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135. Unexplained wealth orders

(1) A judge in Chambers may, on the application of the Recovery Authority, where he is satisfied that each of the requirements set out in section 136 is fulfilled, make an order requiring a person (“the respondent”) to provide a statement

setting out the nature and extent of the respondent's interest in the property in respect of which the order is made;
explaining how the respondent obtained the property, including, in particular, how any costs incurred in obtaining the property were met; and
setting out such other information in connection with the property as may be so specified.

(2) An application for an unexplained wealth order

shall
(i) specify or describe the property in respect of which the order is sought; and
(ii) specify the person whom the Recovery Authority thinks holds the property, and the person specified may include a person outside Barbados; and

may be made without notice.


136. Requirements for making of unexplained wealth order

(1) The requirements referred to in section 135(1) are that

there are reasonable grounds for suspecting that
(i) the respondent holds the property;
(ii) the value of the property is more than such amount as may be prescribed by the Minister by Order; and
(iii) the known sources of the respondent’s lawfully obtained income would have been insufficient for the purposes of enabling the respondent to obtain the property; and
the respondent is a politically exposed person; or
there are reasonable grounds for suspecting that
(i) the respondent is, or has been, involved in unlawful conduct, whether in Barbados or elsewhere; or
(ii) a person connected with the respondent is, or has been, so involved.

(2) It does not matter for the purposes of subsection (1)(a)(i)

whether or not there are other persons who also hold the property;
whether the property was obtained by the respondent before or after the commencement date.

(3) For the purposes of subsection (1)(a)(iii)

regard is to be had to any mortgage, charge or other kind of security that it is reasonable to assume was or may have been available to the respondent for the purposes of obtaining the property;
it is to be assumed that the respondent obtained the property for a price equivalent to its market value;
income is “lawfully obtained” where it is obtained lawfully under the laws of the country from where the income arises;
“known” sources of the respondent’s income are the sources of income, whether arising from employment, assets or otherwise, that are reasonably ascertainable from information available at the time of the making of the application for the order.

(4) In subsection (1)(b), “politically exposed person” means

an individual who is, or has been entrusted with a prominent public function within Barbados or by an international organisation or a country other than Barbados;
a family member of a person referred to in paragraph (a);
a person known to be a close associate of a person referred to in paragraph (a);
a person otherwise connected with a person referred to in paragraph (a).

(5) Where the property in respect of which an unexplained wealth order is sought comprises more than one item of property, the reference in subsection (1)(a)(ii) to the value of the property is to the total value of those items.

137. Effect of unexplained wealth order in cases of non-compliance

(1) Where the respondent fails, without reasonable excuse, to comply with the requirements imposed by an unexplained wealth order in respect of any property before the end of the response period, the property shall be presumed to be recoverable property for the purposes of any proceedings taken in respect of the property under Part III, unless the contrary is shown.

(2) The presumption in subsection (1) applies in relation to property

only so far as relating to the respondent’s interest in the property; and
only where the value of that interest is more than such amount as maybe prescribed under section 136(1)(a)(ii).

(3) It is for the court hearing the proceedings under Part III in relation to which reliance is placed on the presumption to determine the matters in subsection (2).

(4) The “response period” is such period as the judge may specify undersection 135(4) as the period within which the requirements imposed by the order are to be complied with, or the period ending the latest, where more than one is specified in respect of different requirements.

(5) For the purposes of subsection (1)

subject to section 138, a respondent who purports to comply with the requirements imposed by an unexplained wealth order is not to be taken to have failed to comply with the order;
where an unexplained wealth order imposes more than one requirement on a respondent, the respondent shall be taken to have failed to comply with the requirements imposed by the order unless each of the requirements is complied with or is purported to be complied with.

(6) Where an unexplained wealth order is made in respect of property comprising more than one item of property, the reference in subsection (2)(b) to the value of the respondent’s interest in the property is to the total value of the respondent’s interest in those items.

138. Effect of unexplained wealth order in cases of compliance or purported compliance

(1) This section applies where, before the end of the response period (as defined by section 137(4)), the respondent complies, or purports to comply, with the requirements imposed by an unexplained wealth order in respect of any property in relation to which the order is made.

(2) Where a freezing order made under section 139 has effect in relation to the property, the Recovery Authority shall determine what enforcement or investigatory proceedings, if any, it considers ought to be taken in relation to the property.

(3) A determination under subsection (2) shall be made within the period of 60 days starting with the date of compliance.

(4) Where the determination under subsection (2) is that no further enforcement or investigatory proceedings ought to be taken in relation to the property, the Recovery Authority shall notify the court of that fact as soon as reasonably practicable, and in any event, before the end of the period of 60 days mentioned in subsection (3).

(5) Where no freezing order is in effect in relation to the property, the Recovery Authority may, at any time, determine what, if any, enforcement or investigatory proceedings it considers ought to be taken in relation to the property.

(6) A determination under this section to take no further enforcement or investigatory proceedings in relation to any property does not prevent such proceedings being taken subsequently, whether as a result of new information or otherwise, in relation to the property.

(7) For the purposes of this section

the respondent complies with the requirements imposed by an unexplained wealth order only if all of the requirements are complied with;
references to the date of compliance are to the day on which the requirements imposed by the order are complied with, or, where the requirements are complied with over more than one day, the last of those days; and
where an order requires the sending of information in writing to, or the production of documents at, an address specified in the order, compliance with the order, so far as it relates to that requirement, occurs when the written information is received, or the documents are produced, at that address,

and in paragraphs (a) to (c) references to compliance include purported compliance.

(8) In this section “enforcement or investigatory proceedings” means any proceedings in relation to property taken under this Part or Part II or III.


Type: Other Relevant Laws

Last update on LEARN: Thursday, 3 March 2022, 1:00 PM