Guyana State Asset Recovery Bill 2016

Consultations will be held August 11, 2016 @ hotel pegasus

Draft, 25th July 2016
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GUYANA
BILL No. of 2016
STATE ASSETS RECOVERY BILL 2016
ARRANGEMENTS OF SECTIONS
SECTION
PART I
PRELIMINARY
1. Short title and commencement.
2. Interpretation.
PART II
ESTABLISHMENT OF THE STATE ASSETS RECOVERY AGENCY
3. The State Assets Recovery Agency and the Director as a corporation sole.
4. Director and Deputy Director of SARA.
5. Appointments of Director, Deputy Director, staff, terms and conditions of appointments,
finance etc.
6. Functions of SARA.
7. Functions of the Director.
8. Director’s powers to determine operations.
9. Designation of Director and officers of SARA by Ministers.
10. Accreditation and training.
11. Cooperation between SARA and other agencies.
12. Annual plan.
13. Code of Conduct and code of practice.
PART III
ESTABLISHMENT OF THE RECOVERY OF STATE ASSETS FUND
14. Establishment of a Recovery of State Assets Fund.
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PART IV
CIVIL RECOVERY AND PRESERVATION OF STATE PROPERTY
OBTAINED THROUGH UNLAWFUL CONDUCT
15. Nature of proceedings.
16. Meaning of unlawful conduct.
17. Property obtained through unlawful conduct.
18. Director to take appropriate action to recover State property.
CIVIL RECOVERY INVESTIGATION
19. Civil recovery investigation.
20. Director’s investigation powers.
21. Offences prejudicing an investigation.
DISCLOSURE OF INFORMATION
22. Information obtained by Director.
23. Disclosure of information to Director by permitted persons upon request.
24. Offence.
25. Further disclosure of information disclosed to the Director by a permitted person.
26. Further disclosure of information by Director.
RESTRAINT ORDER
27. Restraint Order.
28. Application for a Restraint Order.
29. Other contents of a Restraint Order.
30. Application to vary or discharge of Restraint Order.
31. Expiration of a Restraint Order.
32. Notice of application.
33. Living expenses.
34. Affidavit specifying property and income.
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35. Registration of orders.
ANCILLARY ORDERS
36. Ancillary orders.
37. Application for ancillary order.
38. Notice of application.
39. Statement.
40. Appointment of Asset Manager.
CIVIL RECOVERY ORDER
41. Persons against whom a Civil Recovery Order may be made.
42. Property which may be the subject of a Civil Recovery Order.
43. Application.
44. Property other than State property.
45. Effect of Civil Recovery Order.
46. Court may adjourn hearing of application.
47. Dealing with civil recovery property prohibited.
48. Victims of theft, etc.
49. Consent Order.
50. Civil Recovery Order after interests in property not disclosed.
51. Compensation.
52. Director may discharge revenue functions of the Revenue Authority where a Civil Recovery
Order is not appropriate.
53. Limitation.
EVIDENCE IN PROCEEDINGS FOR
CIVIL RECOVERY ORDER AND RESTRAINT ORDER
54. Evidence in proceedings.
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GENERAL
55. Seizure of property by authorised persons.
56. Bankruptcy of respondent.
57. Trustee in bankruptcy.
58. Winding up of company.
PART V
ORDERS TO ASSIST INVESTIGATION
DISCLOSURE ORDER
59. Disclosure Order.
60. Requirements for making a Disclosure Order.
61. Offences.
62. Statements.
63. Privileged question, information and document.
64. Copies and retention of documents.
65. Application for a Disclosure Order.
CUSTOMER INFORMATION ORDER
66. Customer Information Order.
67. Order for financial institution to provide customer information.
68. Meaning of customer information.
69. Requirements for making of Customer Information Order.
70. Offences.
71. Statements.
72. Disclosure of customer information.
73. Application for Customer Information Order.
PRODUCTION ORDER
74. Production Order.
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75. Order to grant entry.
76. Privileged material.
77. Copies or retention of material.
78. Computer information.
79. Government departments.
80. Application for a Production Order and an order to grant entry.
SEARCH AND SEIZURE WARRANT
81. Search and seizure warrant.
82. Requirements for a search and seizure warrant where production order not available.
83. Privileged or excluded material.
84. Application for search and seizure warrant.
85. Authority to do things under a warrant.
86. Copies and retention of material seized.
ACCOUNT MONITORING ORDER
87. Account Monitoring Order.
88. Requirements for making of Account Monitoring Order.
89. Statements.
90. Disclosure of information.
91. Application for an Accounting Monitoring Order.
92. Tipping off regarding Customer Information or Account Monitoring Order.
PART VI
INTERNATIONAL COOPERATION
93. Sharing recovered property with a foreign state or territory.
94. Director may enter into agreements with authority of a foreign state or territory, etc.
95. Assistance to a foreign state or territory.
96. Registration of external orders.
97. Property vested in State until Director makes arrangement.
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98. Evidence of corresponding law.
99. Evidence in a foreign state or territory.
100. Proceedings in foreign state or territory.
101. Director to inform Minister of request for evidence in foreign state and territory.
102. Civil Recovery Order relating to external unlawful conduct.
PART VII
MISCELLANEOUS
103. Immunity.
104. Offences against SARA’s staff.
105. Transitional arrangements – staffing of SARA.
106. Regulations.
SCHEDULE
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A BILL
Intituled
AN ACT to establish a State Asset Recovery Agency in consonance with the United Nations
Convention Against Corruption 2003 headed by a Director who shall be a corporation
sole to recover through civil proceedings State property unlawfully acquired by a public
official or any other person, to provide for investigations leading to the granting by the
High Court of Restraint and Civil Recovery Orders in respect of unlawfully acquired
property, to engage in international cooperation in the recovery of stolen assets of States
within the contemplation of the Act, and for related matters.
A.D. 2016 Enacted by the Parliament of Guyana:- PART I
PRELIMINARY
Short title and
commencement.
1. This Act may be cited as the State Assets Recovery Act 2016.
Interpretation. 2. (1) In this Act –
“account monitoring order” means an order made under section 87;
Cap. 10:11
“AMLCFT Act” means the Anti-Money Laundering and
Countering the Financing of Terrorism Act;
“Asset Manager” means a person appointed by the Court under
section 40 to take possession, control and care of property
and includes a Receiver;
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“authorised officer” means –
(a) the Director of SARA;
(b) Deputy Director of SARA;
(c) a designated member of the staff of SARA; or
(d) an authorised person;
“authorised person” means a person authorised in writing by the
Director either generally or in a special case, to act as an
authorised officer;
“beneficial ownership” means ownership by a natural person or
persons who ultimately exercise individually or jointly voting
rights representing at least twenty-five per cent of the total
shares, or otherwise have ownership rights of a legal entity;
or ownership by a natural person or persons who ultimately
owns or controls a customer or the person on whose behalf a
transaction is being conducted and includes those persons
who exercise ultimate effective control over a legal person or
arrangement;
Cap. 15:01
“Central Authority” notwithstanding the meaning given to it in
section 3 of the Mutual Assistance in Criminal Matters Act,
means the Minister responsible for legal affairs who shall
discharge the functions of the central authority under the
Mutual Assistance in Criminal Matters Act in relation to this
Act;
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“Civil Recovery Order” means a non-conviction based asset
recovery order made under section 42;
Cap. 79:04
“Commissioner-General” means the Commissioner-General of the
Revenue Authority appointed under section 21 of the
Revenue Authority Act;
“competent authority” means the Director of SARA and any
person authorised by him in that behalf;
“Court” means the High Court;
“currency” means –
(a) the coin and paper money of Guyana or a foreign state
or territory that is designated as legal tender and which
is customarily used and accepted as a medium of
exchange in the country of issue;
(b) monetary instruments that may be exchanged for money,
such as cheques, travellers cheques, money orders,
promissory notes or any other negotiable instruments
including bearer negotiable instruments whether or not
endorsed without restriction, or made out to a fictitious
payee in a form in which title to the monetary
instruments pass on delivery;
(c) where the context permits, currency includes currency in
electronic form;
“customer information order” means an order made under section
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66;
“Director” means the Director of the State Assets Recovery Agency
appointed under section 5;
“Disclosure Order” means an order made under section 59;
“document” means any record of information and includes –
(a) anything on which there is writing;
(b) any electronic document or electronically stored
information;
(c) anything on which there are marks, figures, symbols or
perforations having meaning for persons qualified to
interpret them;
(d) anything from which sounds, images or writing can be
produced, with or without the aid of anything else; or
(e) a map, plan, drawing, photograph or similar thing;
Cap. 85:03
Cap. 10:11
“financial institution” has the same meaning as in the Financial
Institutions Act and includes the other financial institutions
as specified in the First Schedule to the AMLCFT Act;
“interest in property” means –
(a) a legal or equitable estate or interest in the property; or
(b) a right, power or privilege in connection with the
property,
whether present or future and whether vested or contingent;
“Minister” means the Minister responsible for legal affairs;
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Cap. 10:11
“money laundering” has the same meaning as in section 2(1) of the
AMLCFT Act;
“owner” in relation to an interest in property includes a person who
has effective control of the interest;
“person” includes any entity, natural or juridical, a corporation,
partnership, trust or estate, joint stock company, association,
syndicate, joint venture, or other unincorporated organization
or group, capable of acquiring rights or entering into
obligations;
“premises” includes all or part of any structure, building, aircraft,
vehicle, vessel or any land;
Cap. 10:11
“proceeds of crime” has the same meaning as in section 2(1) of the
AMLCFT Act;
“Production Order” means an order made under section 74;
“property” includes –
(a) any property or interest in the property owned by the
State, a local government authority, a statutory body, a
public authority, including residential, commercial
and industrial land and other physical assets, such as
machinery and equipment;
(b) State owned enterprises and all funds paid to such
enterprises or guaranteed for such enterprises by the
Government;
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(c) any benefit, profit, income or financial gain accruing,
directly or indirectly, or incidental to the grant of any
type of concession by the Government, but not
including any benefit, profit, income or financial gain
accruing to the beneficiary or beneficiaries of the
particular concession exclusively under the terms of
that particular concession;
(d) investments, holdings;
(e) currency;
(f) precious metals, gold and precious stones, jewellery
made of gold and precious stones;
(g) legal documents or instruments in any form, including
electronic or digital, evidencing title to or interests in
assets of every kind;
(h) all possessions, assets and all other property movable
or immovable, tangible or intangible, including any
discretionary trust or chose in action;
(i) any other property wherever situated whether in
Guyana or in a foreign state or territory and includes
any interest in such property;
(j) any benefit, income or profits from proceeds of crime
or unlawful conduct; and
(k) property held by any other person and assets of every
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kind, whether tangible or intangible;
“public official” includes any person holding or a person who has
held a legislative, executive, administrative or judicial office,
whether appointed or elected, whether permanent or
temporary, whether paid or unpaid, irrespective of that
person’s seniority, or any other person who performed or
performs a public function, including for a public agency or
a public enterprise, or provided or provides a public service;
“recoverable property” means State property obtained through
unlawful conduct involving a public official or any other
person or any benefit obtained or derived in connection with
a public official’s or any other person’s unlawful conduct in
respect of State property;
“respondent” means the person upon whom an application notice is
served;
“restraint order” means an order made under section 27;
“rules of court” means rules of the High Court;
“search and seizure warrant” means a warrant issued under section
81;
“State Assets Recovery Agency” means the State Assets Recovery
Agency known as SARA established under section 3.
PART II
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ESTABLISHMENT OF A STATE ASSETS RECOVERY AGENCY
The State Assets
Recovery Agency and
the Director as a
corporation sole.
3. (1) There is established a State Assets Recovery Agency (SARA).
(2) The person holding the post of Director of the State Assets
Recovery Agency shall be a corporation sole.
Director and Deputy
Director of SARA.
4. (1) There shall be a Director and Deputy Director of SARA.
(2) The Director assisted by the Deputy Director shall carry out
the functions of SARA.
(3) The Deputy Director shall act as Director during any vacancy
in that office or if the Director is absent.
(4) Anything which the Director is authorised or required to do
may be done by –
(a) any member of staff of SARA under the direction
of the Director; or
(b) a person providing services under arrangements
made by the Director, if authorised in writing by the
Director, generally or specifically, for that purpose.
Appointments of
Director, Deputy
Director, terms and
conditions of
appointments, finance,
etc.
Schedule
5. The provisions of the Schedule shall have effect in relation to the
appointments of the Director, Deputy Director, their terms and conditions
of appointment, staff, finance and other related matters of SARA.
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Functions of SARA. 6. (1) In addition to the functions of SARA in other provisions of
this Act, the functions of SARA are –
(a) the investigation into whether property or interests in
property constitutes State property obtained by or
derived, directly or indirectly from, or in whole or in
part, with or in connection with, unlawful conduct
involving a public official or any other person, or
whether benefit has been derived, directly or indirectly,
in whole or in part, with or in connection with a public
official’s or any other person’s unlawful conduct in
respect of State property;
(b) the tracing and identification of property, whether
situated in Guyana or in a foreign state or territory, of
persons, suspected to be State property obtained or
derived, directly or indirectly, from unlawful conduct
involving a public official or any other person,
including where such property is held by, or for the
benefit of, third parties;
(c) the tracing and identification of specified property,
wherever situated, that was acquired, in whole or in
part, with or in connection with property that, directly
or indirectly, constitutes State property suspected to be
the proceeds of unlawful conduct involving a public
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official or any other person, including where such
specified property is held by, or for the benefit of, third
parties;
(d) the tracing and identification of any other benefit
acquired or derived, directly or indirectly, in whole or
in part, with or in connection with a public official’s or
any other person’s unlawful conduct in respect of State
property;
(e) the taking of appropriate action under this Act to
deprive or deny any person of the property referred to
in paragraphs (b) and (c), or the benefit referred to in
paragraph (d), in whole or in part, as may be
appropriate;
(f) to institute and conduct proceedings in the Court for the
purposes of recovery or protection of State property, or
for the freezing of proceeds of corruption or unlawful
conduct or related offences, or the payment of
compensation and disciplinary measures in relation to
State property;
(g) to raise public awareness on the dangers of corruption
and enlist public support in combating corruption and
other crimes especially in relation to public offices and
state property; and
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(h) advise, on its own initiative, any person on any matter
within its function.
(2) SARA may cooperate and collaborate with other State
organs and agencies and any foreign government or international or
regional organization in the prevention and investigation of loss and
recovery of State property.
(3) SARA shall exercise all its powers under this Act necessary
or expedient for the efficient and effective execution of its functions.
(4) SARA may request and obtain professional and technical
assistance or advice from such persons or organizations, whether local or
foreign, as it considers appropriate.
Functions of the
Director.
7. (1) The functions of SARA shall be discharged in the way
which the Director considers is best calculated to contribute to the
reduction of crime and the recovery of State property derived from
unlawful conduct.
(2) The Director may do anything, including the carrying out
of investigations, which the Director considers appropriate for facilitating,
or incidental or conducive to, the discharge of the functions of SARA.
(3) In discharging the functions of SARA the Director shall
consider whether the recovery of State property may be better secured by
means of criminal investigations and criminal proceedings.
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Director’s powers to
determine operations.
8. The Director shall decide which particular operations are to be
mounted by SARA and how those operations are to be conducted.
Designation of
Director and officers
of SARA by
Ministers.
9. (1) The Minister responsible for finance on the request of the
Director, may in writing, designate the Director and other named officers
of SARA as persons having the powers of a revenue and customs officer.
(2) The Minister responsible for public security on the request of
the Director, may in writing, designate the Director and other named
officers of SARA as persons having the following powers –
(a) the powers of a police officer; and
(b) the powers of an immigration officer.
(3) An officer of SARA shall not be designated as having operational
powers unless the Director is satisfied that the officer –
(a) is capable of effectively exercising those powers;
(b) has received adequate training in respect of the
exercise of those powers; and
(c) is otherwise a suitable person to exercise those
powers.
(4) In this section –
Cap. 16:01
(a) “powers of a police officer” means powers granted
by Part IV of the Police Act;
Cap. 82:01
(b) “powers of a revenue and customs officer” means
powers granted by section 3 of the Customs Act;
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Cap. 14:02
(c) “powers of an immigration officer” means powers
authorised by the Chief Immigration Officer under
section 4 of the Immigration Act;
(d) “operational powers’ means any of the following –
(i) the powers of a police officer;
(ii) the powers of a revenue and customs officer;
and
(iii) the powers of an immigration officer.
Accreditation and
training.
10. (1) The Director may establish a system for the training and
accreditation of legal counsel, prosecutors, auditors, receivers, financial
investigators, accountants, police officers and other relevant professionals.
(2) The system of accreditation shall include provision for –
(a) the monitoring of the performance of the
accredited financial investigators; and
(b) the withdrawal of accreditation from any person
who contravenes or fails to comply with any
condition subject to which he was accredited.
(3) A person may be accredited in relation to this Act or in
relation to particular provisions of this Act.
(4) The accreditation may be limited to specific purposes.
(5) The Director shall make provision for the training of
persons in –
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(a) the operation of this Act; and
(b) financial investigation.
(6) The Director shall ensure any training which is authorised
or endorsed is subject to regular review for the purpose of ensuring that
such training remain consistent with current best practices.
Cooperation between
SARA and other
agencies.
11. (1) The Director may –
(a) enter into an agreement with any Government
Ministry or Department, Public Authority or
statutory body in Guyana for the collection, use or
disclosure of information, including personal
information, for the purpose of exchanging or
sharing information within Guyana or for any other
purpose under this Act;
(b) participate in appropriate consultations with any
local or international civil society organisation;
and
(c) if thought fit, conduct any appropriate
investigation in conjunction either with the police
or with any other person who is, in the opinion of
the Director, a proper person to be concerned with
it.
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(2) Persons who have functions relating to the investigation or
prosecution of offences shall co-operate with the Director in the discharge
of the functions of the Director.
Cap. 10:11
(3) There shall be mutual cooperation between the Director,
the Director of Public Prosecutions and the Director of the Financial
Intelligence Unit appointed under section 8 of the AMLCFT Act.
(4) Where the Director requests the Commissioner of Police
for any assistance in connection with the discharge of the functions of the
Director, either by the Commissioner of Police or any other member of the
Police Force, it shall be the duty of the Commissioner of Police to provide
or ensure the provision of the assistance to the Director.
(5) The Director of Public Prosecutions and the Commissioner
of Police shall, as soon as practicable, inform the Director of any criminal
investigation or criminal proceeding involving State property which may
become subject to forfeiture, confiscation or civil recovery.
(6) The Director shall, as soon as practicable, inform the
Director of Public Prosecutions and the Commissioner of Police when
commencing a civil recovery investigation.
(7) Where State property referred to in section 18 is subject to
civil recovery proceedings under this Act, and that property is, or may be,
subject to criminal proceedings that has not yet commenced or is pending

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(a) the Director may seek an adjournment of the civil
recovery proceedings; or
(b) if it would be more effective to proceed under this
Act, then the Director may proceed under this Act.
(8) There shall be mutually agreed memoranda of
understanding between the Director and the Central Authority, and
between the Director and other appropriate law enforcement authorities,
and any other permitted Public Authority or statutory body specified under
section 23(4) or designated by the Minister under section 23(5), regulating
cooperation between them.
(9) The provisions of the memoranda of understanding shall be
adhered to and complied with.
(10) The Director may provide assistance –
(a) to the government of a foreign state or territory or a
body discharging functions of a public nature in a
foreign state or territory if the government or the
body requests assistance; and
(b) as the Director considers appropriate in all the
circumstances, if request is made for assistance.
Annual plan. 12. (1) The Director shall, at least three months before the
beginning of each financial year, prepare a plan setting out how SARA
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intends to discharge its functions, including an estimate of revenues and
expenditures during the financial year.
(2) The annual plan shall include a statement of –
(a) SARA’s objectives for the financial year;
(b) any strategic plan for the financial year, whether or
not relating to his objectives;
(c) SARA’s priorities for the financial year;
(d) the financial resources expected to be available for
the financial year; and
(e) the proposed allocation of those resources.
(3) The Director shall through the Minister cause a copy of the
annual plan to be tabled in the National Assembly.
Code of Conduct and
code of practice.
Cap. 26:01
13. (1) The Director and staff of SARA shall be subject to the Code
of Conduct as prescribed in Schedule 2 of the Integrity Commission Act.
(2) Subject to subsection (1), the Director shall prepare a code
of practice as to the discharge the functions of –
(a) the Director;
(b) staff of SARA;
(c) accredited financial investigators.
(3) The Director –
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(a) shall publish the draft code of practice;
(b) shall consider any representations made about the
draft; and
(c) may amend the draft accordingly.
(4) After the Director has proceeded under subsection (3) the
Director through the Minister shall cause the code to be laid before the
National Assembly.
(5) A person mentioned in subsection (2) shall comply with the
code of practice in the discharge of any functions.
(6) A person who fails to comply with any provision of the
code of practice may be subject to disciplinary action.
PART III
ESTABLISHMENT OF
THE RECOVERY OF STATE ASSETS FUND
Establishment of
Recovery of State
Assets Fund.
14. (1) There is established the Recovery of State Assets Fund for
the purposes of receiving –
(a) credits from Civil Recovery Orders; and
(b) payments made or debts recovered in relation to
Civil Recovery Orders made under this Act.
(2) There shall be credited to the Fund –
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(a) twenty-five percent of all moneys derived from the
enforcement of a Recovery Order;
(b) the proceeds of sale of property which is the subject
of an order under section 40;
(c) any income derived from the investment of any
amount standing to the credit of the Fund.
(3) The Director may authorise payments out of the Recovery
of State Assets Fund –
(a) to facilitate the discharge by SARA of its functions,
including commencement of actions for the
enforcement of this Act;
(b) to compensate victims who suffered losses as a result
of an unlawful conduct;
(c) to transfer recovered property to a foreign state or
territory or share it pursuant to any treaty, agreement
or arrangement;
(d) to fund such training or capacity building as may be
required; and
(e) for payment of fees to counsel, forensic experts,
investigators, receivers and other professionals
providing expertise and assistance.
(4) Subject to subsections (2) and (3) any sums received by
the Director shall be paid into the Consolidated Fund.
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PART IV
CIVIL RECOVERY AND PRESERVATION OF STATE PROPERTY
OBTAINED THROUGH UNLAWFUL CONDUCT
Nature of proceedings. 15. (1) All proceedings under this Act shall be civil proceedings.
(2) The rules of evidence applicable in civil proceedings shall
apply to proceedings under this Act.
(3) The standard of proof required to determine any question
arising under this Act shall be on the balance of probabilities.
Meaning of unlawful
conduct.
16. (1) Conduct is unlawful conduct if it constitutes an offence
under any of the criminal, administrative, revenue or any other law of
Guyana.
(2) Conduct is unlawful conduct which –
(a) occurs in a foreign state or territory and constitutes an
offence under the law of the foreign state or territory;
and
(b) if it occurred in Guyana would constitute an offence
under the criminal, administrative, revenue or any
other law of Guyana.
(3) The Court shall decide on a balance of probabilities
whether it is proved that any matters alleged to constitute unlawful conduct
have occurred.
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Property obtained
through unlawful
conduct.
17. (1) A person benefits from or obtains property through
unlawful conduct, whether his own unlawful conduct or another’s, if he
obtains property –
(a) by or in return for the unlawful conduct; or
(b) as a result of or in connection with the unlawful
conduct of a public official or any other person in
relation to State property.
(2) In deciding whether any property was obtained through
unlawful conduct –
(a) it is immaterial whether or not any money, goods or
services were provided in order to put the person in
question in a position to carry out the unlawful
conduct;
(b) it is not necessary to show that the conduct was of a
particular kind if –
(i) it is shown that the property was obtained
through conduct of one of a number of kinds,
each of which would have been unlawful
conduct; or
(ii) by evidence it is shown that the circumstances
in which the property was obtained were such
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as to give rise to an irresistible inference that it
could only have been derived from unlawful
conduct.
(3) If a person obtains a pecuniary advantage as a result of or
in connection with unlawful conduct of a public official or any other
person in relation to State property, he is to be taken to obtain as a result
of, or in connection with the conduct, a sum of money equal to the value
of the pecuniary advantage.
(4) References to property or a pecuniary advantage obtained
in connection with unlawful conduct include references to property or a
pecuniary advantage obtained in both that connection and some other.
(5) If a person benefits from the unlawful conduct his benefit
is the property obtained as a result of or in connection with the unlawful
conduct.
(6) The following rules apply in relation to property –
(a) property is obtained by a person if he obtains an
interest in it;
(b) references to an interest, in relation to land, are to
any legal estate or equitable interest or power;
(c) references to an interest, in relation to property other
than land, include references to a right including a
right to possession.
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(7) Any reference to an officer of Revenue Authority includes
a reference to a collector of taxes or an inspector of taxes.
Cap. 26:01
Cap. 79:04
(8) For the purposes of this Act, the failure to make full and
frank disclosure, or the provision of false or misleading information, by
any person who is under a legal obligation to submit full financial
disclosure as defined in relevant law, to –
(a) the Integrity Commission established under section
3 of the Integrity Commission Act;
(b) the Revenue Authority, established under section 9
of the Revenue Authority Act; or
(c) any other public authority,
amounts to a breach of the relevant law, and constitutes unlawful conduct.
Director to take
appropriate action to
recover State property.
18. (1) The Director shall take all necessary steps for the purpose
of obtaining the civil recovery of property where the Director believes that
the property constitutes –
(a) State property derived, directly or indirectly from,
unlawful conduct involving a public official or any
other person; or
(b) specified property which was acquired, in whole or in
part, with or in connection with, State property that,
directly or indirectly, constitutes proceeds of
Draft, 25th July 2016
30
unlawful conduct of a public official or any other
person; or
(c) benefit derived, directly or indirectly, in whole or in
part, in connection with a public official’s or any
other person’s unlawful conduct in respect of State
property.
(2) The steps referred to in subsection (1) include those
referred to section 11 and where appropriate, subject to any international
agreement, cooperation with any police force or any authority of a foreign
state or territory.
CIVIL RECOVERY INVESTIGATION
Civil recovery
investigation.
19. (1) The Director may undertake, or authorise designated
officers of SARA to undertake civil recovery investigations in the
enforcement of the functions of SARA.
(2) A civil recovery investigation is an investigation into –
(a) whether any property, or any specified property, is
State property obtained or derived, directly or
indirectly, from unlawful conduct involving a
public official or any other person;
(b) whether specified property was acquired, in whole
or in part, with or in connection with State property
obtained or derived, directly or indirectly, from
Draft, 25th July 2016
31
Cap. 10:11
unlawful conduct involving a public official or any
other person;
(c) whether a benefit has been derived, directly or
indirectly, in whole or in part, with or in connection
with a public official’s or any other person’s
unlawful conduct in respect of State property;
(d) who holds the property; or
(e) the extent or whereabouts of the property.
(3) An investigation is not a civil recovery investigation if the
property in question is detained under section 37 or 37A of the AMLCFT
Act.
Director’s
investigation powers.
20. (1) The investigation powers of the Director shall be
discharged only for the purposes of an investigation under section 19, or
on a request made by a foreign court, tribunal or authority entitled to make
such a request, in any case in which it appears to the Director that there is
good reason to do so for the purpose of investigating any of the matters
mentioned in section 19(2).
(2) The request by a foreign court, tribunal or authority
referred to in subsection (1), may be made to the Court or the Central
Authority (the Minister) acting under Part III, relating to Commonwealth
Countries, or Part IV, relating to Countries other than Commonwealth
Countries, of the Mutual Assistance in Criminal Matters Act.
Draft, 25th July 2016
32
(3) In response to a request received by the Central Authority (the
Minister) from an foreign court, tribunal or authority, the Central
Authority (the Minister) shall convey the request to the Director who shall
not exercise his powers unless it appears to the Director on reasonable
grounds that the investigation in respect of which he has been requested to
obtain evidence involves property or interests in property, or any benefit,
obtained or derived, directly or indirectly from, or in whole or in part, with
or in connection with unlawful conduct involving a public official or any
other person.
(4) Where an investigation under section 19 has been
authorised by the Director, for the purposes of determining whether
property should be made subject to a Restraint Order under section 27 or
to a Civil Recovery Order under section 42, the Court may issue upon the
application of an authorised officer –
(a) a Disclosure Order under section 59;
(b) a Customer Information Order under section 66;
(c) a Production Order under section 74;
(d) a Search and Seizure Warrant under section 81;
(e) an Account Monitoring Order under section 87.
Offences prejudicing
an investigation.
21. (1) If a person knows or suspects that an authorised officer is
acting or proposing to act in connection with a civil recovery investigation
Draft, 25th July 2016
33
which is being or is about to be conducted, the person commits an offence
if –
(a) the person makes a disclosure which is likely to
prejudice the investigation; or
(b) the person falsifies, conceals, destroys or otherwise
disposes of, or causes or permits the falsification,
concealment, destruction or disposal of, documents
which are relevant to the investigation.
(2) A person who commits an offence under subsection (1) is liable
on summary conviction to a fine of two million dollars and imprisonment
for two years.
(3) A person does not commit an offence under subsection
(1)(a) if –
(a) the person does not know or suspect that the
disclosure is likely to prejudice the investigation;
(b) the disclosure is made in the discharge of a function
under this Act or any other enactment relating to
criminal conduct or benefit from criminal conduct
or in compliance with a requirement imposed under
or by virtue of this Act; or
(c) the person is a professional legal adviser and the
disclosure falls within subsection (4).
Draft, 25th July 2016
34
(4) A disclosure under subsection (3)(c) falls within this subsection
if it is a disclosure –
(a) to, or to a representative of a client of the
professional legal adviser in connection with the
giving by the adviser of legal advice to the client; or
(b) to any person in connection with legal proceedings
or contemplated legal proceedings.
(5) A person does not commit an offence under subsection
(1)(b) if –
(a) the person does not know or suspect that the
documents are relevant to the investigation; or
(b) the person does not intend to conceal any facts
disclosed by the documents from any authorised
officer carrying out the investigation.
DISCLOSURE OF INFORMATION
Information obtained
by Director.
22. (1) Information obtained by or on behalf of the Director in
connection with the discharge of any of the Director’s functions may be
used by the Director in connection with the discharge of any other
functions of the Director.
Draft, 25th July 2016
35
(2) Any person may disclose information to the Director if the
disclosure is made for the purposes of any of the functions of SARA.
Disclosure of
information to
Director by permitted
persons upon request.
23. (1) Information relating to any unlawful conduct, tax or financial
impropriety of any person, or any other relevant information that may
assist the Director in discharging his functions, which is held by, or on
behalf of, a permitted person listed in subsection (4), whether it was
obtained before or after the coming into force of this Act, shall, upon
request by the Director, be disclosed to the Director for the purpose of the
discharge by the Director of his functions.
(2) A disclosure under this section is not to be taken to breach
any restriction on the disclosure of information however imposed.
(3) This section does not affect a power to disclose which
exists apart from this section.
Cap. 10:11
(4) The permitted persons are –
(a) the Director of Public Prosecutions;
(b) the Commissioner of Police;
(c) the Director of the Financial Intelligence Unit
appointed under section 8 of the AMLCFT Act;
(d) the Head of the body known as Serious Organized
Crime Unit;
Draft, 25th July 2016
36
Cap. 26:01
Cap. 85:02
Cap. 10:10
Cap. 66:01
No. 8 of 2003
(e) the Chairman of the Integrity Commission appointed
under section 3 of the Integrity Commission Act;
(f) the Commissioner-General;
(g) the Governor of the Bank of Guyana appointed under
section 9 of the Bank of Guyana Act;
(h) the Head of the Central Anti-Narcotics Unit, which
Unit is referred to in section 22A of the Narcotic
Drugs Psychotropic Substances (Control) Act;
(i) the Chairman of the Guyana Gold Board, appointed
under section 3 of the Guyana Gold Board Act;
(j) the Chairman of the National Procurement and
Tender Administration, appointed under section 16 of
the Procurement Act;
(k) a police officer not below the rank of an Inspector
appointed by the Commissioner of Police.
(5) The Minister may designate as permitted persons, other
persons who discharge functions of a public nature.
(6) A designation under subsection (5) shall specify the
functions in respect of which the designation is made.
(7) A person shall not to be subjected to any detriment by any
act, or any deliberate failure to act, by anyone on the ground that he has,
Draft, 25th July 2016
37
in good faith, made a disclosure to the Director for the purposes of any of
the functions of SARA.
Offence. 24. (1) Any person who threatens, in any way intimidates or menaces,
assaults or attempts to assault a person who makes a disclosure to the
Director or an officer of SARA under sections 22 or 23 for the purposes
of any of the functions of SARA commits an offence.
(2) A person who commits an offence under subsection (1) is liable
on summary conviction to imprisonment for two years.
Further disclosure of
information disclosed
to the Director by a
permitted person.
25. (1) Except as provided for under section 26, information
obtained under section 23 from the Commissioner-General or from a
person acting on his behalf shall not be further disclosed except –
(a) for a purpose connected with the discharge of the
Director’s functions; and
(b) with the consent of the Commissioner-General.
(2) Consent under subsection (1) may be given –
(a) in relation to a particular disclosure;
(b) in relation to disclosures made in circumstances
specified or described in the consent.
(3) Information obtained under section 23 from a permitted
person other than the Commissioner-General or a person acting on his
Draft, 25th July 2016
38
behalf, may make the disclosure subject to such conditions as to further
disclosure by the Director as the permitted person thinks appropriate, and
the information shall not be further disclosed in contravention of the
conditions subject to which they were disclosed.
Further disclosure of
information by
Director.
Cap. 10:11
26. (1) Information obtained by or on behalf of the Director in
connection with the discharge of any of his functions may be disclosed by
the Director if the disclosure is for the purposes of any of the following –
(a) any criminal investigation which is being or may be
carried out, whether in Guyana or in a foreign state
or territory;
(b) any criminal proceedings which have been or may
be started, whether in Guyana or in a foreign state
or territory;
(c) the discharge of the Director’s functions;
(d) the discharge by the Director of Public Prosecutions
or the Director of the Financial Intelligence Unit of
their functions under of the AMLCFT Act;
(e) the discharge by a customs officer, a police officer
or a person authorised by the Director of the
Financial Intelligence Unit of his functions under
sections 37 or 37A of the AMLCFT Act;
Draft, 25th July 2016
39
(f) safeguarding national security;
(g) investigations or proceedings in a foreign state or
territory which have led or may lead to the making
of an external Confiscation Order, Civil Recovery
Order, Restraint Order, Freezing Order or other
similar orders;
(h) the discharge of a designated function.
(2) If the Director makes a disclosure of information for a
purpose specified in subsection (1) he may permit further disclosure of the
information by the person to whom he discloses it subject to such
conditions as he thinks fit and that person shall not further disclose the
information in contravention of the conditions.
(3) A disclosure under this section is not to be taken to breach
any restriction on the disclosure of information.
(4) A designated function is a function which the Minister
designates as a function of a public nature.
RESTRAINT ORDER
Restraint Order. 27. (1) Where, on application to it by an authorised officer, it
appears to the Court, on evidence tendered by the applicant, consisting of
or including evidence admissible by virtue of section 54, there are
reasonable grounds to believe that –
Draft, 25th July 2016
40
(a) (i) property or specified property constitutes,
directly or indirectly, State property obtained or
derived from unlawful conduct involving a
public official or any other person;
(ii) specified property was acquired, in whole or in
part, with or in connection with State property
obtained or derived, directly or indirectly, from
unlawful conduct involving a public official or
any other person; or
(iii) a person has benefited, or is in receipt of benefit
derived, directly or indirectly, in whole or in
part, with or in connection with a public
official’s or any other person’s unlawful conduct
with respect to State property; and
(b) the value of the property or, as the case may be, the
total value of the property or specified property or
benefit, or the aggregate value of the property,
specified property and benefit referred to in
paragraph (a), is not less than ten million Guyana
dollars,
the Court shall make a Restraint Order prohibiting the respondent, any
other specified person or any other person having notice of the order from
disposing or otherwise dealing with the whole or, if appropriate, a
Draft, 25th July 2016
41
specified part of the property or benefit diminishing its value.
(2) A restraint order shall not be made under subsection (1)
where –
(a) it is shown to the satisfaction of the Court, on evidence
tendered by the respondent or any other person –
(i) that particular property does not, directly or
indirectly, derive from or constitutes proceeds
of any unlawful conduct and was not acquired,
in whole or in part, with or in connection with
property that, directly or indirectly, derive
from any unlawful conduct, nor is benefit
deriving from unlawful conduct;
(ii) that the value of all the property to which the
order relate is less than ten million dollars; or
(b) the Court is satisfied there would be a serious risk of
injustice.
Application for a
Restraint Order.
28. A Restraint Order may be made on an ex parte application to a
Judge in Chambers.
Other contents of a
Restraint Order.
29. A Restraint Order –
(a) may contain such provisions, conditions and
restrictions as the Court considers necessary or
Draft, 25th July 2016
42
expedient; and
(b) shall provide for notice of it to be given to the
respondent and any other person who appears to be or
is affected by it unless the Court is satisfied that it is
not reasonably possible to ascertain the respondent’s
or that other person’s whereabouts.
Application to vary or
discharge a Restraint
Order.
30. (1) Where a Restraint Order is in force the Court on application
to it in that behalf at any time by the respondent or any other person
claiming an interest in any of the property concerned may, if it is shown
to the satisfaction of the Court –
(a) that the property or a specified part of it, is property
to which section 27(2)(a)(i) applies; or
(b) that the Order causes any other injustice,
vary or discharge the order or, as may be appropriate.
Cap. 10:11
(2) Where a Forfeiture Order or a Pecuniary Penalty Order made
under Part IV of the AMLCFT Act relates to any specified property that is
the subject of a Restraint Order made under this Act that is in force, the
Restraint Order shall –
(a) if it relates only to the specified property, stand
discharged; and
(b) if it also relates to other property, stand varied by the
exclusion from it of the specified property.
Draft, 25th July 2016
43
Expiration of a
Restraint Order.
31. Subject to section 30, a Restraint Order shall continue in force until –
(a) the determination of the application for a Civil
Recovery Order in relation to the property
concerned;
(b) the expiration of the ordinary time for bringing an
appeal from that determination; and
(c) if an appeal is brought, it or any further appeal is
determined or abandoned or the ordinary time for
bringing any further appeal has expired, whichever
is the latest, and shall then lapse.
Notice of application. 32. Except when an ex parte application is made, notice of an
application shall be given –
(a) where the application is under section 27, by the
applicant to the respondent, unless the Court is
satisfied that it is not reasonably possible to ascertain
the latter’s whereabouts; or
(b) where the application is under section 30 by the
respondent or other person making the application,
to the applicant,
and in either case, to any other person in relation to whom the Court directs
Draft, 25th July 2016
44
that notice of the application be given.
Living expenses. 33. (1) At any time while a Restraint Order is in force, the Court
may, on application to it in that behalf by the respondents or any other
person affected by the order, make such orders as it considers appropriate
in relation to any of the property concerned if it considers it essential to do
so for the purpose of enabling –
(a) the respondent to discharge the reasonable living
and other necessary expenses including legal
expenses in or in relation to proceedings under this
Act incurred or to be incurred by or in respect of the
respondent and his dependents; or
(b) the respondent or that other person to carry on a
business, trade, profession or other occupation to
which any of that property relates,
and the Court shall not make an Order under this section unless it is
satisfied that there is no other means by which the living and other
necessary expenses can be paid.
(2) An Order under this section may contain such conditions
and restrictions as the Court considers necessary and expedient for the
purpose of protecting the value of the property concerned and avoiding
any unnecessary diminution of the property.
(3) Notice of an application under this section shall be given
Draft, 25th July 2016
45
by the person making the application to the Director and any other person
in relation to whom the Court directs that notice of the application be
given.
Affidavit specifying
property and income.
34. (1) At any time during proceedings under sections 27 and 30
or while a Restraint Order is in force, the Court or in the case of an appeal
in such proceedings, the Court of Appeal may by order direct the
respondent or other person to file an affidavit specifying –
(a) the property of which the respondent is in possession
or control;
(b) the income and the sources of income of the
respondent during a period not exceeding ten years
ending on the date of the application for the Order as
the Court concerned may specify; or
(c) the matters required in both paragraphs (a) and (b).
(2) A statement made or document produced by a person
examined under subsection (1) may not be used in evidence against him
in criminal proceedings.
Cap. 5:03
(3) Subsection (2) shall not apply –
(a) on a prosecution for an offence of perjury under
section 99 of the Evidence Act; or
(b) on a prosecution for some other offence where, in
giving evidence, the person makes a statement
Draft, 25th July 2016
46
inconsistent with the statement mentioned in
subsection (2).
(4) A statement may not be used by virtue of subsection (3)(b)
against a person unless –
(a) evidence relating to it is adduced; or
(b) a question relating to it is asked by or on behalf of
that person in the proceedings arising out of the
prosecution.
Registration of orders. 35. (1) Where a Restraint Order is made, the Registrar of the
Supreme Court shall, in the case of registered land, furnish the Land
Registry with notice of the order and the Registrar of Lands shall cause an
entry in the appropriate register inhibiting, until such time as the order
lapses, is discharged or is varied so as to exclude the registered land or any
charge on the land from the application of the order, any dealing with any
registered land or charge on the land which appears to be affected by the
order.
(2) Where notice of an order has been given under subsection
(1) and the order is varied in relation to registered land, the Registrar of
the Supreme Court shall furnish the Registrar of Lands with notice to that
effect and the Registrar of Lands shall cause the entry made under
subsection (1) of this section to be varied to that effect.
(3) Where notice of an order has been given under subsection
Draft, 25th July 2016
47
(1) and the order is discharged or lapses, the Registrar of the Supreme
Court shall furnish the Registrar of Lands with notice to that effect and the
Registrar of Lands shall cancel the entry made under subsection (1).
(4) Where a Restraint Order is made, the Registrar of the
Supreme Court shall in the case of transported land, furnish the Registrar
of Deeds with notice of the order and the Registrar of Deeds shall cause
the notice to be registered in the Deeds Registry.
(5) Where notice of an order has been given under subsection
(4) and the order is varied, the Registrar of the Supreme Court shall furnish
the Registrar of Deeds with notice to that effect and the Registrar of Deeds
shall cause the notice registered under subsection (4) to be varied to that
effect.
Cap. 89:01
(6) Where notice of an order has been given under subsection
(4) and the order is discharged or lapses, the Registrar of the Supreme
Court shall furnish the Registrar of Deeds with notice to that effect and the
Registrar of Deeds shall cancel the registration made under subsection (4).
(7) Where a Restraint Order is made which applies to an
interest in a company or to the property of a company, the Registrar of the
Supreme Court shall furnish the Registrar of Companies with notice of the
order and the Registrar of Companies shall cause the notice to be entered
in the Register of Companies maintained under the Companies Act.
(8) Where notice of an order has been given under subsection
Draft, 25th July 2016
48
(7) and the order is varied, the Registrar of the Supreme Court shall furnish
the Registrar of Companies with notice to that effect and the Registrar of
Companies shall cause the notice registered under subsection (7) to be
varied to that effect.
(9) Where notice of an order has been given under subsection
(7) and the order is discharged or lapses, the Registrar of the Supreme
Court shall furnish the Registrar of Companies with notice to that effect
and the Registrar of Companies shall cancel the entry made under
subsection (7).
ANCILLARY ORDERS
Ancillary Orders. 36. (1) The Court may, when it makes a Restraint Order or at any
later time, make any Ancillary Order, whether or not affecting a person
whose interests in property are subject to the Restraint Order, that the
Court considers appropriate and, without limiting the generality of this,
the Court may make any one or more of the following Ancillary Orders –
(a) an order varying the interests in property to which
the Restraint Order relates;
(b) an order for the examination on oath of –
(i) the owner of an interest in property that is
subject to the Restraint Order; or
(ii) another person,
before the Court or before an officer of the Court
Draft, 25th July 2016
49
concerning the affairs of the owner, including the
nature and location of any property in which the
owner has an interest;
(c) an order for the examination on oath of a person
who is the spouse or a cohabitee of the owner of an
interest in property that is subject to the Restraint
Order, or other person who may be of assistance to
the Court, before the Court or before an officer of
the Court, concerning the affairs of the person,
including the nature and location of any property in
which the person or that owner has an interest;
(d) an order with respect to the carrying out of any
undertaking relating to the payment of damages
or costs given on behalf of the Director in
connection with the making of the Restraint Order;
(e) an order determining any question relating to the
interest, including any question affecting the
liabilities of the owner of the interest or the
functions of an Asset Manager;
(f) an order requiring or authorising the seizure or
taking of possession of property.
Application for
ancillary order.
37. An order under section 36 may be made on application –
Draft, 25th July 2016
50
(a) by an authorised officer;
(b) if the Restraint Order directed an Asset Manager to
take control of an interest in property, by the Asset
Manager; or
(c) with the leave of the Court, by any other person.
Notice of application. 38. The applicant for an order under section 36 shall give notice of the
application –
(a) if the applicant is a person referred to in section 37
(a) or (b), to the other person referred to in section
37(c); or
(b) if the applicant is a person referred to in section 37
(c), to the persons referred to in section 37(a) and
(b).
Statement. 39. (1) A statement made or document produced by a person examined
under section 36 may not be used in evidence against him in criminal
proceedings.
(2) Subsection (1) shall not apply –
Cap. 5:03
(a) on a prosecution for an offence of perjury under
section 99 of the Evidence Act; or
(b) on a prosecution for some other offence where, in
giving evidence, the person makes a statement
Draft, 25th July 2016
51
inconsistent with the statement mentioned in
subsection (1).
(3) A statement may not be used by virtue of subsection (1)
against a person unless –
(a) evidence relating to it is adduced; or
(b) a question relating to it is asked, by or on behalf of
that person in the proceedings arising out of the
prosecution.
Appointment of Asset
Manager.
40. (1) Where the Court has made a Restraint Order, the Court
shall, if it deems it appropriate, or at the request of the Director, at the time
of making the order or at a later time, appoint an Asset Manager to do,
subject to the directions of the Court or the Director, any one or more of
the following –
(a) to take possession or control of, and may insure, any
property to which the order relates;
(b) to become party to any proceedings affecting the
property;
(c) in the case of property that is perishable, or liable to
deterioration, decay or injury by being detained in
custody to sell or otherwise dispose of the said
property; and
(d) in accordance with the Court’s directions, to
Draft, 25th July 2016
52
manage, keep possession or dispose of or otherwise
deal with any property in respect of which he is
appointed, subject to such exceptions and
conditions if any as may be specified by the Court,
and may require any person having possession or
control of property in respect of which the Manager
is appointed to give possession of it to the Manager.
(2) Where the Court deems it appropriate, or at the request of
the Director, appoints an Asset Manager, the asset manager shall inform
the Director and the Court as soon as reasonably practicable if the Asset
Manager thinks that –
(a) any property to which the order applies by virtue of
a claim that it is recoverable property is not
recoverable property;
(b) any property to which the order does not apply is
recoverable property in relation to the same
unlawful conduct; or
(c) any property to which the order applies is held by a
person who is different from the person it is claimed
holds it; or
(d) there has been any other material change of
circumstances.
(3) The Restraint Order shall require the Asset Manager –
(a) to report his findings to the Court;
(b) to serve copies of his report on the Director and on
any person who holds any property to which the
Draft, 25th July 2016
53
order applies or who may otherwise be affected by
the report.
(4) Where an Asset Manager takes any action under this
section-
(a) in relation to property which is not property the
subject of a Restraint Order, being action which he
would be entitled to take if it were such property;
and
(b) believing, and having reasonable grounds for
believing, that he is entitled to take that action in
relation to that property,
the Asset Manager shall not be liable to any person in respect of any loss
or damage resulting from such action except in so far as the loss or damage
is caused by his negligence.
CIVIL RECOVERY ORDER
Civil Recovery Order. 41. The Director or other authorised officer may apply to the Court for
a Civil Recovery Order against any person believed to be holding or have
held, recoverable property, including where –
(a) the person has not been charged with an offence;
(b) the person has been acquitted of the offence;
Draft, 25th July 2016
54
(c) the charge against the person was withdrawn before
a verdict was returned or the proceedings
were stayed;
(d) the act which is the subject of the application was
committed by a person who is deceased at the time
of the application; or
(e) the person, whether or not, the subject of criminal
proceedings deliberately absconds and leaves
Guyana; and in such absence the Court shall not
permit that person to further a claim in any civil
recovery proceedings whilst out of the jurisdiction
except where that person is being held in custody in
any other jurisdiction for commission of criminal
conduct in that jurisdiction.
Property which may
be the subject of a
Civil Recovery Order.
42. (1) Subject to subsection (2), the Court, on an application to it
under section 41, may make a Civil Recovery Order in relation –
(a) to property or specified property held subject to a
Restraint Order under section 27; or
(b) to any other property,
directing that the whole or, if appropriate, a specified part of such property
be transferred, subject to such terms and conditions as the Court may
specify, to an Asset Manager or to such other person as the Court may
Draft, 25th July 2016
55
determine.
(2) Subject to subsection (6), the Court shall not make a Civil
Recovery Order in relation to any property the subject of an application
under subsection (1) unless –
(a) it is shown to the Court’s satisfaction that the property,
or specified property, subject to the application is –
(i) State property obtained or derived, directly
or indirectly, from unlawful conduct
involving a public official or any other
person; or
(ii) specified property acquired, in whole or in
part, with or in connection with State
property derived, directly or indirectly, from
unlawful conduct involving a public official
or any other person; or
(iii) a benefit derived, directly or indirectly, in
whole or in part, in connection with a public
official’s or any other person’s unlawful
conduct in respect of State property; or
(b) the Court is satisfied that there would not be a serious
risk of injustice.
(3) It shall be sufficient for the purposes of subsection (2) for
the Director or other authorised officer to show, on the balance of
Draft, 25th July 2016
56
probabilities, that the property is proceeds of the unlawful conduct,
without having to show that any person has been charged in relation to
such an offence.
(4) Where proceeds of the unlawful conduct referred to in
subsection (2) have become intermingled with property acquired from
legitimate sources, or have been transformed or converted, such property
shall be liable to civil recovery up to the assessed value of the
intermingled, transformed or converted proceeds, and includes any income
or other benefit derived from –
(a) the proceeds of the unlawful conduct;
(b) the property with which the proceeds have been
intermingled;
(c) the property into which the proceeds of the unlawful
conduct have been transformed or converted.
(5) If the Director or other authorised officer establishes, on
the balance of probabilities, that a person is or was in possession of
property which constituted proceeds of unlawful conduct as referred to in
subsection (2), and the whole, or part, of that property cannot with due
diligence be traced or identified or has been substantially altered,
destroyed or diminished in value, the Court may make a civil recovery
order in a sum up to the assessed monetary value of the whole, or part, of
that property as may be appropriate.
(6) In proceedings under subsection (1), before deciding
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57
whether to make a Civil Recovery Order, the Court shall give an
opportunity to be heard, and to show cause why the Order should not be
made, to any person claiming ownership of any of the property concerned.
Application. 43. (1) Application for a Civil Recovery Order shall be made by
summons supported by affidavit.
(2) The Director or other authorised officer shall give notice of an
application for a Civil Recovery Order to the respondent and to any other
person, if any, as the Court may direct, unless the Court is satisfied that it
is not reasonably possible to ascertain the whereabouts of the respondent,
or that other person.
Property other than
State property.
44. If during the course of a civil recovery investigation or civil
recovery proceedings property, other than State property, is discovered to
have been obtained or derived, directly or indirectly, through unlawful
conduct the Director may include that property as part of the civil recovery
application or refer the matter to the appropriate law enforcement
authority.
Effect of a Civil
Recovery Order.
45. (1) A Civil Recovery Order shall operate to deprive the
respondent of his rights, if any, in or to the property to which it relates and,
upon the making of the Order, the property shall stand transferred to the
Court appointed Asset Manager or other person to whom it relates.
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58
(2) The Asset Manager may sell or otherwise dispose of any
property transferred to him under this section, at the direction of the Court,
and any proceeds of such a disposition and any moneys transferred to him
under this section shall be paid into the Recovery of State Assets Fund and
the Consolidated Fund, as appropriate.
Court may adjourn
hearing of application.
46. The Court, if it considers it appropriate to do so in the interests of
justice, on the application of the respondent or, if the whereabouts of the
respondent cannot be ascertained, on its own initiative, may adjourn the
hearing of an application under section 41 for a period not exceeding two
years as it considers reasonable.
Dealing with civil
recovery property
prohibited.
47. (1) A person shall not dispose of, or otherwise deal with an
interest in property that is the subject of a Civil Recovery Order.
(2) A person who contravenes subsection (1) commits an
offence and is liable conviction on indictment to a fine equivalent to the
value of the property or to the interest concerned (as determined by the
Court) and to imprisonment for two years, unless it is proved that the
person had no notice that the interest was subject to the order concerned
and had no reason to suspect that it was.
(3) This section does not prevent a person from being dealt
with for a contempt of the Court, but a person may not, for the action, be
punished both for a contempt of the Court and under this section.
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59
(4) If an interest in property is disposed of or otherwise dealt
with in contravention of this section and the disposition or dealing was
either not for sufficient consideration or not in favour of a person who
acted in good faith, the disposition or dealing is void.
(5) It is not a contravention of this section if an interest in
property is disposed of or dealt with under the authority of this Act.
Victims of theft, etc. 48. (1) In proceedings for a Civil Recovery Order, a person who
claims that any property alleged to be recoverable property, or any part of
the property, belongs to him may apply to the Court for a declaration under
this section.
(2) If the applicant appears to the Court to meet the following
condition, the court may make a declaration to that effect that –
(a) the person was deprived of the property he claims, or
the property which it represents, by unlawful
conduct;
(b) the property he was deprived of was not recoverable
property immediately before he was deprived of it;
and
(c) the property he claims belongs to him.
(3) Property to which a declaration under this section applies
is not recoverable.
Consent Order. 49. (1) The Court may make an order staying any proceedings for
a Civil Recovery Order on terms agreed by the parties for the disposal of
the proceedings if each person to whose property the proceedings or the
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60
agreement relates is a party both to the proceedings and the agreement.
(2) An order under subsection (1) may –
(a) make provision for any property which may be
recoverable property to cease to be recoverable;
(b) make any further provision which the Court thinks
appropriate.
Civil Recovery Order
after interests in
property not disclosed.
50. (1) This section applies where –
(a) an application for a Civil Recovery Order is made;
and
(b) evidence or other representation was given or made
in proceedings for the order, or examination
proceedings under this Act,
by a person against whom the order is made as to that person’s interest in
property.
(2) The Director may apply to the Court for an order forfeiting to,
and vesting in, the State a specified interest in property of that person, that
was not disclosed in the evidence or representation, at the time the
evidence or representation was given or made.
(3) The Court shall make the order under subsection (2) if it is
satisfied on the balance of probabilities that the interest in property was an
interest of the defendant at the time the evidence or representation was
given or made.
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61
(4) An order under subsection (2) may be made even if the interest
in property was disposed of after the evidence or representation was given
or made but may not extend to an interest in property if –
(a) the whole or part of that interest was subsequently
acquired by a person for sufficient consideration
without knowledge, and in circumstances that would
not arouse a reasonable suspicion, that the property
or interest in property was at the time of acquisition
derived from the unlawful conduct of a public
official or any other person; or
(b) the whole or part of the interest in that property
subsequently vested in a person as a result of the
distribution of the estate of a deceased person.
(5) An order under subsection (2) may be made notwithstanding
the terms of any orders previously made by consent.
(6) Notice of an application under this section shall be given to
the person or any other person having an interest in property to which the
application relates and either of those persons may appear and adduce
evidence at the hearing of the application.
(7) The absence of a person entitled to be given notice of an
application for an order under this section does not prevent the Court from
making the order.
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62
Compensation. 51. (1) Where in the case of property to which a restraint order has
at any time applied, the Court does not in the course of the proceedings
decide that the property is recoverable property, the person whose property
it is may make an application to the Court for compensation.
(2) Subsection (1) does not apply if the Court –
(a) has made a declaration in respect of the property by
virtue of section 48; or
(b) makes an order under section 49.
(3) Where the Court has made a decision by reason of which
no recovery order could be made in respect of the property, the application
for compensation shall be made within the period of three months
beginning-
(a) with the date of the decision; or
(b) if any application is made for leave to appeal, with
the date on which the application is withdrawn or refused or, if the
application is granted, on which any proceedings on appeal are finally
concluded.
(4) Where the proceedings in respect of the property have been
discontinued by the Director, the application for compensation shall be
made within the period of three months beginning with the discontinuance.
(5) Where the Court is satisfied that the applicant has suffered
loss as a result of the restraint order, it may require the Director to pay
compensation to him.
(6) The amount of compensation to be paid under this section
is the amount the Court thinks reasonable, having regard to the loss
suffered and any other relevant circumstances.
Director may
discharge revenue
functions of the
Revenue Authority
where a Civil
Recovery Order is not
appropriate.
52. (1) The revenue functions which the Director may discharge
are the functions vested in the Commissioner-General which relate to –
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63
(a) income tax;
(b) capital gains tax;
(c) corporation tax;
(d) process fees in respect of estates of deceased
persons;
(e) property tax.
(2) Where during the course of a civil recovery investigation
the Director has reasonable grounds to suspect that –
(a) income arising or a gain accruing to a person in
respect of a chargeable period is chargeable to
income tax or is a chargeable gain, as the case may
be, and arises or accrues as a result of a public
official’s or any other person’s unlawful conduct,
whether wholly or partly and whether directly or
indirectly, in relation to State property;
(b) a company is chargeable to corporation tax on its
profits arising in respect of a chargeable period and
the profits arise as a result of a public official’s or
the company’s or any other person’s unlawful
conduct, whether wholly or partly and whether
directly or indirectly, in relation to State property;
(c) there has been a transfer of value which is a
disposition made by a person as a result of which the
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64
value of his estate immediately after the disposition
is less than it would be but for the disposition, and
the value transferred is attributable, in whole or in
part, directly or indirectly, to the proceeds of
unlawful conduct in relation to State property; or
(d) all or part of property comprised in a settlement,
which amounts to a discretionary trust, whether or
not any person has an interest in, possession of, or
becomes beneficially entitled to, income from the
trust, and the relevant property is, in whole or in part,
directly or indirectly, proceeds of unlawful conduct
in relation to State property,
and the Director determines that it is not appropriate, for whatever reason,
to proceed with an application for a civil recovery order, the Director may
serve on the Commissioner-General a notice containing the matters
specified in subsection (3).
(3) The notice referred to in subsection (2) shall state that
notwithstanding anything in any other law –
(a) the notice vests in the Director in relation to the person
or company under subsection (2)(a) or (b) and the
person or trustees under subsection (2)(c) or (d) the
respective revenue functions for the period stated in
the notice;
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65
(b) that the Director is by law from the date of the notice
assuming the functions of the Commissioner- General referred to in this section;
(c) that the Commissioner-General is not divested of his
functions in relation to the laws mentioned in this
section and he shall cooperate with the Director and
facilitate the work of the Director;
(4) The Director may serve on the Commissioner-General a notice
of withdrawal of the notice referred to in subsection (2) and shall do so if
the conditions under subsection (2) ceased.
(5) Upon service of the notice under subsection (4) all powers of
the Director in relation to the laws under this section shall cease and upon
such cessation the Commissioner-General shall assume his powers
enjoyed before the first notice was served by the Director.
(6) It is immaterial whether a chargeable gain period or any
part of it falls before or after the commencement of this Act.
(7) For the purpose of the discharge by the Director of any
functions vested in him by virtue of this Act it is immaterial that he cannot
identify a source of any income.
(8) The Director shall –
(a) apply any concession which has been published by
the Revenue Authority and which is available
generally to any person falling within its terms;
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66
(b) take account of any material published by the
Revenue Authority which does not fall within
paragraph (a).
(9) The person or trustees of the transfer or settlement referred to
in subsection (2)(c) or (d), against whom this section is applied has the
right of appeal against any assessment of tax made by the Director as if it
was made by the Commissioner-General or an officer of the Revenue
Authority.
Limitation. 53. (1) No proceedings shall be brought under this Act for a Civil
Recovery Order in respect of any recoverable property after the expiration
of twelve years from –
(a) in the case of proceedings for a recovery order in
respect of State property obtained, directly or
indirectly, through unlawful conduct, discovery that
the property was so obtained;
(b) in the case of proceedings for a recovery order in
respect of specified property which derives from, in
whole or in part, with or in connection with, State
Property obtained through the unlawful conduct of a
public official or any other person, discovery that the
specified property was so derived; or
(c) in the case of proceedings for a recovery order in
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67
respect of any other recoverable property, discovery
that the property obtained through or in connection
with unlawful conduct, was so obtained.
(2) In respect of Civil Recovery proceedings the time of the
absence from Guyana of a person subject to the recovery proceedings, any
period during which the unlawful conduct is concealed or its discovery is
prevented, or of any concealment or absence of the property, shall not be
reckoned as part of the twelve-year period of limitation.
(3) For the purposes of subsection (1), proceedings for a recovery
order are brought when an initial application is made for a restraint or civil
recovery order.
EVIDENCE IN PROCEEDINGS FOR
CIVIL RECOVERY ORDER AND RESTRAINT ORDER
Evidence in
proceedings.
54. (1) Where an authorised officer states in proceedings under
section 27 in an affidavit or on oral evidence, or in proceedings under
sections 41 and 42, in an affidavit or, if the Court so directs, in oral
evidence that the officer believes that –
(a) the respondent holds property or specified property
and that property is State property obtained or
derived, directly or indirectly, from unlawful
conduct involving a public official or any other
person;
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68
(b) the respondent holds specified property and that the
property was acquired, in whole or in part, with or in
connection with State property obtained or derived,
directly or indirectly, from unlawful conduct
involving a public official or any other person; or
(c) that the respondent has benefited or is in receipt of
benefit derived, directly or indirectly, in whole or in
part, with or in connection with a public official’s or
any other person’s unlawful conduct in respect of
State property; and
(d) that the value of the property or the total value of the
properties referred to in paragraphs (a), (b) and (c) is
not less than ten million dollars,
then, if the Court is satisfied that there are reasonable grounds for the
officer’s belief, the statement shall be evidence of the matters referred to
in paragraphs (a), (b) or (c), as may be appropriate, and of the value of the
property.
(2) The Court may, if it considers it appropriate to do so,
prohibit the publication of such information as it may determine in relation
to proceedings under this Act, including information in relation to
applications for, the making or refusal of and the contents of orders and
the persons to whom they relate.
(3) Production to the Court in proceedings under this Act of a
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69
document purporting to authorise a person, who is described in the
document as an officer of SARA, required to perform the function
conferred on an officer and signed by the Director shall be evidence that
the person is an officer so authorised.
GENERAL
Seizure of property by
authorised persons.
55. (1) Where an order of Court under this Act is in force, an
authorised person may, for the purpose of preventing any property the
subject of the order being removed from the State, seize the property.
(2) Property seized under this section shall be dealt with in
accordance with the directions of the Court.
Bankruptcy of
respondent.
56. (1) Where a person who is in possession or control of property
is adjudicated bankrupt, property subject to a Restraint Order or a Civil
Recovery Order, made before the order adjudicating the person bankrupt,
is excluded from the property of the bankrupt.
(2) Where a person has been adjudicated bankrupt, the powers
conferred on the Court by section 27 shall not be exercised in relation to
property of the bankrupt.
Trustee in bankruptcy. 57. (1) Without prejudice to the generality of any provision of any
other law, where –
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70
(a) a trustee in bankruptcy, seizes or disposes of any
property in relation to which his functions are not
exercisable because it is subject to a Restraint Order
or a Civil Recovery Order; and
(b) at the time of the seizure or disposal he believes, and
has reasonable grounds for believing, that he is
entitled, whether in pursuance of an order of a Court
or otherwise, to seize or dispose of that property,
he shall not be liable to any person in respect of any loss or damage
resulting from the seizure or disposal except in so far as the loss or damage
is caused by his negligence in so acting, and he shall have a lien on the
property, or the proceeds of its sale, for his expenses incurred in
connection with the bankruptcy or other proceedings in relation to which
the seizure or disposal purported to take place and for so much of his
remuneration as may reasonably be assigned for his acting in connection
with those proceedings.
(2) Where the trustee incurs expenses in respect of such
property as is mentioned in subsection (1) (a) and in so doing does not
know and has no reasonable grounds to believe that the property is for the
time being subject to an order of Court under this Act, he shall be entitled
whether or not he has seized or disposed of the property so as to have a
lien to payment of those expenses.
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71
Winding up of
company.
58. (1) Where property, the subject of a Restraint Order or a Civil
Recovery Order made before the relevant time, is in possession or control
of a company and an order for the winding up of the company has been
made or a resolution has been passed by the company for a voluntary
winding up, the functions of the liquidator or any provisional liquidator
shall not be exercisable in relation to the property.
(2) Where, in the case of a company, an order for its winding
up has been made or a resolution for its winding up has been passed, the
powers conferred by section 27 on the Court shall not be exercised in
relation to any property held by the company in relation to which the
functions of the liquidator are exercisable –
(a) so as to inhibit him from discharging those
functions for the purpose of distributing any
property held by the company to the company’s
creditors; or
(b) so as to prevent payment out of any property of
expenses including the remuneration of the
liquidator or any provisional liquidator properly
incurred in respect of the property.
(3) In this section “relevant time” means –
(a) where no order for the winding up of the company
has been made, the time of the passing of the
resolution for voluntary winding up;
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72
(b) where such an order has been made and, before the
presentation of the petition for the winding up of the
company by the Court, such a resolution had been
passed by the company, the time of the passing of
the resolution; and
(c) in any other case where such an order has been made,
the time of the making of the order.
PART V
ORDERS TO ASSIST INVESTIGATION
DISCLOSURE ORDER
Disclosure Order. 59. (1) A Judge may, on an application made to him by an
authorised officer, make a Disclosure Order if he is satisfied that each of
the requirements under section 60 for the making of the order is fulfilled.
(2) The application for a disclosure order shall state that
property specified in the application is subject to a civil recovery
investigation being carried out by SARA and the order is sought for the
purposes of the investigation.
(3) A disclosure order is an order authorising the Director to
give to any person the Director considers has relevant information notice
in writing requiring him to do, with respect to any matter relevant to the
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73
investigation for the purposes of which the order is sought, any or all of
the following –
(a) answer questions, either at a time specified in the
notice or at once, at a place so specified;
(b) provide information specified in the notice, by a
time and in a manner so specified;
(c) produce documents, or documents of a description,
specified in the notice, either at or by a time so
specified or at once, and in a manner so specified.
(4) In this section “relevant information” is information,
whether or not contained in a document, which the Director considers to
be relevant to the investigation.
(5) A person is not bound to comply with a requirement
imposed by a notice given under a disclosure order unless evidence of
authority to give the notice is produced to him.
Requirements for
making disclosure
order.
60. The requirements for the making of a disclosure order shall be-
(a) reasonable grounds for suspecting that the property
specified in the application for the order constitutes
State property –
(i) obtained by or derived directly or indirectly
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74
from unlawful conduct involving a public
official or any other person;
(ii) derived in whole or in part with or in
connection with unlawful conduct involving
a public official or any other person; or
(iii) being a benefit derived directly or indirectly
in whole or in part with or in connection with
a public official’s or any other person’s
unlawful conduct in respect of State
property;
(b) reasonable grounds for believing that information
which may be provided in compliance with a
requirement imposed under the order is likely to be
of substantial value, whether or not by itself, to the
investigation for the purposes of which the order is
sought;
(c) reasonable grounds for believing that it is in the
public interest for the information to be provided,
having regard to the benefit likely to accrue to the
investigation if the information is obtained.
Offences. 61. (1) A person commits an offence if without reasonable excuse
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75
he fails to comply with a requirement imposed on him under a disclosure
order.
(2) A person commits an offence if in purported compliance
with a requirement imposed on him under a disclosure order he –
(a) makes a statement which he knows to be false or
misleading in a material particular; or
(b) recklessly makes a statement which is false or
misleading in a material particular.
(3) A person who commits an offence under subsection (1) or (2) is
liable on summary conviction to a fine of two million dollars and
imprisonment for two years.
Statements. 62. (1) A statement made by a person in response to a requirement
imposed on him under a disclosure order may not be used in evidence
against him in criminal proceedings.
(2) Subsection (1) does not apply –
Cap. 5:03
(a) on a prosecution for an offence of perjury under
section 99 of the Evidence Act; or
(b) on a prosecution for some other offence where, in
giving evidence, the person makes a statement
inconsistent with the statement mentioned in
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subsection (1).
(3) A statement may not be used by virtue of subsection (1)
against a person unless –
(a) evidence relating to it is adduced; or
(b) a question relating to it is asked by him or on his
behalf in the proceedings arising out of the
prosecution.
Privileged question,
information and
document.
63. (1) A disclosure order does not confer the right to require a
person to answer any privileged question, provide any privileged
information or produce any privileged document, except that an attorney- at-law may be required to provide the name and address of a client of his.
(2) A privileged question is a question which the person would
be entitled to refuse to answer on grounds of legal professional privilege
in proceedings in the Court.
(3) Privileged information is any information which the person
would be entitled to refuse to provide on grounds of legal professional
privilege in proceedings in the Court.
(4) Privileged material is any material which the person would
be entitled to refuse to produce on grounds of legal professional privilege
in proceedings in the Court.
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(5) A disclosure order does not confer the right to require a
person to produce privileged material.
(6) A disclosure order has effect in spite of any restriction on
the disclosure of information.
Copies and retention of
documents.
64. (1) The Director may take copies of any documents produced in
compliance with a requirement to produce them which is imposed under a
disclosure order.
(2) Documents so produced may be retained for so long as it is
necessary to retain them as opposed to a copy of them in connection with
the investigation for the purposes of which the order was made.
(3) If the Director has reasonable grounds for believing that –
(a) the documents may need to be produced for the
purposes of any legal proceedings; and
(b) they might otherwise be unavailable for those
purposes,
they may be retained until the proceedings are concluded.
Application for
Disclosure Order.
65. (1) An application for a Disclosure Order may be made ex
parte to a Judge in Chambers.
(2) Rules of court where necessary may make provision as to
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the practice and procedure to be followed in connection with proceedings
relating to disclosure orders.
(3) An application to discharge or vary a disclosure order may
be made to the Court by the Director or any person affected by the order.
(4) The Court may discharge or vary the order.
CUSTOMER INFORMATION ORDER
Customer Information
Order.
66. (1) A Judge may, on an application made by the Director or an
officer acting on the authority of the Director, make a customer
information order if he is satisfied that each of the requirements under
section 69 for the making of the order is fulfilled.
(2) The application for a Customer Information Order shall
state that –
(a) property specified in the application is subject to a
civil recovery investigation;
(b) a person specified in the application appears to hold
the property;
(c) the order is sought for the purposes of the
investigation; and
(d) the order is sought against the financial institution
or financial institutions specified in the application.
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79
(3) An application for a Customer Information Order may
specify –
(a) all financial institutions;
(b) a particular financial institution; or
(c) a particular description of financial institutions.
Order for financial
institution to provide
customer information.
67. (1) A Customer Information Order is an order that a financial
institution covered by the application for the order shall, on being required
to do so by notice in writing given by an authorised officer, provide any
such customer information as it has relating to the person specified in the
application.
(2) A financial institution which is required to provide
information under a Customer Information Order shall provide the
information to an authorised officer in such manner, and at or by such time,
as an authorised officer requires.
(3) If a financial institution on which a requirement is imposed
by a notice given under a Customer Information Order requires the
production of evidence of authority to give the notice, it is not bound to
comply with the requirement unless evidence of the authority has been
produced to it.
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Meaning of customer
information.
68. (1) “Customer information”, in relation to a person and a
financial institution, is information whether the person holds or has held
an account or accounts at the financial institution, whether solely or jointly
with another, and if so, information as to –
(a) the matters specified in subsection (2) if the person
is an individual;
(b) the matters specified in subsection (3) if the person
is a company or limited liability partnership or a
similar body incorporated or otherwise established
in a foreign state or territory.
(2) The matters referred to in subsection (1)(a) are –
(a) the account number or numbers;
(b) the person’s full name;
(c) his date of birth;
(d) his most recent address and any previous addresses;
(e) the date or dates on which he began to hold the
account or accounts and, if he has ceased to hold the
account or any of the accounts, the date or dates on
which he did so;
(f) such evidence of his identity as was obtained by the
financial institution under any law relating to
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money laundering;
(g) the full name, date of birth and most recent address,
and any previous addresses, of any other person
who holds, or has held, an account at the financial
institution jointly with him;
(h) the account number or numbers of any other
account or accounts held at the financial institution
to which he is a signatory and details of the person
holding the other account or accounts.
(3) The matters referred to in subsection (1)(b) are –
(a) the account number or numbers;
(b) the person’s full name;
(c) a description of any business which the person
carries on;
Cap. 89:01
(d) the state or territory in which it is incorporated or
otherwise established and any number allocated to
it under the Companies Act or corresponding law of
any foreign state or territory;
(e) any number assigned to it for the purposes of value
added tax in Guyana;
(f) its registered office and any previous registered
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offices under the Companies Act or anything
similar under corresponding legislation of any
foreign state or territory;
Cap. 89:02
(g) its registered office and any previous registered
offices under the Partnership Act or any
corresponding law of any foreign state or territory;
(h) the date or dates on which it began to hold the
account or accounts and, if it has ceased to hold the
account or any of the accounts, the date or dates on
which it did so;
(i) such evidence of its identity as was obtained by the
financial institution under any law relating to
money laundering;
(j) the full name, date of birth and most recent address
and any previous addresses of any person who is a
signatory to the account or any of the accounts.
(4) The Minister may by order provide for information of a
description specified in the order –
(a) to be customer information; or
(b) no longer to be customer information.
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Requirements for
making of Customer
Information Order.
69. The requirements for the making of a Customer Information Order
are –
(a) there shall be reasonable grounds for suspecting that
the property specified in the application for the
order constitutes State property –
(i) obtained by or derived, directly or indirectly
from unlawful conduct involving a public
official, or any other person;
(ii) derived, in whole or in part, with or in
connection with, unlawful conduct involving
a public official, or any other person; or
(iii) being a benefit derived, directly or indirectly,
in whole or in part, with or in connection with
a public official’s or any other person’s
unlawful conduct in respect of State
property;
(b) there shall be reasonable grounds for suspecting the
person specified in the application holds all or some
of the property;
(c) there shall be reasonable grounds for believing that
customer information which may be provided in
compliance with the order is likely to be of
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84
substantial value, whether or not by itself, to the
investigation for the purposes of which the order is
sought; and
(d) there shall be reasonable grounds for believing that
it is in the public interest for the customer
information to be provided, having regard to the
benefit likely to accrue to the investigation if the
information is obtained.
Offences. 70. (1) A financial institution commits a summary offence if
without reasonable excuse it fails to comply with a requirement imposed
on it under a customer information order.
(2) A financial institution commits a summary offence if, in
purported compliance with a customer information order, it –
(a) makes a statement which it knows to be false or
misleading in a material particular, or
(b) recklessly makes a statement which is false or
misleading in a material particular.
Statements. 71. (1) A statement made by a financial institution in response to
a customer information order may not be used in evidence against it in
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85
criminal proceedings.
(2) Subsection (1) does not apply on a prosecution for an
offence where, in giving evidence, the financial institution makes a
statement inconsistent with the statement mentioned in subsection (1).
(3) A statement may not be used by virtue of subsection (2)
against a financial institution unless –
(a) evidence relating to it is adduced, or
(b) a question relating to it is asked,
by or on behalf of the financial institution in the proceedings arising out
of the prosecution.
Disclosure of
customer information.
72. A Customer Information Order has effect in spite of any restriction
on the disclosure of information.
Application for
Customer Information
Order.
73. (1) An application for a Customer Information Order may be
made ex parte to a Judge in Chambers.
(2) Rules of court where necessary may make provision as to
the practice and procedure to be followed in connection with proceedings
relating to Customer Information Orders.
(3) An application to discharge or vary a Customer
Information Order may be made to the Court by the person who applied
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86
for the order or any person affected by the order.
(4) The court may discharge or vary the order.
(5) If an authorised officer applies for a Customer Information
Order, an application to discharge or vary the order need not be made by
the same authorised officer.
(6) An authorised officer may not make an application for a
Customer Information Order or an application to vary such an order unless
he authorised to do so by the Director.
PRODUCTION ORDER
Production Order. 74. (1) A Judge may, on an application made to him by the
Director or an officer acting on the authority of the Director, make a
Production Order if he is satisfied that each of the requirements under
subsection (6) for the making of the order is fulfilled.
(2) The application for a production order shall state that –
(a) property specified in the application is subject to a
civil recovery investigation which is being carried
out by SARA and the order is sought for the
purposes of the investigation;
(b) the order is sought in relation to material, or
material of a description, specified in the
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87
application; and
(c) a person specified in the application appears to be
in possession or control of the material.
(3) A Production Order is an order either –
(a) requiring the person specified in the application for
the order as appearing to be in possession or control
of material, to produce it to an authorised officer for
him to take away; or
(b) requiring that person to give an authorised officer
access to the material, within the period stated in the
order.
(4) The period stated in a production order shall be a period of
fifteen days beginning with the day on which the order is made, unless it
appears to the Judge by whom the order is made that a longer or shorter
period would be appropriate in the particular circumstances.
(5) The requirements for the making of a production order
shall be –
(a) reasonable grounds for suspecting that the property
the application for the order specifies as being
subject to the investigation constitutes State
property –
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88
(i) obtained by or derived, directly or indirectly
from unlawful conduct involving a public
official, or any other person;
(ii) derived, in whole or in part, with or in
connection with, unlawful conduct involving
a public official, or any other person; or
(iii) being a benefit derived, directly or indirectly,
in whole or in part, with or in connection with
a public official’s or any other person’s
unlawful conduct in respect of State
property;
(b) reasonable grounds for believing that the person the
application specifies as appearing to be in
possession or control of the material so specified is
in possession or control of it;
(c) reasonable grounds for believing that the material is
likely to be of substantial value, whether or not by
itself, to the investigation for the purposes of which
the order is sought;
(d) reasonable grounds for believing that it is in the
public interest for the material to be produced or for
access to it to be given, having regard to –
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89
(i) the benefit likely to accrue to the
investigation if the material is obtained;
(ii) the circumstances under which the person
the application specifies as appearing to be
in possession or control of the material
holds it.
Order to grant entry. 75. If the Judge makes a Production Order requiring a person to give
an authorised officer access to material on any premises –
(a) the Judge may, on an application made to him by an
authorised officer and specifying the premises,
make an order to grant entry in relation to the
premises; and
(b) the order to grant entry is an order requiring an
authorised officer be permitted entry to the premises
and be allowed access to the material.
Privileged material. 76. (1) A Production Order shall not require a person to produce,
or give access to, privileged material.
(2) Privileged material is any material which the person would
be entitled to refuse to produce on grounds of legal professional privilege
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90
in proceedings in the Court.
(3) A production order has effect in spite of any restriction on
the disclosure of information however imposed.
Copies or retention of
material.
77. (1) An authorised officer may take copies of any material
which is produced, or to which access is given, in compliance with a
production order.
(2) Subject to subsection (3), material produced in compliance
with a Production Order may be retained for so long as it is necessary to
retain it, as opposed to copies of it, in connection with the investigation
for the purposes of which the order was made.
(3) If an authorised officer has reasonable grounds for
believing that –
(a) the material may need to be produced for the
purposes of any legal proceedings; and
(b) it might otherwise be unavailable for those
purposes,
it may be retained until the proceedings are concluded.
Computer information. 78. (1) This section applies if any of the material specified in an
application for a Production Order consists of information contained in a
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91
computer or any other method of electronic storage, including on cloud or
any external drive.
(2) If the order is an order requiring a person to produce the
material to an authorised officer for him to take away, it has effect as an
order to produce the material in a form in which it can be taken away by
him and in which it is visible and legible.
(3) If the order is an order requiring a person to give an
authorised officer access to the material, it has effect as an order to give
him access to the material in a form in which it is visible and legible.
Government
departments.
79. (1) A Production Order may be made in relation to material in
the possession or control of a government department.
(2) An order so made may require any officer of the
department, whether named in the order or not, who may for the time being
be in possession or control of the material to comply with it.
(3) An order containing the requirement under subsection (2)
shall be served as if the proceedings were civil proceedings against the
department.
(4) If an order contains the requirement –
(a) the person on whom it is served shall take all
reasonable steps to bring it to the attention of the
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92
officer concerned;
(b) any other officer of the department who is in receipt
of the order shall also take all reasonable steps to
bring it to the attention of the officer concerned.
(5) If the order is not brought to the attention of the officer
concerned within the period stated in the order the person on whom it is
served shall report the reasons for the failure to the Court.
Application for a
Production Order and
an order to grant entry.
80. (1) An application for a Production Order or an order to grant
entry may be made ex parte to a Judge in Chambers.
(2) Rules of court where necessary may make provision as to
the practice and procedure to be followed in connection with proceedings
relating to Production Orders and orders to grant entry.
(3) An application to discharge or vary a Production Order or
an order to grant entry may be made to the Court by the person who applied
for the order or any person affected by the order.
(4) The Court may discharge or vary an order under this
section.
(5) If an authorised officer applies for a Production Order or an
order to grant entry, an application to discharge or vary the order need not
be made by the same authorised officer.
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93
SEARCH AND SEIZURE WARRANT
Search and seizure
warrant.
81. (1) A Judge may, on an application made to him by an
authorised officer, issue a search and seizure warrant if he is satisfied that
either of the requirements set out in subsection (4) for the issuing of the
warrant is fulfilled.
(2) The application for a search and seizure warrant shall state
that –
(a) property specified in the application is subject to a
civil recovery investigation;
(b) the warrant is sought for the purposes of the
investigation;
(c) the warrant is sought in relation to the premises
specified in the application;
(d) the warrant is sought in relation to material
specified in the application, or, where material
could not be identified at the time of the application,
that there are reasonable grounds for believing that
there is material on the premises specified in the
application which –
(i) relates to the property specified in the
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94
application, the question whether it derives
from unlawful conduct, the question as to who
holds any such property, any question as to
whether the person who appears to hold any
such property holds other property which is
proceeds of crime, or any question as to the
extent or whereabouts of any property
mentioned in this paragraph; and
(ii) is likely to be of substantial value, whether or
not by itself, to the investigation for the
purposes of which the warrant is sought.
(3) A search and seizure warrant is a warrant authorising an
appropriate person –
(a) to enter and search the premises specified in the
application for the warrant; and
(b) to seize and retain any material found there which
is likely to be of substantial value, whether or not
by itself, to the investigation for the purposes of
which the application is made.
(4) The requirements for the issue of a search and seizure
warrant are –
(a) that a production order made in relation to material
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95
has not been complied with and there are reasonable
grounds for believing that the material is on the
premises specified in the application for the
warrant; or
(b) that, where a production order is not available,
section 82 is satisfied in relation to the warrant.
Requirements for a
search and seizure
warrant where
Production Order not
available.
82. (1) This section is satisfied in relation to a search and seizure
warrant if –
(a) subsection (2) applies; and
(b) either of the first or second set of conditions, set out
in subsections (3) and (4) respectively, is complied
with.
(2) This subsection applies if there are reasonable grounds for
suspecting that the property specified in the application for the warrant
constitutes State property –
(a) obtained by or derived, directly or indirectly from
unlawful conduct involving a public official, or any
other person;
(b) derived, in whole or in part, with or in connection
with, unlawful conduct involving a public official,
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96
or any other person; or
(c) being a benefit derived, directly or indirectly, in
whole or in part, with or in connection with a public
official’s or any other person’s unlawful conduct in
respect of State property.
(3) The first set of conditions is that –
(a) there are reasonable grounds for believing that any
material on the premises specified in the application
for the warrant is likely to be of substantial value,
whether or not by itself, to the investigation for the
purposes of which the warrant is sought;
(b) it is in the public interest for the material to be
obtained, having regard to the benefit likely to accrue
to the investigation if the material is obtained; and
(c) it would not be appropriate to make a production
order for any one or more of the following reasons –
(i) that it is not practicable to communicate with
any person against whom the production
order could be made;
(ii) that it is not practicable to communicate with
any person who would be required to comply
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97
with an order to grant entry to the premises;
(iii) that the investigation might be seriously
prejudiced unless an authorized person is
able to secure immediate access to the
material.
(4) The second set of conditions is that –
(a) there are reasonable grounds for believing that there
is material on the premises specified in the
application for the warrant and that the material –
(i) relates to the property specified in the
application, the question whether it derives
from unlawful conduct, the question as to
who holds any such property, or any question
as to the extent or whereabouts of any
property mentioned in this paragraph; and
(ii) is likely to be of substantial value, whether or
not by itself, to the investigation for the
purposes of which the warrant is sought;
(b) there are reasonable grounds for believing that it is
in the public interest for the material to be obtained,
having regard to the benefit likely to accrue to the
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98
investigation if the material is obtained, and
(c) any one or more of the following requirements is
met –
(i) it is not practicable to communicate with any
person entitled to grant entry to the premises;
(ii) entry to the premises will not be granted
unless a warrant is produced;
(iii) the investigation might be seriously
prejudiced unless an authorised person
arriving at the premises is able to secure
immediate entry to them.
Privileged or excluded
material.
83. (1) A search and seizure warrant does not confer the right to
seize privileged material.
(2) Privileged material is any material which a person would
be entitled to refuse to produce on grounds of legal professional privilege
in proceedings in the Court.
(3) A search and seizure warrant does not confer the right to
seize excluded material.
Application for search
and seizure warrant. 84. (1) An application for a warrant may be made ex parte to a
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Judge in Chambers.
(2) A warrant may be issued subject to conditions.
(3) A warrant continues in force until the end of the period of
one month starting with the day on which it is issued.
Authority to do things
under a warrant.
85. (1) A warrant authorises the person it names to require any
information which is held in a computer and is accessible from the
premises specified in the application for the warrant, and which the named
person believes relates to any matter relevant to the investigation, to be
produced in a form –
(a) in which it can be taken away; and
(b) in which it is visible and legible.
(2) A warrant may include provision authorising a person who
is exercising powers under it to do other things which –
(a) are specified in the warrant; and
(b) need to be done in order to give effect to it.
(3) If the Director gives written authority for members of staff
of SARA to accompany the person a warrant names when executing it and
a warrant is issued, the authorised member of staff shall give all assistance
to the person named in the warrant.
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100
Copies and retention
of material seized.
86. (1) Copies may be taken of any material seized under a
warrant.
(2) Material seized under a warrant may be retained for so long
as it is necessary to retain it, as opposed to copies of it, in connection with
the investigation for the purposes of which the warrant was issued.
(3) But if the Director has reasonable grounds for believing
that –
(a) the material may need to be produced for the
purposes of any legal proceedings; and
(b) it might otherwise be unavailable for those
purposes,
it may be retained until the proceedings are concluded.
ACCOUNT MONITORING ORDER
Account Monitoring
Order.
87. (1) A Judge may, on an application made to him by an
authorised officer, make an Account Monitoring Order if he is satisfied
that each of the requirements under section 88 for the making of the order
is fulfilled.
(2) The application for an Account Monitoring Order shall
state that –
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101
(a) property specified in the application is subject to a
civil recovery investigation;
(b) a person specified in the application appears to hold
the property;
(c) the order is sought for the purposes of the
investigation; and
(d) the order is sought against the financial institution
specified in the application in relation to account
information of the description so specified.
(3) Account information is information relating to an account
held at the financial institution specified in the application by the person
so specified, whether solely or jointly with another.
(4) The application for an Account Monitoring Order may
specify information relating to –
(a) all accounts held by the person specified in the
application for the order at the financial institution
so specified;
(b) a particular account so held; or
(c) a particular description of an account so held.
(6) An Account Monitoring Order is an order that the financial
institution specified in the application for the order shall, for the period
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102
stated in the order, provide account information of the description
specified in the order to an authorised officer in the manner and at the time
stated in the order.
(7) The period stated in an Account Monitoring Order shall not
exceed the period of ninety days beginning with the day on which the order
is made.
Requirements for
making of Account
Monitoring Order.
88. The requirements for the making of an Account Monitoring Order
are –
(a) there shall be reasonable grounds for suspecting that
the property specified in the application for the
order constitutes State property –
(i) obtained by or derived, directly or indirectly
from unlawful conduct involving a public
official, or any other person;
(ii) derived, in whole or in part, with or in
connection with, unlawful conduct involving
a public official, or any other person; or
(iii) being a benefit derived, directly or indirectly,
in whole or in part, with or in connection with
a public official’s or any other person’s
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103
unlawful conduct in respect of State
property;
(b) the person specified in the application holds all or
some of the property;
(c) there shall be reasonable grounds for believing that
account information which may be provided in
compliance with the order is likely to be of
substantial value, whether or not by itself, to the
investigation for the purposes of which the order is
sought; and
(d) there shall be reasonable grounds for believing that
it is in the public interest for the account
information to be provided, having regard to the
benefit likely to accrue to the investigation if the
information is obtained.
Statements. 89. (1) A statement made by a financial institution in response to
an Account Monitoring Order shall not be used in evidence against it in
criminal proceedings.
(2) Subsection (1) does not apply –
(a) in the case of proceedings for contempt of court; or
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104
(b) on a prosecution for an offence where, in giving
evidence, the financial institution makes a
statement inconsistent with the statement
mentioned in subsection (1).
(3) A statement shall not be used by virtue of subsection (2)(b)
against a financial institution unless –
(a) evidence relating to it is adduced; or
(b) a question relating to it is asked,
by or on behalf of the financial institution in the proceedings arising out
of the prosecution.
Disclosure of
information.
90. An Account Monitoring Order has effect in spite of any restriction
on the disclosure of information, however imposed.
Application for an
Account Monitoring
Order.
91. (1) An application for an Account Monitoring Order may be made
ex parte to a Judge in Chambers.
(2) Rules of Court where necessary may make provision as to
the practice and procedure to be followed in connection with proceedings
relating to account monitoring orders.
(3) An application to discharge or vary an Account Monitoring
Order may be made to the Court by the person who applied for the order
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105
or any person affected by the order.
(4) The Court may discharge or vary the order.
(5) If an authorised officer applies for an Account Monitoring
Order, an application to discharge or vary the order need not be by the
same authorised officer.
Tipping off regarding
Customer Information
Order and Account
Monitoring Order.
92. (1) A financial institution or an officer or employee of the financial
institution which, pursuant to section 66 or 87, is required to provide
customer information or account information in relation to any person and
provides information, or enables information to be provided, to that person
by any means whatsoever regarding the Customer Information Order or
the Account Monitoring Order, as the case may be commits an offence.
(2) A financial institution or an officer or employee of the financial
institution which contravenes subsection (1) commits an offence and is
liable on summary conviction –
(a) in the case of the officer or employee, to a fine of
one million dollars and to imprisonment for three
years; and
(b) in the case of the financial institution, to a fine of
not less than two million dollars nor more than ten
million.
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PART VI
INTERNATIONAL COOPERATION
Sharing recovered
property with a
foreign state or
territory.
93. (1) The Minister may enter into an arrangement with the competent
authorities of a foreign state or territory for the reciprocal sharing with that
state or territory of part of any property realised –
(a) in the foreign state or territory, as a result of action
taken by the Minister or Director pursuant to the
recovery of State property; or
(b) in Guyana, as a result of action taken in Guyana
pursuant to a civil recovery order.
(2) Any proceeds or benefits from unlawful conduct –
(a) recovered in a foreign state or territory pursuant to a
request from Guyana; or
(b) recovered in Guyana pursuant to a request by a
foreign state or territory,
to the extent available under any sharing agreement of recovered property,
arrangement or otherwise, shall be subject to the provisions of section 14.
Director may enter
into agreements with
authority of a foreign
state or territory, etc.
94. The Director may enter into an agreement with any ministry,
government department, public authority or police force of a foreign state
or territory for the collection, use or disclosure of information, including
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107
personal information, for the purpose of exchanging or sharing
information with a foreign state or territory or for any purpose under this
Act.
Assistance to foreign
state or territory.
95. (1) The Court or Competent Authority shall cooperate with a
court or competent authority of a foreign state or territory, taking the
appropriate measures to provide assistance in matters concerning the
recovery of property derived from unlawful conduct, in accordance with
this Act, and within the limits of their respective legal systems.
(2) The Court or Competent Authority may receive a request
from a court or competent authority of a foreign state or territory to
identify, trace, produce, seize, restrain or recover property or assets of
corresponding value, connected to or derived, directly or indirectly, from
unlawful conduct, and may take appropriate actions, including those
contained in sections 27, 41 and 42.
(3) The Court or Competent Authority may receive and take
appropriate measures with respect to a request from a Court or competent
authority of a foreign state or territory, for assistance in a civil or
administrative, investigation or proceedings, as the case may be, involving
property connected to or which is derived, directly or indirectly, from
unlawful conduct, or violations of any provision of this Act.
(4) Assistance referred to in this section includes –
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108
(a) providing original or certified copies of relevant
documents and records, including those of financial
institutions and government agencies;
(b) obtaining testimony for the requested states;
(c) service of documents;
(e) examining objects and places, executing searches and
seizures;
(d) providing information and evidentiary items, and
provisional measures.
(5) Any provision referring to secrecy or confidentiality shall
not be an impediment to compliance with this section, when the
information is requested by or shared with the Court or other competent
authority.
Registration of
external orders.
96. (1) On an application made by or on behalf of the government
or competent authority of a foreign state or territory referred to in section
95, the Court may register and enforce an external Restraint order or any
other order having a similar effect where made in connection with civil
recovery proceedings or a Civil Recovery Order made there if –
(a) it is satisfied that at the time of registration the
Order is in force and not subject to appeal;
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(b) it is satisfied, where the person affected by the
Order did not appear in the proceedings, that he
received notice of the proceedings in sufficient time
to enable him to defend them; and
(c) it is of the opinion that enforcing the Order in
Guyana would not be contrary to the interest of
justice.
(2) In subsection (1) (a), “appeal” includes any proceedings by
way of discharging, setting aside or varying the Order.
(3) Notice of the registration of any foreign Order shall be
published in the Gazette and two daily newspapers specified by the
Government.
(4) The Court shall cancel the registration of an external
Recovery Order if it appears to the Court that the Order has been satisfied
by payment of the amount due under it.
Property vested in
State until Director
makes arrangement.
97. (1) Subject to subsections (2), (3) and (4), where an Order has
been registered under section 96 and the Court is notified that it has been
established to the satisfaction of a foreign court that the property
constitutes property which is connected to or derived, directly or
indirectly, from unlawful conduct, the Court may order that the property
be recovered and be vested in the State until such arrangement is made by
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the Director with the foreign state or territory for its disposal or transfer.
(2) Unless the foreign state or territory and the Government of
Guyana agree otherwise, the Director may deduct such reasonable
expenses incurred in the recovery, investigation and judicial proceedings
which have led to the transfer referred to in subsection (1).
(3) The Court may make an order under subsection (1) on such
conditions as it thinks fit to impose, including any condition as to payment
of debts, sale, transfer or disposal of the property.
(4) Any person who claims to have an interest in property
subject to an Order registered under section 96 may, within twenty-one
days from the last publication of the registration under section 96(3), apply
to the Court for an Order under subsection (5).
(5) Where the Court is satisfied that the person under
subsection (4) acquired the property without knowing, and in
circumstances such as not to arouse a reasonable suspicion, that the
property was, at the time of acquisition, connected to or derived, directly
or indirectly, from unlawful conduct, the court may make an Order
declaring the nature of the interest of the applicant.
Evidence of
corresponding law.
98. (1) A document purporting to be issued by or on behalf of the
Government of a foreign state or territory and purporting to state the terms
of a corresponding law in force in that state or territory shall be admitted
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in evidence, in proceedings under this Act, on its production by the
Director without further proof, and such document shall be conclusive
evidence that –
(a) it is issued by or on behalf of the government of that
state or territory;
(b) the terms of such law are as stated in the document;
(c) any facts in the document to constitute an offence
under such law do constitute such offence.
(2) “Corresponding law” in the case of any civil recovery
proceedings under this Act means a law which corresponds with a
provision of Guyana law which creates a relevant offence.
Evidence in a foreign
state or territory.
99. (1) Where the Director is carrying out a civil recovery
investigation, the Director may employ the provisions of any agreement
made under section 94, utilize any other provision under this Act or he
may issue a letter of request if he believes that there is evidence in a foreign
state or territory –
(a) that a person subject to the investigation has
benefited from unlawful conduct involving State
property; or
(b) of the extent or whereabouts of that person’s
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benefit from the unlawful conduct involving State
property.
(2) Evidence obtained under this section or in pursuance of a
letter of request shall not be used –
(a) by any person other than the Director or any person
subject to the investigation;
(b) for any purpose other than that for which it is
obtained.
(3) Evidence includes documents and other articles.
(4) Rules of court where necessary may make provision as to
the practice and procedure to be followed in connection with proceedings
relating to the issue of letters of request by the Director under this section.
Proceedings in foreign
state or territory.
100. The Attorney-General or the Director may initiate legal
proceedings in a court of a foreign state or territory subject to the
provisions and requirements of the national law of the foreign state or
territory in order to establish title to or ownership of property acquired
through the commission of any unlawful conduct including conduct that
offends the United Nations Convention Against Corruption 2003 and to
seek the recovery of that property.
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Director to inform
Minister of request for
evidence in foreign
state or territory.
101. The Director shall inform in writing the Minister and the Minister
responsible foreign affairs of the initiation of legal proceedings in any
foreign state or territory under section 100 or of any outgoing request for
evidence from a relevant authority of the foreign state or territory under
section 99(2).
Civil Recovery Order
relating to external
unlawful conduct.
102. (1) Where the Director has reasonable grounds to believe that
property or interests in property was derived from external unlawful
conduct the Director may make an application for a Civil Recovery
Order relating to that property or interests in that property where the
person who owns the property or has an interest in the property is
domiciled in Guyana or the property is situated in Guyana.
(2) The Court may not make a Civil Recovery Order on any
such application unless it is satisfied that no action has been taken under
the law of any foreign state or territory against the property or any interests
in property of the person concerned that are the subject of the application
as a result of the external unlawful conduct.
(3) For the purposes of subsection (2), an affidavit of an
authorised officer that includes a statement that the officer has made due
enquiry and is satisfied that no action has been taken under the law of any
foreign state or territory against any interests in property of the person
concerned that are the subject of the application as a result of the external
unlawful conduct is proof, in the absence of evidence to the contrary, of
Draft, 25th July 2016
114
the matters contained in the affidavit.
PART VII
MISCELLANEOUS
Immunity. 103. (1) No proceedings or other action shall be brought or instituted
against the Director or member of SARA staff, any person acting on behalf
of SARA, an Asset Manager or other person appointed by the Court for
any act done in good faith in the performance or intended performance of
any duty under this Act, in the exercise or intended exercise of any power
under this Act, or for any default in the performance or exercise in good
faith of any such power or duty.
(2) No action or proceedings of any kind shall lie against a bank,
building society or other financial institution or any other person in any
Court in respect of any act or omission done or made in compliance with
an order under this Act.
Offences against
SARA’s staff.
104. (1) A person who makes or sends a threat to or, in any way
intimidates or menaces, or assaults or attempts to assault a member of staff
of SARA, or any member of the family of a member of staff of SARA
commits an offence.
(2) A person who commits an offence under this section shall
be liable on summary conviction to fine of two million dollars and to
imprisonment for two years.
Draft, 25th July 2016
115
Transitional
arrangements –
staffing of SARA.
105. (1) Subject to appointments being made under section 5, a
person who immediately before the commencement of this Act was
employed by the body known as the State Assets Recovery Unit (SARU)
shall after the commencement be deemed to be employed by the State
Assets Recovery Agency (SARA) on the same terms and conditions which
preceded that commencement.
(2) Within a period of not more than four months from the date
of commencement of this Act, the Parliamentary Committee on
appointments on the notification by the Minister shall recommend to the
National Assembly a person to be appointed as Director of the SARA.
Regulations. 106. (1) The Minister may make regulations for the better carrying out
of the provisions of this Act and for prescribing anything that needs to be
prescribed under this Act.
(2) A person who commits an offence under the regulations shall
on summary conviction be liable to a fine of one million dollars and to
imprisonment for three years and in the case of a body corporate a fine of
ten million dollars.
Draft, 25th July 2016
116
SCHEDULE s. 5
Appointment of
Director and Deputy
Director.
1. (1) The National Assembly shall –
(a) by a simple majority; and
(b) on the recommendation of the Parliamentary
Committee on Appointments,
appoint the Director and the Deputy Director of the State Assets Recovery
Agency.
(2) The person appointed as Director or Deputy Director of
SARA shall be a fit and proper person.
(3) The person appointed as the Director or Deputy Director
shall –
(a) (i) have significant experience in management or
skills in leading investigations into asset
recovery; or
(ii) hold a degree in law, economics or finance from
a recognized university; and
Draft, 25th July 2016
117
(iii) have at least ten years’ experience in a relevant
field; five of which shall be at a senior
management level; and
(b) have such other requirements that may be determined
by the Parliamentary Committee on Appointments.
(4) The Clerk of the National Assembly shall by letter inform
the Director and the Deputy Director of their appointment.
Terms and conditions
of appointment of
Director and Deputy
Director.
2. (1) The terms and conditions of the appointment of the
Director and Deputy Director, including their term of office shall be such
as determined by the Parliamentary Committee on Appointments.
(2) The appointment of the Director and Deputy Director shall
be for a period not less than three years and not more than five years.
(3) The Director and Deputy Director shall be eligible for
reappointment.
Appointment of staff. 3. The Director shall appoint such staff for SARA, with the approval
of the Minister as to numbers, remuneration and other terms and
conditions of service, the Director considers necessary for the discharge
of the functions of SARA.
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118
Removal from office. 4. (1) The Director or the Deputy Director may for cause, be
removed from office by the Parliamentary Committee on Appointments
with the concurrence of a simple majority of the National Assembly.
(2) Subject to subparagraph (3) the Director, the Deputy
Director or other member of Staff of the SARA may be removed from
office if any one of them –
(a) becomes of unsound mind or incapable of carrying
out their duties;
(b) becomes bankrupt or compounds with or suspends
any payment to their creditors;
(c) is convicted and sentenced to a term of imprisonment;
(d) is convicted of any offence involving dishonesty;
(e) is guilty of misconduct in relation to their duties;
(f) contravenes any provision of the Code of Conduct
referred to in section 18 or rules for public officers in
respect of which they may be made liable to
termination of their appointment.
(3) Before any action is taken against either the Director or the
Deputy Director of SARA under subparagraph (1) or a member of staff
under subparagraph (2) they shall be given an opportunity to make
representations on their behalf.
Draft, 25th July 2016
119
Financing of SARA. 5. (1) The funds for the annual budget of SARA shall consist of
the following –
(a) funds determined by the National Assembly based on
a budget tabled by the Director;
(b) any grants, gifts, donations or other endowments
given to SARA;
(c) such funds as may vest in or accrue to SARA in the
performance of its functions under this Act or any
other written law.
(2) Any gifts, funds, loans, donations or grants to SARA shall
be disclosed to the National Assembly and made public before use.
Remuneration. 6. The remuneration of the Director and the staff of SARA shall be paid
out of funds provided by the National Assembly.
Annual report. 7. (1) The Director shall, as soon as possible after the end of each
financial year, prepare a report on how SARA has discharged its functions
during the financial year.
(2) The report for any financial year apart from the first year
shall include –
(a) the Director’s annual plan for the financial year;
Draft, 25th July 2016
120
(b) costs associated with administration of the funds
referred to in sections 14 and 93, including costs for
external audits;
(c) amounts credited to those funds; and
(d) an assessment of the extent to which the functions
of SARA have been discharged.
(3) The Director shall, through the Minister, cause a copy of
each report to be laid before the National Assembly.
(4) “Financial year” means –
(a) the period beginning with the day this Act comes
into force and ending with the next date which
concludes the first financial year; and
(b) each subsequent period of twelve months beginning
on the day the financial year commences.
Exemption from
taxation.
8. (1) SARA, its assets, property, income, operations and
transactions are exempt from all taxation including customs duties,
capital gains tax, income tax, and property tax.
(2) No taxation of any kind shall be levied on any obligation
or security issued by SARA.
Draft, 25th July 2016
121
EXPLANATORY MEMORANDUM
Purpose of the Bill
The State Assets Recovery Bill 2016 is intended to give effect to the non-conviction based
asset recovery recommendations contained in the United Nations Convention Against
Corruption 2003, which was ratified by the Government of Guyana in April 2008. The Bill
therefore introduces legislation to combat unlawful conduct and corrupt practices in relation
to property and other assets owned by the State, or in which the State has an interest. In this
context, the Bill provides for the establishment of the State Assets Recovery Agency (SARA)
which has as its primary function, the civil recovery of State property obtained through the
unlawful conduct of a public official or other person, or any benefit obtained in connection
with that unlawful conduct, by way of civil proceedings taken in the High Court for a civil
recovery order. The granting of a civil recovery order vests in the State, ownership of any
property subject to the order. SARA will have a Director with responsibility for the effective
management and execution of its functions.
Civil Recovery
Draft, 25th July 2016
122
Civil recovery is a form of non-conviction based asset forfeiture which allows for the recovery
in civil proceedings before the High Court of property which is, or represents, property
obtained through unlawful conduct. It is very important to note that the cause of action is
against the property itself and not against the person who holds or has an interest in the
property. Thus the person who holds the property, the subject of the intended recovery order,
might not be the person who carried out the unlawful conduct, and a civil recovery order is not
a conviction or a sentence.
The proceedings are civil in nature and the civil standard of proof (the balance of probabilities)
applies. SARA will, nevertheless, require cogent evidence to satisfy the Court that property is
the proceeds of unlawful conduct. But to establish that property was obtained through unlawful
conduct, it will not be necessary to prove the commission of a particular criminal offence, by
a particular person, on a particular occasion. It will be sufficient to prove that the property was
obtained through conduct of a particular type, e.g. corruption, bribery, fraud etc. This however,
cannot be achieved solely on the basis that the person holding the property has insufficient
identifiable lawful income to account for the extent of property he holds or has an interest in.
Though the absence of any evidence from the person to explain the source of the property, or
the giving of a false explanation, will allow the court to infer that the source was unlawful.
Provisions of the Bill
The Bill contains 7 Parts.
PART I
PRELIMINARY
Part I contains general provisions such as the short title, commencement and interpretation
provisions.
PART II
ESTABLISHMENT OF THE STATE ASSETS RECOVERY AGENCY
Draft, 25th July 2016
123
Part II makes provision for the establishment of SARA and its Director as a corporation sole,
the appointment of a Director, Deputy Director and staff of SARA, and the terms and
conditions of their appointment. This part contains provisions (in the Schedule to section 5) on
how the SARA will be financed, through a budget approved by the National Assembly, and
its transparency obligations by requiring the Director to provide a detailed annual plan and
annual report both of which must be laid before the National Assembly. In addition, SARA
staff are all required to comply with the Code of Conduct prescribed in Schedule 2 of the
Integrity Commission Act.
Sections 6 and 7 set out the respective functions of SARA and its Director. SARA’s functions
include the investigation, tracing and identification of State property suspected to be the
proceeds of unlawful conduct of a public official or other person, or any benefit, directly or
indirectly, acquired in connection with that unlawful conduct, and to institute High Court
proceedings for the civil recovery of that property. SARA is enabled to seek the recovery of
such property wherever in the world that property may be located, and must also raise public
awareness on the dangers of corruption and other crime.
As part of the need to maintain and upkeep public confidence in the criminal justice system
the Director must, before undertaking civil recovery proceedings, consider whether the
recovery of State property will be better secured by criminal proceedings (section 7). The
Director and named members of SARA staff may exercise the powers of police, customs and
immigration officers if so designated by the relevant Ministers, upon the Director’s request
(section 9). The Director is under a duty to ensure training in the operation of the Act is
available to professionals and to ensure relevant staff are trained and accredited in financial
investigation (section 10). Mutual cooperation between the Director of Public Prosecutions
and Director of the Financial Intelligence Unit is a requirement, and the Commissioner of
Police must provide such assistance as is requested by the Director. The Director may enter
into binding memoranda of understanding with other Government or Public bodies, and is able
to collaborate with any State organ, foreign government or international or regional
organization, in the recovery of State property (section 11).
Draft, 25th July 2016
124
PART III
ESTABLISHMENT OF THE RECOVERY OF STATE ASSETS FUND
Part III contains provisions for the establishment of a Recovery of State Assets fund, into which
25% of the value of recovered property will be credited, with the remaining 75% credited to
the Consolidated Fund. This Fund is intended to make the SARA partially self-funding. The
Director is thus authorized to use the funds to commence actions under the Act, to make certain
payments e.g. to pay experts to assist him in carrying out SARA functions, to fund training and
capacity building or to compensate victims who suffered loss as a result of unlawful conduct.
PART IV
CIVIL RECOVERY AND PRESERVATION OF STATE PROPERTY OBTAINED
THROUGH UNLAWFUL CONDUCT
Part IV of the Bill contains provisions under which the Director may undertake a civil recovery
investigation; seeks the preservation of property; sets out the circumstances in which
disclosures of information may be made to, and by, the Director; and the procedure for
commencing civil recovery actions in relation to property obtained through unlawful conduct.
Conduct is unlawful if it amounts to an offence under any of the laws of Guyana, or if
committed overseas would amount to an offence there and under the laws of Guyana. The
Court decides on the balance of probabilities whether unlawful conduct has occurred (section
16). A civil recovery investigation is an investigation into whether property was obtained by
or in connection with unlawful conduct (section 19), and to facilitate the investigation the
Director may apply to the Court for the issuance of one or more of the following orders, namely: a Disclosure Order, Customer Information Order, Production Order, Search and
Seizure Warrant or an Account Monitoring Order, all of which are available under Part V of
the Bill (section 20). However, the Director will cease to have access to those powers when
proceedings for a recovery order commences in relation to the property in question or where a
restraint order applies to the property. A criminal sanction is imposed for any unlawful breach
of an investigatory order which prejudices the investigation (section 21).
Draft, 25th July 2016
125
Section 22 makes provision for any person to make a disclosure to the Director, if made for
the purposes of SARA functions. Section 23 contains a list permitted persons who are obligated
to disclose information upon request by, and to, the Director. It is a criminal offence to threaten,
intimidate or assault any person who makes a disclosure to the Director (section 24)
Where the Director considers that there is a risk that property may be dissipated, destroyed or
removed from the jurisdiction, he will be able to apply to the High Court, without notice, for a
restraint order (section 27). For the order to be granted under this section, the Director must
satisfy the court that there are reasonable grounds to believe the property identified in the
application has been obtained through unlawful conduct. A person claiming an interest in the
property can apply to the Court to have the order varied or discharged on grounds set out in
section 30 or may, under section 33, apply for living and legal expenses on being able to show
there are no other available means. The court may make any ancillary order it considers
appropriate, including ordering the holder of property subject to restraint to provide additional
information, on oath, in relation to the property restrained and any other property in which that
person has an interest (section 36). Where the restraint order is granted the court may, to ensure
its effective management, place the property under the control of an Asset Manager who may
be appointed by the court, or on application by the Director (section 40).
An application for civil recovery may be made against any person believed to be holding or
have held recoverable property (section 41). A civil recovery order can be made in relation to
property subject to a restraint order or to any other property, however, if during the recovery
proceedings a person establishes lawful ownership of the property concerned, the property may
not be recovered; nor will property be recoverable from persons who are able to prove that
they purchased it for full value, in good faith without notice of its unlawful origins, thereby
protecting third parties able to claim an interest in the property (section 42).
The main stage of the procedure is a hearing before the High Court, commenced as a civil
action by summons supported by sworn evidence (section 43). The Director must serve the
summons on the person whom he believes holds the recoverable property and, unless the court
dispenses with service, on any other person holding property the Director wishes to include in
Draft, 25th July 2016
126
the recovery action. The burden of proof is on the Director. If the Court finds, on the civil
standard of the balance of probabilities, that the property was obtained through unlawful
conduct, it will give judgment in favour of the Director. Judgment will take the form of a
recovery order which vests the title to the property in the State (section 45). The Court may
adjourn the proceedings if it considers it is the interest of justice to do so (section 46).
The Director has capacity to agree a reduced sum in satisfaction of a civil recovery claim
(section 49). The Director should satisfy himself that the sum is reasonable, having regard to
all relevant circumstances including the chances of recovering the full amount claimed and the
time and public funds likely to be expended in attempting to do so.
Where the Director, for any reason, decides civil recovery proceedings are not appropriate he
may assume the tax collection functions of the Commissioner-General in relation to a person’s
income, profits or chargeable gains where there are reasonable grounds to suspect that they
arise from that person or another person’s unlawful conduct. However, before doing so the
Director must serve an appropriate Notice to that effect on the Commissioner-General. The
notice does not divest the Commissioner-General of the assumed tax function but he must
cooperate with the Director (section 52).
In addition to third party protections already referred to above, the Bill contains other
safeguards to ensure fairness in civil recovery proceedings. Accordingly, parties are permitted
the same rights of appeal as in other High Court actions; victims of theft are granted protection
(section 48); if an application for civil recovery is unsuccessful, the court will be able to award
compensation for any financial loss suffered by the respondent as a result of the restraint order
applying to his property (section 51); there is a financial threshold of ten million Guyana
dollars below which civil recovery may not be pursued; there is a 12-year limitation period on
when civil recovery proceedings can be brought (section 53); and the Court has an overriding
discretion not to make a civil recovery order if satisfied there would be a serious risk of
injustice in doing so.
PART V
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127
ORDERS TO ASSIST INVESTIGATION
Part V sets out in detail the five Orders available to the Director when undertaking a civil
recovery investigation. These are: (i) disclosure orders (section 59) which empowers an
authorized officer to give notice in writing to any person requiring him or her to answer
questions, to provide information or to produce documents with respect to any matter relevant
to the investigation in relation to which the order is sought; (ii) customer information orders
(section 66) which compels a financial institution covered by the application to provide any
customer information it has relating to the person specified in the application on receipt of a
written notice from an authorized officer asking for that information; (iii) production orders
(section 74) which may be served on any person or institution, for example a financial
institution, requiring the production of, or allowing access to, material within the time specified
in the order; this might include documents such as bank statements. The production order may
include an order to grant entry entitling the authorized officer to be granted entry to the
premises and allowed access to the material. It does not include the power to search the
premises; (iv) search and seizure warrants (section 81) which enables an authorized to person
enter and search the premises specified in the application for the warrant, and seize and retain
any material found there. A search and seizure warrant may be granted if a production order
already made has not been complied with and there are reasonable grounds for believing that
the required material is on the premises specified in the application for the warrant; and (v)
account monitoring orders (section 87) which requires a specified financial institution to
provide account information on a specified account for a specified period, up to 90 days in the
manner and at, or by, the times specified in the order. Account information is information
relating to an account held at a financial institution. This would most commonly be transaction
details.
In respect of each order or warrant to be granted, there is a statutory requirement that there
must be reasonable grounds for believing that the material or information is likely to be of
substantial value (whether or not by itself) to the investigation, and that it is in the public
interest that the material or information is obtained or accessed. The authorized officer must
therefore be satisfied that the material or information will enhance the investigation, and that
Draft, 25th July 2016
128
the public interest in obtaining the order outweighs the disadvantages to the person against
whom the order is being made.
Part VI
INTERNATIONAL COOPERATION
Part VI contains provisions covering the nature and availability of legal assistance
arrangements that may be concluded between Guyana and a foreign state or territory, in
relation to matters concerning civil recovery. Thus the Minister of Legal Affairs may enter into
reciprocal recovered property sharing agreements (section 93); the Director may enter into
agreements to collect and share information with a relevant foreign authority (section 94); the
Court or Director in acting upon a foreign request for assistance may take any action including
where appropriate, a civil recovery investigation, restraint and civil recovery proceedings
(section 95). The Director may make a direct request for overseas assistance, or may issue a
letter of request, if he believes that there is relevant evidence in a country or territory outside
Guyana. The request may be sent to any authority recognized by the Government of the country
or territory concerned as being appropriate for receiving requests, or the court or tribunal
specified within the request. Alternatively, a request may be sent through the Central Authority
which should forward the request to the court, tribunal, Government or authority in the country
or territory concerned. (section 99). The Director may also initiate proceedings in a foreign
country to recover property he believes to be proceeds of any unlawful conduct (section 100),
but in both cases the Director must inform the Minister of Legal Affairs and Minister of Foreign
Affairs in writing of the request for assistance or of the institution of proceedings (section 101).
This is designed to ensure the relevant Ministers are kept fully informed and to avoid the risk
of a diplomatic incident being caused inadvertently.
Evidence obtained by means of a request for assistance cannot be used for any purpose other
than for the purposes of the investigation for which it was obtained. However, the court,
Draft, 25th July 2016
129
tribunal, government or authority that received the request and provided the evidence can
consent to the use of the evidence for other purposes.
PART VII
MISCELLANEOUS
Part VII contains provisions granting immunity to the Director, SARA staff, any person acting
on behalf of SARA, an Asset Manager or any person appointed by the Court for any act done
in good faith in the intended performance of any duty under the Act (section 103); provisions
providing protection for SARA staff making it a criminal offence punishable by imprisonment
for, among other actions, threatening a member of SARA staff or a member of their family
(section 104); transitional arrangements are to the effect that existing members of staff of
SARU automatically become members of staff of SARA on the coming into force of the State
Assets Recovery Act, and within six months thereof the Parliamentary Committee on
appointments must recommend to the National Assembly a person to be appointed as Director
of SARA (section 105). Section (106) enables the Minister to make Regulations for the
carrying out of the provisions of the Act and imposes a criminal sanction for a breach of those
Regulations.
…….………………………………………………
Hon. Basil Williams, LLB (Hons), MP
Attorney General and
Minister of Legal Affairs

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