Cap. 621 Art. 35Attachment Order. 

(1) Where the Attorney General has reasonable cause to believe that a person (hereinafter referred to as "the suspect") is guilty of a relevant offence, he may apply to the Criminal Court for an order

(hereinafter referred to as an "Attachment Order"):

(a) attaching in the hands of such persons, or in the hands of third parties having custody of the property of such persons, as are mentioned in the application (hereinafter referred to as "the garnishees") all moneys or other movable property due to or pertaining to the suspect or used by the suspect;

(b) requiring the garnishees to declare in writing to the Attorney General and the Director, not later than twenty-four (24) hours from the time of service of the order, the nature and source of all moneys and other movable property so attached; and

(c) prohibiting the suspect from transferring or otherwise disposing of any movable or immovable property.

(2) Before making an Attachment Order, the Criminal Court may require to hear the Attorney General in chambers and shall not make such an Order unless it concurs with him that there is a reasonable cause as provided in sub-article (1).

(3) The provisions of article 381(1)(a), (b), (e) and (2) and article 382(1) of the Code of Organization and Civil Procedure shall mutatis mutandis apply to the Attachment Order whether issued under this Act or under any other law in Part One of the Schedule.

(4) (a) An Attachment Order shall be served on the garnishees and on the suspect by an officer of the Executive Police.

(b) An Attachment Order may also be served on the garnishees by electronic mail. Where it is so served, the garnishee shall, not later than one (1) working day from such service, acknowledge receipt by return electronic mail, and in default of such acknowledgement, a copy of the Order shall, without prejudice to the validity of the service by electronic means, be served on the garnishee by an officer of the Executive Police.

(c) Unless the Criminal Court otherwise directs, an Attachment Order shall be served without prior notice to the garnishee.

(5) An Attachment Order shall, unless it is revoked earlier by the Attorney General by notice in writing served on the suspect and the garnishee, cease to be operative on the expiration of six (6) months from the date it is made, and the Criminal Court shall not make another Attachment Order with respect to the suspect unless it is satisfied that there is substantially new information with regard to the relative relevant offence.

(5A) The provisions of sub-articles (5) and (6) of article 36 shall apply to an Attachment Order. mutatis mutandis

(5B) When an Attachment Order is withdrawn by the Attorney General prior to the expiration of its period of validity or no longer remains in force for any other reason including the lapse of its period of validity, the Criminal Court shall issue a decree confirming that the Attachment Order has been revoked or is no longer in force and it shall order the service of the said decree upon the suspect and all the garnishees and all those served with the Attachment Order in the manner as provided for in sub-article (4).

(6) Where during the period of validity of an Attachment Order, whether original or extended, the suspect absconds or is for any other reason away from the island, the period of time during which the suspect is away from the island shall be added to the period of validity of the Attachment Order in respect of the said suspect.

(7) Where the Attorney General applies for the issue of an Attachment Order as provided in sub-article (1), he may request the Court issuing the Order to authorise the Director to accompany the person serving the Attachment Order on the suspect, and upon the service of the Order on the suspect the Director shall have the right, to enter, accompanied by an officer of the Executive Police into any house, building or other enclosure or board any craft or enter any vehicle, belonging to or used by the suspect, or wherein it is suspected that the suspect may have property or other assets constituting property subject to confiscation, and thereat make a record of any material that may constitute such property. The Director may for such purpose have such material photographed, weighed, measured and valued by experts.

(8) The Director may moreover remove and take possession of any material referred to in the previous sub-article, and such material shall remain attached by the Order in the hand of the Director during the period of validity of the Attachment Order:

Provided that where the Director takes possession of any material as aforesaid he shall not later than one (1) week of taking such possession inform the Criminal Court of such taking of possession and request its authority to continue to keep possession of the material during the period of validity of the Attachment Order. The application of the Director shall be served on the suspect and on any person from whose possession the material was removed. The Criminal Court shall decide the application by decree, and where in its decree it refuses to grant the request of the Director, in whole or in part, the Director shall within a term of not more than one (1) week return the material to which the refusal refers, to the person from whose possession it was removed:

Provided further that any material to which the refusal refers, shall, unless the said court in its decree otherwise decides, remain subject to the Attachment Order referred to sub-article (1).

(9) Where the Attorney General in a request referred to in sub-article (7) omits to request that the Director accompanies the person serving the Attachment Order as therein provided, the Director may at any time during the subsistence of the Attachment Order request the Criminal Court to authorise him accompanied by an officer of the Executive Police to enter any house, building or enclosure or to board any craft or vehicle as is referred to in the said sub-article (7) and therein conduct the operations referred to in the said sub-article. The provisions of sub-article (8) shall also apply in the case of an entry by the Director authorised under this sub-article.

(10) (a) Where any material is attached in the hands of a garnishee in virtue of an Attachment Order issued in terms of this article, the Director may request the Criminal Court to order the garnishee to transfer all or any material attached in the hands of the garnishee, to the possession of the Director, within such time as the said court may in its decree prescribe, and upon such transfer such material shall remain subject to the Attachment Order in the hands of the Director.

(b) Failure by any person to abide by an Order issued under this sub-article shall constitute contempt of Court and shall be punishable as such by the Criminal Court:

Provided that any punishment that the said court may impose shall not release the person disobeying such Order from any liability for damages that his failure to comply with the Order may incur in favour of any persons.

(11) (a) Where a commercial going concern or a body corporate is subject to an Attachment Order, the totality of the assets of the going concern, including licences and goodwill are to be preserved and shall not be transferred, and subject to the following provisions of this sub-article the going concern or a body corporate shall continue to do business.

(b) Where a commercial going concern or a body corporate has been attached by an Attachment Order the Criminal

Court may on application made by the Director and after hearing the suspect, appoint an Administrator generally for the better preservation of the asset of the going concern or a body corporate and in particular to provide for its administration. The provision of article 848B of the

Code of Organization and Civil Procedure shall apply with regard to an application and the appointment of an administrator under this sub-article.

(c) The administrator appointed under this article shall have the right to such payment as the Criminal Court may, in its discretion, be of the opinion that is due to the administrator, which payment shall be effected from the moneys of the going concern or body corporate. In no event, however, may such payments be made from funds where there is knowledge or suspicion that the funds are derived from a criminal activity or are funds which one has cause to believe have been laundered:

Provided that in this paragraph, unless the context otherwise requires:

"criminal activity" shall have the same meaning as assigned to it in article 2 of the Prevention of Money Laundering Act;

"laundered" shall have the meaning of "money laundering" as defined in article 2 of the Prevention of Money Laundering Act.

(11A) An administrator appointed in accordance with sub-article

(11) shall:

(a) with immediate effect administer the commercial going concern or body corporate, and the ordinary administration of all business and activities including the management of any outlets, restaurants or other activities and shall acquire, sell, negotiate and effect all necessary acts of management and ordinary administration and to take all necessary measures for the preservation of the assets of the commercial going concern or body corporate;

(b) within one (1) month from the service of the appointment decree, prepare a report, confirmed on oath, indicating the commercial activity of the commercial going concern or body corporate including the assets and liabilities and the actual value of the commercial going concern or body corporate. Following the initial report, the administrator shall prepare and file monthly reports;

(c) submit every administration decision of an extraordinary nature for the decision of the court; and

(d) open and manage a bank account with a financial institution on behalf of such commercial going concern or body corporate.

(11B) When the court appoints an administrator in accordance with sub-article (11), a copy of this decree shall be immediately served on the Director and shall become operative and binding when it is made and the Director shall cause a notice thereof to be published without delay in the Gazette.

(12) Where the property subject to an Attachment Order is of a perishable nature, the person holding the property shall without further authorisation sell such property, and the Attachment Order shall continue to apply with respect to proceeds of such sale.

(13) The Director is bound to exercise for the safekeeping of any property subject to an Attachment Order, held in his possession, such care as is exercised by a bonus paterfamilias.

(14) The suspect or the person charged or accused may not contest the factual basis for the issuing of the order according to this article or article 36 at the time when the order is issued, except as provided in paragraph (ii) of sub-article (8) of article 36.