CONFISCATION ACT 1997 - SECT 101 Production orders

CONFISCATION ACT 1997 - SECT 101

S. 101(1) amended by Nos 79/2014 s. 33(1), 6/2018 s. 68(Sch.  2 item 26.9).

    (1)     A court may, on an application under section 100(2) or 100A(1), if it considers that, having regard to the matters contained in the affidavit of the applicant and to any other sworn or affirmed evidence before it, there are reasonable grounds for doing so, make a production order against the person and, if it is in the public interest to do so, an order under subsection (6).

    (2)     A production order may require the person against whom it is made—

S. 101(2)(a) amended by Nos 37/2014 s. 10(Sch. item 25.17), 44/2022 s. 31.

        (a)     to produce to a investigative officer at a specified time and place; or

S. 101(2)(b) amended by Nos 37/2014 s. 10(Sch. item 25.17), 44/2022 s. 31.

        (b)     to make available to a investigative officer for inspection at a specified time or times—

any property-tracking documents that are in the person's possession or control.

S. 101(3) amended by Nos 79/2014 s. 33(2), 6/2018 s. 68(Sch.  2 item 26.9).

    (3)     In the case of an application under section 100(2), if the applicant's affidavit—

        (a)     states that he or she believes that—

              (i)     the person who was convicted of or is believed to have committed the offence derived a benefit in relation to the offence, having regard to section 67 or  68 (as the case may be); and

              (ii)     property specified in the application—

    (A)     is subject to the effective control of that person; or

    (B)     was the subject of a gift from that person; and

        (b)     sets out the grounds on which the applicant holds those beliefs—

the court may if it considers that, having regard to the matters contained in that affidavit and to any other sworn or affirmed evidence before it, there are reasonable grounds for doing so, treat any document relevant to identifying, locating or quantifying that property as a property-tracking document in relation to the offence.

S. 101(3AA) inserted by No. 44/2022 s. 43.

    (3AA)     In the case of an application under subsection 100(2), if the applicant's affidavit—

        (a)     states that the applicant believes that—

              (i)     property specified in the application—

    (A)     is subject to the effective control of that person; or

    (B)     was the subject of a gift from that person; and

              (ii)     the person against whom the order is sought has possession or control of one or more property-tracking documents relevant to any of the following—

    (A)     the enforcement of a pecuniary penalty order against the person;

    (B)     the enforcement of a compensation order or restitution order under Part 4 of the Sentencing Act 1991 against the person; and

        (b)     sets out the grounds on which the applicant holds those beliefs—

the court may if it considers that, having regard to the matters contained in that affidavit and to any other sworn or affirmed evidence before it, there are reasonable grounds for doing so, treat any document relevant to identifying, locating or quantifying that property as a property‑tracking document in relation to the matters specified in paragraph (a)(ii).

S. 101(3A) inserted by No. 79/2014 s. 33(3), 6/2018 s. 68(Sch.  2 item 26.9).

    (3A)     In the case of an application under section 100A(1), if the applicant's affidavit—

        (a)     states that a person is suspected of having engaged in serious criminal activity; and

        (b)     states that the applicant believes that property specified in the application—

              (i)     is subject to the effective control of a person suspected of having engaged in serious criminal activity; or

              (ii)     was the subject of a gift from that person; and

        (c)     sets out the grounds on which the applicant holds that belief—

the court may if it considers that, having regard to the matters contained in that affidavit and to any other sworn or affirmed evidence before it, there are reasonable grounds for doing so, treat any document relevant to identifying, locating or quantifying that property as a property-tracking document in relation to the serious criminal activity.

    (4)     The court must not make a production order of the kind referred to in subsection (2)(a) in respect of any ledgers, day-books, cash-books, account books or other accounting records used in the ordinary business of banking or in respect of any document contained in a public register required to be kept by or under any Act.

    (5)     When a production order has been made the applicant must give written notice of its making to the person against whom it is made.

    (6)     If a court makes a production order against a person, it may order that—

S. 101(6)(a) amended by No. 43/1998

s. 28(a).

        (a)     the person must not disclose the existence or contents of the order to any person except a legal practitioner acting for or engaged on behalf of the person against whom the production order is made; and

S. 101(6)(b) amended by No. 43/1998

s. 28(b)(i)(ii).

        (b)     the legal practitioner must not disclose the existence or contents of the order to any person other than the person for whom the legal practitioner is acting or on whose behalf the legal practitioner has been engaged.