public Prosecutions may apply to
the Court for a variation of the confiscation order to increase the
amount of the order by the value of the property not so forfeited and
the Court may, if it considers it appropriate to do so, vary the order
accordingly.
(2) Where
(a) the Court makes a confiscation order against a person in relation
to a scheduled offence;
(b) in calculating the amount of the confiscation
order, the Court took into account, in accordance with section 4(5)
and (6) an amount of tax paid by the person; and
(c) an amount is repaid or refunded to the person
in respect of that tax,
the Director of Public Prosecutions may apply to
the Court for a variation of the confiscation order to increase the
order by the amount repaid or refunded and the Court may, if it
considers it appropriate to do so, vary the order accordingly.
23. (1) In assessing the value of benefits derived
by a person from the commission of a scheduled offence, the Court may
treat as property of the person any property that, in the opinion of
the Court, is subject to the effective control of the person whether
or not he has
(c) an appeal against the forfeiture or forfeiture
order is allowed or the proceedings for the proposed forfeiture order
terminate without the proposed forfeiture order being made
the Director of Public Prosecutions may apply to
the Court for a variation of the confiscation order to increase the
amount of the order by the value of the property not so forfeited and
the Court may, if it considers it appropriate to do so, vary the order
accordingly.
(2) Where
(a) the Court makes a confiscation order against a
person in relation to a scheduled offence;
(b) in calculating the amount of the confiscation
order, the Court took into account, in accordance with section 4(5)
and (6) an amount of tax paid by the person; and
(c) an amount is repaid or refunded to the person
in respect of that tax,
the Director of Public Prosecutions may apply to
the Court for a variation of the confiscation order to increase the
order by the amount repaid or refunded and the Court may, if it
considers it appropriate to do so, vary the order accordingly.
Court may 23. (1) In assessing the value of
benefits derived by lift corpo- a person from the commission of
a scheduled offence, the rate veil Court may treat as property
of the person any property that, in the opinion of the Court, is subject to the
effective control of the person whether or not he has
(a) any legal or equitable interest in the
property; or
(b) any right, power or privilege in connection
with the property.
(2) Without prejudice to the generality of
subsection (1) the Court may have regard to
(a) shareholdings in, debentures over or
directorships in any company that has an interest, whether direct or
indirect, in the property, and for this purpose the Court may order
the investigation and inspection of the books of a named company;
(b) any trust that has any relationship to the
property;
(c) any relationship whatsoever between persons
having an interest in the property or in companies of the kind
referred to in paragraph (a) or trust of the kind referred to in
paragraph (b), and any other persons.
(3) Where the Court, for the purposes of making a
confiscation order against a person, treats particular property as the
person’s property pursuant to subsection (1), the Court may, on
application by the Director of Public Prosecutions, make an order
declaring that the property is available to satisfy the order.
(4) Where the Court declares that property is
available to satisfy a confiscation order
(a) the order may be enforced against the property
as if the property were property of the person against whom the
orderis made; and
36
(b) a restraining order may be made in respect of
the property as if the property were property of the person against
whom the order is made.
(5) Where the Director of Public Prosecutions makes
an application for an order under subsection (3) that property is
available to satisfy a confiscation order against a person
(a) the Director of Public Prosecutions shall give
written notice of the application to the person and to any person who
the Director of Public Prosecutions has reason to believe may have an
interest on the property; and
(b) the person and any person who claims an
interest in the property may appear and adduce evidence at the hearing.
Enforce- 24. Where the Court orders a person to
pay an ment of amount under a confiscation order the provisions
of section confisca- 16 shall apply with such modifications as
the Court may tion orders determine for the purpose of
empowering the Court to
impose a term of imprisonment on a person in
default of compliance by him of a confiscation order.

PROCEEDS OF CRIME ACT, 1990-13 37
Part m
PROVISIONS FOR FACILITATING POLICE
INVESTIGATIONS AND PRESERVING
PROPERTY LIABLE TO FORFEITURE
AND CONFISCATION ORDERS
Powers of Search and Seizure
25. (1) Where a police officer has reasonable Warrant to
grounds for suspecting that there is, or there may be within search
land etc. for
the next following 72 hours, tainted property upon any land or upon
or in any premises the police officer may lay property before a
magistrate an information on oath setting out those grounds and apply
for the issue of a warrant to search the land or premises for
tainted property.
(2) Where an application is made under subsection (I) for a search
warrant, the magistrate may, subject to section 26, issue a warrant
authorising a police officer (whether named in the warrant or not)
with such assistance and by such force as is necessary and reasonable
(a) to enter upon the land or upon or into the premises;
(b) to search the land or premises for tainted property; and
(c) to seize property found in the course of the search that the
police officer believes on reasonable grounds, to be tainted property.
26. A magistrate shall not issue a warrant under Restrictions
section 25 unless on issue of search warrants warrants
(a) the informant or some other person has given to
the magistrate, either on oath or by affidavit, any further
information that the magistrate may require concerning the grounds on
which the issue of the warrant is sought;
(b) the magistrate is satisfied that there are
reasonable grounds for issuing the warrant.
Matters to 27. A warrant issued under section
25 shall be included include
in search
warrant
(a) a statement of the purpose for which the
warrant is issued, and a reference to the nature of the scheduled offence;
(b) a description of the kind of property to be
seized;
(c) a time, not being later than twenty-eight days,
upon which the warrant ceases to have effect; and
(d) a statement as to whether entry is authorised
to be made at any time of the day or night, or during specified hours
of the day or night.
Police may 28. Where in the course of a search
under a seize other warrant issued pursuant to section 25 for
tainted property
tainted
in relation to a scheduled offence, a police
officer finds
(a) property that he believes, on reasonable
grounds, to be
(i) tainted property in relation to the offence,
although not of a kind specified in the warrant, or
(ii) tainted property in relation to another
scheduled offence, or
(b) anything that he believes, on reasonable
grounds will afford evidence as to the commission of a criminal offence, and the police officer believes, on reasonable
grounds that it is necessary to seize that property or thing in order
to prevent its concealment, loss or destruction or its use in
committing, continuing or repeating the offence or any other offence,
the warrant shall be deemed to authorise the police officer to seize
that property or thing.
29. (1) A police officer who executes a warrant
Record of
issued under this Part shall property seized
(a) detain the property seized, taking reasonable
care to ensure that the property is preserved so that it may be dealt
with in accordance with the law;
(b) as soon as practicable after the execution of
the warrant, but within a period of 48 hours thereafter, prepare a
written report, identifying the property seized and the location where
the property is being detained and forward a copy of the report to the
clerk of the court in the magisterial district where the property is
being detained.
(2) A magistrate shall, on application, provide a copy of the
report
(a) to the person from whom the property was seized; and
(b) to any other person who appears to the magistrate to have an
interest in the property.
(3) A request under subsection (2) by a other than the person from
whom the property was shall be in writing and supported by affidavit
sworn to the person making the request.
Return of 30. (1) Where property has been seized property
section 28, otherwise than because it may afford seized of
the commission of a scheduled offence, any person who
claims an interest in the property may apply to the Co for an order
that the property be returned to him.
(2) Where a person makes an application under subsection (1) and
the Court is satisfied that
(a) the person is entitled to possession the property;
(b) the property is not tainted property relation to the scheduled
offence; and
(c) the person in respect of conviction, charging or proposed
charging the seizure of the property was made has no interest in
property, I the Court shall order the Commissioner to return the property to
the person, and the Commissioner shall arrange for the property to be
returned.
(3) Where
(a) at the time when the property was seized, an information had
not been laid
in respect of a scheduled offence,
(b) property has been seized under section 28, otherwise than
because it may afford evidence as to the commission of an offence,
(c) at the end of the period of 48 hours after the time when the
property was seized, an information has not been laid in respect of a
scheduled offence,
the Commissioner shall, subject to subsections (5) and (6),
arrange for the property to be returned to the person from whose
possession it was seized as soon as practicable after the end of that
period.
(4) Where
(a) property has been seized under section
28, otherwise than because it may
afford evidence as to the commission of a scheduled offence,
(b) either of the following conditions is satisfied, that is to
say,
(i) before the property was seized, a person had been convicted of
a scheduled offence or an information had been laid in respect of a scheduled
offence, or
(ii) before the property was seized, an information
had not been laid in respect of a scheduled offence, but an
information was laid in respect of a scheduled offence within 48 hours
after the time when the property was seized, and
(c) no forteiture order has been made against the
property within the period of 14 days after the property was seized,
the Commissioner shall, subject to subsections (5)
and (6), arrange for the property to be returned to the person from
whose possession it was seized as soon as practicable after the end of
that period.
(5) Where
(a) property has been seized under section
28, otherwise than because it may
afford evidence as to the commission of a scheduled offence,
(b) but for this subsection, the Commissioner
would be required to arrange for the property to be returned to a
person as soon as practicable after the end of a particular period,
and
(c) before the end of that period, restraining order is made in relation to the property, the Commissioner shall
(d) arrange for the property to be given to the
Public Trustee in accordance with the restraining order, if the
restraining order directs the Public Trustee to take custody and
control of the property;
(e) arrange for the property to be kept until it is
dealt with in accordance with any other provision of this Act, if the
Court that made the restraining order has made an order under
subsection (6) in relation to the property.
(6) Where
(a) property has been seized under section 28, otherwise than because it may afford evidence as to the commission of a scheduled offence,
(b) a restraining order is made in relation to the
property, and
(c) at the time when the restraining order is made,
the property is in the possession
of the Commissioner, the Commissioner may apply to the Court that made
the restraining order for an order that he retain possession of the
property, and the Court may, if satisfied that there are reasonable
grounds for believing that the property may afford evidence as to the
commission of a scheduled offence or any other offence, make an order
that the Commissioner retain the property for so long as the property
is so required as evidence as to the commission of that offence.
(7) Where the Commissioner applies to the Court for
an order under subsection (6), a witness shall not be required to
answer any question or to produce any document if the Court is
satisfied that the answering of the question or the production of the
document may prejudice the investigation of, or the prosecution of a
person for, an offence.
(8) Where
(a) property has been seized under section 28, otherwise than because it may afford evidence as to the commission of a scheduled offence,
(b) an application is made for a restraining order
or a forfeiture order in respect of the property,
(c) the application is refused, and
(d) at the time when the application is refused,
the property is in the possession of the Commissioner, the Commissioner shall arrange for the property to
be returned to the person from whose possession it was seized as soon
as practicable after the refusal.
(9) Where
(a) property has been seized under section 28, and
(b) while the property is in the possession of the
Commissioner a forfeiture order is made in respect of the property, the Commissioner shall deal with the property as
directed by the order.

Restraining Orders
31. (1) Where a person, (in this section and
section Applica
32 called "the defendant") tion for restraining
(a) has been convicted of a scheduled offence,
or
(b) has been charged with a scheduled offence
the Director of Public Prosecutions may apply to
the Court for a restraining order against any realisable property held
by the defendant or specified realisable property held by a person
other than the defendant.
(2) An application for a restraining order may be
made ex parte and shall be in writing and be accompanied by an
affidavit stating
(a) where the defendant has been convicted of a
scheduled offence, the scheduled offence for which the defendant was
convicted, the date of the conviction, the Court before which the
conviction was obtained and whether an appeal has been lodged against
the conviction;
(b) where the defendant has not been convicted of a
scheduled offence, the scheduled offence for which he is charged and
the grounds for believing that the defendant committed the offence;
(c) a description of the property in respect of
which the restraining order is sought;
(d) the name and address of the person who is
believed to be in possession of the property;
(e) the grounds for the belief that the property is
tainted property in relation to the offence;
(f) the grounds for the belief that the defendant
derived a benefit directly or indirectly from the commission of the
offence;
(g) where the application seeks a restraining order
against property of a person, other than the defendant, the grounds
for the belief that the property is tainted property in relation to
the offence and is subject to the effective control of the defendant;
(ii) the grounds for the belief that a
forfeiture order or a confiscation order may be or is likely to be
made under this Act in respect of the property.
32. (1) Subject to this section, where the Director
Of Public Prosecutions applies to the Court for a restraining order
aqainst property and the Court is satisfied that
order against property and the Court is satisfied
that
(a) the defendant has been convicted of a scheduled
offence, or has been charged with a scheduled offence;
(b) there are reasonable grounds for believing that
the defendant committed the offence, where the defendant has not been
convicted of a scheduled offence;
(c) there is reasonable cause to believe that the
property is tainted property in relation to an offence or that the
defendant derived a benefit directly or indirectly from the commission
of the offence;
(d) there are reasonable grounds for believing that
the property is tainted property in relation to an offence and that
the property is subject to the effective control of the defendant,
where the application seeks a restraining order against property of a
person other than the defendant; and
(e) there are reasonable grounds for believing that
a forfeiture order or a confiscation order is likely to be made under
this Act in respect of the property, the Court may make an order
(f) prohibiting the defendant or any person from
disposing of, or otherwise dealing with, the property or such part
thereof or interest therein as is specified in the order, except in
such manner as may be specified in the order, and
(g) at the request of the Director of Public
Prosecutions, where the Court is satisfied that the circumstances so
require
(i) directing the Public Trustee or such other
person as the Court may appoint to take custody of the property or
such part thereof as is specified in the order and to manage or
otherwise deal with all or any part of the property in accordance with
the directions of the Court; and
(ii) requiring any person having possession of the
property to give possession thereof to the Public Trustee or to the
person appointed under sub-paragraph (i) to take custody and control
of the property.
(2) An order under subsection (1) may be made
subject to such conditions as the Court thinks fit and, without
limiting the generality of this, may make provision for meeting, out
of the property or a specified part of the property, all or any of the
following
(a) the person’s reasonable living expenses
(including the reasonable living expenses of the person’s dependants
(if any) and reasonable business expenses;
PROCEEDS OF CRIME ACT, 1990-13 49
tic (b) the person’s reasonable expenses in
defending the criminal charge and any 50 proceedings under
this Act.
(3) In determining whether there are reasonable
or grounds for believing that property is subject to the urt
effective control of the defendant the Court may have the i~gard to
the matters referred to in section 23(2). S 15 tO (4)
Where the Public Trustee or other person appointed under subsection
(l)(g)(i) is given a direction in in relation to any property, the
Public Trustee or that other s of person may apply by summons to the
Court for directions on any question respecting the management or
preservation of the property under this control.
give (5) An application under subsection (4)
shall be ~blic served upon all persons interested in the application
or intend such of them as the Court thinks expedient and all such take
persons shall be at liberty to appear at the hearing and be the heard.
(6) The Public Trustee or other person appointed
under subsection (1)(g)(i) in acting on directions
made given by the Court shall be deemed to have
discharged his and, duty in the subject matter of the application.
(I)f the -33. (1) Before making an order under
section 32, Undcrtak the Court may require the Crown to give
such undertakings ~ by
as the Court considers appropriate with respect to
the Crown
payment of damages or costs, or both, in relation
to the enses making and execution of the order.
[wing (2) For the purposes of this section, the
Director
its (if of Public Prosecutions may, after
consultation with the nses;
Attorney-General, on behalf of the Crown, give to the Court such
undertakings with respect to the payment of damages or costs, or both,
as are required by the Court.
Notice of 34. Before making a restraining order, the Court
application may require notice to be given to, and may hear, any
for restraining order person who, in the opinion of the Court,
appears to have an
interest in the property, unless the Court is of the opinion that
giving such notice before making the order would result in the
disappearance, dissipation or reduction in value of the property.
Service of 35. A copy of a restraining order shall be
served
restraining on a person affected by the order in such manner as the
order Court directs or as may be prescribed by rules of court.
Registra- 36. (1) A copy of a restraining order which affects
tion of restrain- lands, tenements or hereditaments in Barbados
shall be ing order registered with the Registrar of the Supreme
Court in Cap. 210 accordance with the Registration of
Judgments Act, and
with the Registrar of Titles.
(2) A restraining order is of no effect with respect to registered
land unless it is registered as a charge
Cap. 229 under the Land Registration Act.
(3) Where particulars of a restraining order are
recorded or registered, as the case may be, in accordance Cap.
210 with the Registration of Judgments Act or the Land
Cap. 229 Registration Act, a person who subsequently
deals with the property shall, for the purposes of section 37, be
deemed to have notice of the order at the time of the dealing.
Contra- 37. (1) A person who knowingly contravenes a
vention of restrain- restraining order by disposing of, or otherwise
dealing order
Duration of 38. A restraining order remains in force until
restraining order
(a) it is revoked or varied under section 39;
(b) it ceases to be in force under section 40; or
(c) a forfeiture order or a confiscation order, as the case may be,
is made in respect of property which is the subject of the order, or
(d) the property which is the subject of the order becomes
forfeited to the Crown
under any other enactment.
Review of Search Warrants and
Restraining Orders
Review of 39. (1) A person who has an interest in property that
search was seized under a warrant issued pursuant to section 25
or Wayants. in respect of which a restraining order was made
may, at
ing orders any time, apply to the Court
(a) for an order under subsection (4); or
(b) for permission to examine the property.
(2) An application under subsection (1) shall not be heard by the
Court unless the applicant has given to the Director of Public
Prosecutions at least three days clear notice in writing of the
application.
Duration of 38. A restraining order remains in force until
restraining order
(a) it is revoked or varied under section 39;
(b) it ceases to be in force under section 40; or
(c) a forfeiture order or a confiscation order, as the case may be,
is made in respect of property which is the subject of the order, or
(d) the property which is the subject of the order becomes
forfeited to the Crown under any other enactment.
Review of Search Warrants and Restraining Orders
Review of 39. (1) A person who has an interest in property that
search was seized under a warrant issued pursuant to section 25
or
in respect of which a restraining order was made may, at ing
orders any time, apply to the Court
(a) for an order under subsection (4); or
(b) for permission to examine the property.
(2) An application under subsection (1) shall not be heard by the
Court unless the applicant has given to the Director of Public
Prosecutions at least three days clear notice in writing of the
application.
(3) The Court may requi |