Drug Trafficking (Bailiwick of Guernsey) (Designated Countries and Territories) Ordinance, 2000

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The Drug Trafficking (Bailiwick of Guernsey) Law (Designated Countries and Territories) Ordinance, 2000

THE STATES, in exercise of the powers conferred upon them by section 35 of the Drug Trafficking (Bailiwick of Guernsey) Law, 2000[a] and on the representation of the States Advisory and Finance Committee, hereby order:-

Designation of and application of the Law to countries and territories

1. (1) Each of the countries and territories specified in Schedule 1 to this Ordinance is hereby designated for the purposes of sections 35 and 36 of the Law.

(2) In relation to a designated country, the relevant provisions of the Law shall apply, subject to the modifications specified in Schedule 2 to this Ordinance, to external confiscation orders and to proceedings which have been or are to be instituted in the designated country and may result in an external confiscation order being made there.

Proof of orders and judgments of court in a designated country

2. (1) For the purposes of sections 35 and 36 of the Law, and of the other relevant provisions of the Law, as applied under section 1(2) of this Ordinance -

(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 purpose of subsection 1(b) above 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.

Evidence in relation to proceedings and orders in a designated country

3. (1) For the purposes of sections 35 and 36 of the Law, and of the other relevant provisions of the Law as applied under section 1(2) of this Ordinance, a certificate purporting to be issued by or on behalf of the appropriate authority of a designated country, stating -

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

(b) in a case to which section 37(2) of the Law, as modified by Schedule 2 to the Ordinance applies, that the defendant has been notified as specified in that subsection;

(d) that all or a certain amount of the sum payable under an external confiscation order remains unpaid in the designated country, or that other property recoverable under an external confiscation order remains unrecovered there;

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

(f) that an order (however described) made or to be made by a court of the designated country has the purpose, or, as the case may be, will have the purpose, of recovering payments or other rewards received in connection with drug trafficking or their value;

shall, in any proceedings in the Royal Court, be admissible as evidence of the facts so stated.

(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 subsection (2) above if it purports to be certified by any person in his capacity as a judge, magistrate or officer of the court in a 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 summarising the evidence or a true copy of that document.

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

Certificate as to appropriate authority of a designated country

4. Where in relation to any designated country no authority is specified in Schedule 1 to this Ordinance, a certificate made by Her Majesty's Procureur to the effect that the authority specified therein is the appropriate authority for the purposes of section 35 and 36 of the Law, and of the other relevant provisions of the Law as applied by section 1(2) of this Ordinance shall be sufficient evidence of that fact.

Satisfaction of confiscation order in a designated country

5. (1) Where -

(a) a confiscation order has been made under section 2 of the Law; and

(b) a request has been sent by Her Majesty's Procureur to the appropriate authority of a designated country for assistance in enforcing that order; and

(c) in execution of that request property is recovered in that country, the amount payable under the confiscation order shall be treated as reduced by the value of the property so recovered.

(2) For the purposes of this section, and without prejudice to the admissibility of any evidence which may be admissible apart from this paragraph, a certificate purporting to be issued by or on behalf of the appropriate authority of a designated country stating that property has been recovered there in execution of a request by Her Majesty's Procureur, stating the value of the property so recovered and the date on which it was recovered shall, in any proceedings in a court in the Bailiwick, be admissible as evidence of the facts so stated.

Currency Conversion

6. (1) Where the value of property recovered as described in section 7(1) of this Ordinance is expressed in a currency other than that of the United Kingdom, the extent to which the amount payable under the confiscation order is to be reduced under that paragraph shall be calculated on the basis of the exchange rate prevailing on the date on which the property was recovered in the designated country concerned.

(2) Where an amount of money payable or remaining to be paid under an external confiscation order registered in the Royal Court under section 36 of the Law is expressed in a currency other than that of the United Kingdom, for the purpose of any action taken in relation to that order under the Law as applied under section 1(2) of this Ordinance the amount shall be converted into the currency of the United Kingdom on the basis of the exchange rate prevailing on the date of registration of the order.

(3) For the purposes of this section a written certificate purporting to be signed by any person acting in his capacity as an officer of any bank in the Bailiwick and stating the exchange rate prevailing on a specified date shall be admissible as evidence of the facts so stated.

Interpretation

7. In this Ordinance -

"appropriate authority" of a designated country means -

(a) the authority specified opposite that country in Schedule 1 to this Ordinance;

(b) where no authority is so specified, the authority appearing to the Royal Court to be the appropriate authority of that country for the purposes of sections 35 and 36 of the Law, and of the other relevant provisions of the Law as applied under section 1(2) of this Ordinance;

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

"designated country" means a country or territory designated under section 1(1) of this Ordinance;

"Her Majesty's Procureur" includes "Her Majesty's Comptroller".

"the Law" means the Drug Trafficking (Bailiwick of Guernsey) Law, 2000 and "the relevant provisions of the Law" are Part I, except sections 10 and 16, and Part IV of that Law.

Repeals

8. The Drug Trafficking Offences (Bailiwick of Guernsey) Law, 1988 (Specified Countries and Territories) Ordinance, 1991[b], the Drug Trafficking Offences (Bailiwick of Guernsey) Law, 1988 (Specified Countries and Territories) (Amendment) Ordinance, 1992, the Drug Trafficking (Bailiwick of Guernsey) Law, 1988 (Specified Countries and Territories) (Amendment) Ordinance, 1994 and the Drug Trafficking Offences (Bailiwick of Guernsey) (Specified Countries and Territories) (Amendment) Ordinance, 1998 are hereby repealed.

Title, Commencement and Extent

9. (1) This Ordinance may be cited as the Drug Trafficking (Bailiwick of Guernsey) (Designated Countries and Territories) Ordinance, 2000 and shall come into force on 1^st January, 2000.

(2) This Ordinance shall apply throughout the Bailiwick.

SCHEDULE 1 section 1(1)

______________________________________________________________________________

Designated Country Appropriate authority

______________________________________________________________________________

Afghanistan

Algeria

Anguilla The Attorney General of Anguilla

Antigua & Barbuda the Attorney General

Argentina The Ministry of Foreign Affairs

Armenia

Australia The Attorney General's Department

Azerbaijan

The Bahamas The Attorney General of the Bahamas

Bahrain The Ministry of the Interior

Bangladesh

Barbados The Attorney General

Belarus

Belgium

Belize

Bermuda The Attorney General of Bermuda

Bhutan

Bolivia Secretaria Nacional de Defensa Social del

Ministerio de Gobierno

Bosnia & Herzegovina

Brazil

British Virgin- The Attorney General of the British Virgin

Islands Islands

Brunei Darussalam

Bulgaria

Burkina Faso

Burundi

Cameroon

Canada The Minister of Justice or officials designated

by that Minister

Cape Verde

Cayman Islands The Attorney General of the Cayman Islands

Chad

Chile Ministerio del Interior

China

Colombia The Fiscalia General de la Nacion and the

Ministerio de Justicia del Derecho

Costa Rica

Cote d'Ivoire

Croatia

Cuba

Cyprus

Czech Republic

Denmark

Dominica

Dominican Republic

Ecuador Consejo Nacional de Control de Sustancias Estupefacientes y Psicotropicas (CONSEP)

Egypt

El Salvador

Ethiopia

Fiji

Finland

France

Gambia

Germany

Ghana

Gibraltar The Attorney General of Gibraltar

Greece

Grenada The Ministry of External Affairs

Guatemala

Guinea

Guinea-Bissau

Guyana The Permanent Secretary, Ministry of Home Affairs

Haiti

Honduras

Hong Kong The Attorney General of Hong Kong

India The Ministry of Home Affairs

Iran

Ireland

Isle of Man Her Majesty's Attorney General for the Isle

of Man

Italy The Ministry of Justice

Jamaica

Japan

Jersey Her Majesty's Attorney General for the

Bailiwick of Jersey

Jordan

Kenya

Kyrgyzstan

Latvia

Lesotho

Lithuania

Luxembourg

Macedonia, The Former Yugoslav Republic of

Madagascar

Malawi

Malaysia The Inspector General of Police, Malaysia

Mali

Malta

Mauritania

Moldova

Monaco

Montserrat The Attorney General of Montserrat

Morocco

Myanmar

Nepal

Netherlands Afdeling Internationale Rechtshulp

Nicaragua

Niger

Nigeria The Attorney General of the Federation of the

Republic of Nigeria

Norway

Oman

Pakistan

Panama The Ministry of Government and Justice

Paraguay National Anti-Drugs Secretariat of the

Presidency of the Republic (SENAD)

Peru

Poland

Portugal

Qatar

Romania The Ministry of the Interior and the Ministry of

Justice

The Russian Federation

Saint Kitts & Nevis

Saint Lucia

Saint Vincent & the Grenadines

Sao Tome & Principe

Saudia Arabia The Ministry of the Interior

Senegal

Seychelles

Sierra Leone

Slovakia

Slovenia

South Africa The Department of Foreign Affairs

Spain The Ministerio de Justicia, Madrid

Sri Lanka

Sudan

Suriname

Swaziland

Sweden The Ministry for Foreign Affairs

Switzerland Office federal de la police

Syrian Arab Republic

Tajikistan

Thailand The Attorney General or a person designated by

him

Togo

Trinidad & Tobago

Tunisia

Turkey

Turkmenistan

Turks & Caicos Islands

Uganda

Ukraine The Office of the General Prosecutor and the

Ministry of Justice

United Kingdom-

England and Wales Her Majesty's Attorney General for England and Wales

Northern Ireland Her Majesty's Attorney General for Northern

Ireland

Scotland Her Majesty's Lord Advocate for Scotland

United Arab Emirates

United Mexican States The Office of the Attorney General

United States of

America The Attorney General of the United States of

America

Uruguay The Ministry of Education and Culture

Uzbekistan

Venezuela

Yemen

Yugoslavia, The Federal Republic of

Zambia

Zimbabwe

SCHEDULE 2 section 1(2)

MODIFICATIONS OF THE DRUG TRAFFICKING

(BAILIWICK OF GUERNSEY) LAW, 2000

1. In section 1 subsection (3) shall be omitted.

2. For section 2 there shall be substituted the following section:

"External confiscation orders

2. (1) An order made by a court in a designated country for the purpose of recovering payments or other rewards received in connection with drug trafficking or their value is referred to in this Law as an "external confiscation order".

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

3. Sections 3 to 5 shall be omitted.

4. In section 6 -

(a) subsection (1) shall be omitted;

(b) for subsection (2) there shall be substituted the following subsection:

"(2) In this Law "realisable property" means, subject to subsection (3) below -

(a) in relation to an external confiscation order made in respect of specified property, the property which is specified in the order; and

(b) in any other case -

(i) any property held by the defendant; and

(ii) any property held by a person to whom the defendant has directly or indirectly made a gift caught by this Law.";

5. In section 7 subsection (4) shall be omitted.

6. In section 8 in subsection (1) for the words "commencement of the Law" there shall be substituted the words "commencement of the Drug Trafficking Law (Bailiwick of Guernsey) (Designated Countries and Territories) Ordinance, 2000".

7. Sections 9 to 24 shall be omitted.

8. In section 25 -

(a) for subsection (1)(a) there shall be substituted the following:

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

(b) in subsection (1)(b) the words "or the application has not" shall be omitted;

(d) subsection (2) shall be omitted;

(e) for subsection (3) there shall be substituted:

"(3) The powers mentioned in subsection (1) above are also exercisable where it appears to the Royal Court that proceedings are to be instituted against the defendant in a designated country and that there are reasonable grounds for believing that an external confiscation order may be made in them.";

(f) subsection (4) shall be omitted;

(g) in subsection 5(a) after "Her Majesty's Procureur" insert the words "on behalf of the government of a specified country or where an external confiscation order has been registered under section 36 of this Law, on behalf of Her Majesty's Sheriff,";

(h) in subsection 6(b)(i) the words after "proceedings" are deleted and "in relation to which the order was made are concluded;" substituted.

9. In section 26 -

(a) for subsections 2(a) and (b) there shall be substituted the following:

"(a) where an application under section 25(5) above relates to an external confiscation order made in respect of specified property, to property which is specified in that order; and

(b) in any other case -

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

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

10. In section 27 -

(a) for subsection 1(a) and (b) there shall be substituted the following:

"(a) where a fixed amount is payable under an external confiscation order, of an amount not exceeding the amount so payable, and

(b) in any other case, of an amount equal to the value from time to time of the property charged.";

(b) in subsection (4) for the words "a confiscation order" substitute "an external confiscation order".

11. In section 28(1) for the words "confiscation order" substitute "external confiscation order".

12. After section 28 there shall be inserted the following section:

"Applications for restraint and charging orders

28A. Notwithstanding anything in Rules of Court, an application under section 25(5) of this Law shall be supported by an affidavit which shall -

(a) state, where applicable, the grounds for believing that an external confiscation 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 realisable property in respect of which the order is sought and specify the person or persons holding such property;

(c) in a case to which section 25(3) of the Law 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.".

13. In section 29, for subsection (1) there shall be substituted the following subsection:

"(1) Where an external confiscation order has been registered in the Royal Court under section 36 of this Law the Royal Court may, on the application of Her Majesty's Procureur exercise the powers conferred by subsections (2) to (6) below.".

14. (a) in section 30 in subsection (1) for the words "confiscation order" substitute "external confiscation order".

(b) in subsection (3) for the words "If, after the amount payable under the confiscation order", substitute "Where a fixed amount is payable under the external confiscation order and, after that amount".

15. In section 31 -

(a) for subsection (2) substitute -

"(2) Subject to subsections (3) to (6) the powers shall be exercised with a view to -

(a) recovering property which is liable to be recovered under an external confiscation order registered in the Royal Court under section 36; or

(b) making available for recovery property which may become liable to be recovered under any external confiscation order which may be made in the defendant's case."; and

(b) in subsection (5) for the words "confiscation order" substitute "external confiscation order".

16. Section 35 shall be omitted.

17. In section 36 -

(a) in subsection (3), after the word "satisfied" there shall be inserted the words "by the recovery of all property liable to be recovered under it or";

18. In section 37 -

(a) in subsection (1), for the word "Part" there shall be substituted the word "Law";

(b) for subsection (2), there shall be substituted the following subsection:

"(2) 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 column 2 of the Appendix hereto has been taken there in respect of alleged drug trafficking by the defendant, or

(b) where no steps have been specified in relation thereto as mentioned in paragraph (a) above, the defendant has been notified in writing in accordance with the laws of the designated country that the competent authorities of that country have begun proceedings against him in respect of alleged drug trafficking, or

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

"(3) Proceedings for an offence are concluded -

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

(b) on the satisfaction of an external confiscation order made in the proceedings, whether by the recovery of all property liable to be recovered, or the payment of any amount due";

(d) subsections (4) and (5) shall be omitted;

(e) for subsection (6), there shall be substituted the following subsection -

"(6) An external confiscation order is satisfied when no property remains liable to be recovered under it, or no amount is due under it.";

(f) subsection (7) shall be omitted; and

(g) in subsection (8) before the word "order" the first time that it appears there shall be inserted the words "external confiscation".

19. Sections 38 to 67 shall be omitted.

20. In section 69

(a) in subsection (1) -

(i) for the definition of "defendant" there shall be substituted the following definition:

""defendant" means a person against whom an external confiscation order has been made, or a person against whom proceedings which may result in an external confiscation order being made have been, or are to be, instituted in a court in a designated country.";

(ii) the definition of "modifications" shall be omitted;

(b) at the end of subsection (3) the fullstop shall be omitted and there shall be added the words ", and whether received before or after the commencement of the Drug Trafficking Act (Designated countries and Territories) Ordinance, 2000 and whether received in connection with drug trafficking carried on by the recipient or some other person."; and

21. For section 70 there shall be substituted the following section:

"70. In this Law the expressions listed below are defined by, or otherwise fall to be construed in accordance with, the provisions of the Law indicated below -

Alderney company section 69(1)

Alderney Land Register section 69(1)

the Bailiff section 69(1)

the Bailiwick section 69(1)

Bailiwick company section 69(1)

charging order section 27(2)

conclusion of proceedings in a designated country section 37(3)

defendant section 69(1)

drug trafficking section 1(1) and (2)

external confiscation order section 2(1

gift caught by this Law section 8(1)

"held" in relation to property section 68(5)(a)

institution of proceedings in a designated country section 37(2)

"interest" in relation to property section 68(3)

making a gift section 8(2)

property section 68(1)

realisable property section 6(2)

restraint order section 26(1)

"satisfied" in relation to an external confiscation order section 37(6)

"subject to appeal" in relation to an

external confiscation order section 37(8)

"transferred" in relation to property section 68(5)(b)

value of gift, payment or reward section 7(2)

value of property section 7(1).

22. After section 70 there shall be inserted the Appendix set out at the end of Schedule 2 to this Ordinance.

23. Sections 73, 74 and 76 shall be omitted.

27. The Schedules to the Law shall be omitted.

APPENDIX Section 37(2)

INSTITUTION OF PROCEEDINGS

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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;

Antigua and Barbuda when a person has been charged with a scheduled offence

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) when a person is charged with an offence after having been taken into custody without a warrant;

The Bahamas (a) when an information has been laid before a justice of the peace;

(b) when a person is charged with an offence after having been taken into custody without a warrant;

Bahrain when a bill of indictment is lodged in court against any person for an offence

Barbados (a) when an information has been laid before a magistrate;

(b) when a person is charged with an offence;

Bermuda when an information is laid charging a person with an offence

Bolivia when a warrant is issued by a competent judge or an order to institute proceedings, containing the preventive annotation of property liable to registration or the bank deposit of the monies, assets and property of the accused

British Virgin (a) when a summons or warrant is issued in

Islands respect of an offence;

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

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 offence;

(b) when a person is charged with the offence after being arrested without a warrant under subsection (5) of that section

Chile when an application for a decision from the competent judicial authority is made

Colombia when a preliminary investigation or a formal process has begun and, in either case, a Resolution has been issued for a freezing or seizure order

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;

Guyana when a charge has been laid against a person for an offence

Hong Kong (a) when a magistrate issues a warrant or summons;

(b) when a person is charged with an offence;

India (a) when information relating to 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;

(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 who is out of the Island;

(b) when a person is arrested and charged with an offence;

(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 preventative 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;

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

Ukraine when a criminal case is brought

United Kingdom (a) when an information has been laid before a justice of the peace;

(b) when a person is charged with an offence;

(d) when a petition warrant is granted

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".

[a]	Order in Council No. VII of 2000.
[b]	Recueil d'Ordonnances Tome XXV, p.264.Recueil d'Ordonnances Tome XXVI, pp.13 and 296 and No. VII of 1998.