The Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014

CHAPTER 5 Notification, communication etc., and application to saved orders

Notification, communication etc.

18.—(1) Where proceedings are started in relation to an overseas restraint order or an overseas confiscation order—

(a) the relevant court must notify the relevant authority; and

(b) the relevant authority must notify the court or authority which made or confirmed the overseas restraint order or the overseas confiscation order (as the case may be).

(2) Where the relevant court makes a relevant decision, the relevant authority must communicate that decision with reasons to the court or authority which made or confirmed the overseas restraint order or the overseas confiscation order to which the decision relates as soon as reasonably practicable.

(3) Where an overseas confiscation order provides for the confiscation of one or more specified items of property from the subject of the order, the relevant authority must seek the consent of the court or authority which made or confirmed the overseas confiscation order to replace such provision with a requirement that the subject of the order pay a sum of money equivalent to the value of any such specified items of property.

(4) Where an overseas confiscation order provides for the confiscation of a sum of money, the relevant authority must—

(a) seek the consent of the court or authority which made or confirmed the overseas confiscation order to convert the amount provided into the currency of that member State; and

(b) where consent is granted, arrange for such conversion at a rate of exchange that was available on the date that the overseas confiscation order was issued.

(5) Where the amount obtained in relation to an overseas confiscation order is greater than or equal to an amount equivalent to 10,000 Euros, the relevant authority must transfer to the court or authority which made or confirmed the order 50% of the amount obtained, unless otherwise agreed with that court or authority.

(6) Where a domestic confiscation order certified in accordance with regulation 11, paragraph 7 of Schedule 1 or paragraph 7 of Schedule 2 ceases to have effect or has been part satisfied, the relevant authority must notify any court or authority to whom the order has been sent in accordance with regulation 12, paragraph 8 of Schedule 1 or paragraph 8 of Schedule 2 (as the case may be) as soon as reasonably practicable.

(7) Where, in the opinion of the relevant authority, giving effect to a domestic confiscation order certified in accordance with regulation 11, paragraph 7 of Schedule 1 or paragraph 7 of Schedule 2 may lead to more than the amount specified in that order being confiscated, the relevant authority must notify any court or authority to whom the order has been sent in accordance with regulation 12, paragraph 8 of Schedule 1 or paragraph 8 of Schedule 2 (as the case may be) as soon as reasonably practicable.

(8) In this regulation—

“overseas restraint order” and “overseas confiscation order” have the meanings given in regulations 8 and 13, paragraphs 4 and 9 of Schedule 1 or paragraphs 4 and 9 of Schedule 2 (as the case may be);

“relevant authority” means—

(a)

in England and Wales—

(i)

for the purposes of paragraphs (1) to (5), the “relevant prosecutor”, as defined in regulation 5; and

(ii)

for the purposes of paragraphs (6) and (7), the prosecutor;

(b)

in Scotland, the Lord Advocate;

(c)

in Northern Ireland, the “relevant prosecutor”, as defined in paragraph 1 of Schedule 2;

“relevant court” means—

(a)

in England and Wales, the Crown Court;

(b)

in Scotland, the “court”, as defined in paragraph 1 of Schedule 1;

(c)

in Northern Ireland, the “court”, as defined in paragraph 1 of Schedule 2;

“relevant decision” means—

(a)

a decision to give effect to, or to not give effect to, an overseas restraint order,

(b)

a decision to postpone giving effect to an overseas restraint order, or to end any such postponement,

(c)

a decision to discharge (or in Scotland, to recall) an overseas restraint order,

(d)

a decision to consider an appeal against, or an application to discharge (or in Scotland, to recall) or vary an overseas restraint order,

(e)

a decision not to recognise or give effect to, or to give limited effect to, an overseas confiscation order,

(f)

a decision to postpone giving effect to an overseas confiscation order, or to end any such postponement, or

(g)

a decision to consider an appeal against, or an application to discharge or vary an overseas confiscation order.

England and Wales

Saved restraint orders

19.—(1) Chapter 2 of this Part applies in relation to a saved order under—

(a) section 77 of the Criminal Justice Act 1988(1) (restraint orders), or

(b) section 26 of the Drug Trafficking Act 1994(2) (restraint orders),

as it applies in relation to a restraint order under section 41 of the 2002 Act (restraint orders).

(2) Accordingly, a reference in Chapter 2 of this Part to a domestic restraint order includes a reference to a saved order of either of those kinds.

(3) A reference in this regulation to a saved order is a reference to an order as it continues to have effect by virtue of articles 5 and 10 of the Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, Savings and Amendment) Order 2003(3) (transitional provision and savings: England and Wales).

Saved confiscation orders

20.—(1) Chapter 2 of this Part applies to a saved order under—

(a) section 71 of the Criminal Justice Act 1988(4) (confiscation orders), or

(b) section 2 of the Drug Trafficking Act 1994(5) (confiscation orders),

as it applies to an order under section 6 of the 2002 Act (making of order).

(2) Accordingly, a reference in Chapter 2 of this Part to a domestic confiscation order includes a reference to a saved order of either of those kinds.

(3) A reference in this regulation to a saved order is a reference to an order as it continues to have effect by virtue of articles 3 and 10 of the Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, Savings and Amendment) Order 2003 (transitional provision and savings: England and Wales).

Scotland

Saved restraint orders

21.—(1) Schedule 1 applies in relation to a saved order under section 28 of the 1995 Act (6) (restraint orders) as it applies in relation to a restraint order under section 120 of the 2002 Act (restraint orders).

(2) Accordingly, a reference in Schedule 1 to a domestic restraint order includes a reference to a saved order under section 28 of the 1995 Act.

(3) A reference in this regulation to a saved order is a reference to an order as it continues to have effect by virtue of articles 4 and 7 of the Proceeds of Crime Act 2002 (Commencement No. 6, Transitional Provisions and Savings) (Scotland) Order 2003(7) (transitional provision and savings).

Saved confiscation orders

22.—(1) Schedule 1 applies to a saved order under section 1 of the 1995 Act (8) (confiscation orders) as it applies in relation to a confiscation order under section 92 of the 2002 Act.

(2) Accordingly, a reference in Schedule 1 to a domestic confiscation order includes a reference to a saved order under section 1 of the 1995 Act.

(3) A reference in this regulation to a saved order is a reference to an order as it continues to have effect by virtue of articles 3 and 7 of the Proceeds of Crime Act 2002 (Commencement No. 6, Transitional Provisions and Savings) (Scotland) Order 2003 (transitional provision and savings).

Northern Ireland

Saved restraint orders

23.—(1) Schedule 2 applies in relation to a saved order under article 31 of the Proceeds of Crime (Northern Ireland) Order 1996(9) (restraint orders) as it applies in relation to a restraint order under section 190 of the 2002 Act (restraint orders).

(2) Accordingly, a reference in Schedule 2 to a domestic restraint order includes a reference to a saved order under article 31 of the 1996 Order.

(3) A reference in this regulation to a saved order is a reference to an order as it continues to have effect by virtue of articles 6 and 10 of the Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, Savings and Amendment) Order 2003 (transitional provision and savings: Northern Ireland).

Saved confiscation orders

24.—(1) Schedule 2 applies to a saved order under article 8 of the Proceeds of Crime (Northern Ireland) Order 1996(10) (confiscation orders) as it applies to an order under section 156 of the 2002 Act.

(2) Accordingly, a reference in Schedule 2 to a domestic confiscation order includes a reference to a saved order under article 8 of the 1996 Order.

(3) A reference in this regulation to a saved order is a reference to an order as it continues to have effect by virtue of articles 4 and 10 of the Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, Savings and Amendment) Order 2003 (transitional provision and savings: Northern Ireland).

(1)

1988 c. 33; section 77 was repealed by sections 456 and 457 of, and paragraphs 1 and 17 of Schedule 11 and Schedule 12 to, the Proceeds of Crime Act 2002.

(2)

1994 c. 37; section 26 was repealed by sections 456 and 457 of, and paragraphs 1 and 25 of Schedule 11 and Schedule 12 to, the Proceeds of Crime Act 2002.

(3)

S.I. 2003/333 (C. 20).

(4)

Section 71 was repealed by sections 456 and 457 of, and paragraphs 1 and 17 of Schedule 11 and Schedule 12 to, the Proceeds of Crime Act 2002.

(5)

Section 2 was repealed by sections 456 and 457 of, and paragraphs 1 and 25 of Schedule 11 and Schedule 12 to, the Proceeds of Crime Act 2002.

(6)

Section 28 has been amended by sections 456 and 457 of, and paragraphs 1 and 28 of Schedule 11 and Schedule 12 to, the Proceeds of Crime Act 2002.

(7)

S.S.I. 2003/210.

(8)

Section 1 was repealed by sections 456 and 457 of, and paragraphs 1 and 28 of Schedule 11 and Schedule 12 to, the Proceeds of Crime Act 2002.

(9)

S.I. 1996/1299 (N.I. 9); Article 31 was revoked by sections 456 and 457 of, and paragraphs 1 and 31 of Schedule 11 and Schedule 12 to, the Proceeds of Crime Act 2002.

(10)

Article 8 was revoked by sections 456 and 457 of, and paragraphs 1 and 31 of Schedule 11 and Schedule 12 to, the Proceeds of Crime Act 2002.