Part I Confiscation orders
Introductory
F221 Meaning of “drug trafficking” and “drug trafficking offence”.
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Confiscation orders
F222 Confiscation orders.
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F223 Postponed determinations.
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F224 Assessing the proceeds of drug trafficking.
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F225 Amount to be recovered under confiscation order.
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F226 Meaning of “amount that might be realised” and “realisable property”.
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F227 Value of property etc.
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F228 Gifts caught by this Act.
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F229 Application of procedure for enforcing fines.
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F2210 Interest on sums unpaid under confiscation orders.
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Statements etc in connection with confiscation orders
F22E111 Statements relating to drug trafficking.
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F2212 Provision of information by defendant.
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Further proceedings in connection with confiscation orders
F2213 Reconsideration of case where court has not proceeded under section 2.
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F2214 Re-assessment of whether defendant has benefited from drug trafficking.
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F2215 Revised assessment of proceeds of drug trafficking.
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F2216 Increase in realisable property.
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F2217 Inadequacy of realisable property.
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F2218 Compensation.
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Confiscation orders where defendant has absconded or died
F2219 Powers of High Court where defendant has absconded or died.
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F2220 Effect of conviction where High Court has acted under section 19.
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F2221 Variation of confiscation orders made by virtue of section 19.
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F2222 Compensation etc where absconder is acquitted.
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F2223 Power to discharge confiscation order and order compensation where absconder returns.
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F2224 Provisions supplementary to sections 21, 22 and 23.
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Restraint orders and charging orders
F2225 Cases in which restraint orders and charging orders may be made.
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F2226 Restraint orders.
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F2227 Charging orders in respect of land, securities etc.
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F2228 Charging orders: supplementary provisions.
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Realisation of property
F2229 Realisation of property.
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F2230 Application of proceeds of realisation and other sums.
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Exercise of powers for the realisation of property
F2231 Exercise by High Court, county court or receiver of powers for the realisation of property.
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Insolvency of defendants etc
F2232 Bankruptcy of defendant etc.
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F2233 Sequestration in Scotland of defendant etc.
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F2234 Winding up of company holding realisable property.
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Protection for insolvency officers etc
F2235 Insolvency officers dealing with property subject to restraint order.
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F2236 Receivers: supplementary provisions.
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Enforcement of orders made outside England and Wales
F2237 Recognition and enforcement of orders and functions under Part I of the Criminal Justice (Scotland) Act 1987.
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F2238 Enforcement of Northern Ireland orders.
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39 Enforcement of external confiscation orders.
F221
Her Majesty may by Order in Council—
a
direct in relation to a country or territory outside the United Kingdom designated by the Order (a “designated country”) that, subject to such modifications as may be specified, the relevant provisions of this Act shall apply to external confiscation orders and to proceedings which have been or are to be instituted in the designated country and may result in an external confiscation order being made there;
b
make—
i
such provision in connection with the taking of action in the designated country with a view to satisfying a confiscation order,
ii
such provision as to evidence or proof of any matter for the purposes of this section and section 40 of this Act, and
iii
such incidental, consequential and transitional provision,
as appears to Her Majesty to be expedient; and
c
(without prejudice to the generality of this subsection) direct that, in such circumstances as may be specified, proceeds which arise out of action taken in the designated country with a view to satisfying a confiscation order shall be treated as reducing the amount payable under the order to such extent as may be specified.
2
In this section “external confiscation order” means an order made by a court in a designated country for the purpose of recovering, or recovering the value of, payments or other rewards received in connection with drug trafficking.
3
An Order in Council under this section may make different provision for different cases or classes of case.
4
The power to make an Order in Council under this section includes power to modify the relevant provisions of this Act in such a way as to confer power on a person to exercise a discretion.
5
An Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.
6
For the purposes of this section, “the relevant provisions of this Act” are this Part, except sections 10 and 16, and Part IV.
40 Registration of external confiscation orders.
F221
On an application made by or on behalf of the Government of a designated country, the High Court may register an external confiscation order made there if—
a
it is satisfied that at the time of registration the order is in force and not subject to appeal;
b
it is satisfied, where the person against whom the order is made 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 England and Wales would not be contrary to the interests of justice.
2
In subsection (1) above “appeal” includes—
a
any proceedings by way of discharging or setting aside a judgment; and
b
an application for a new trial or a stay of execution.
3
The High Court shall cancel the registration of an external confiscation order if it appears to the court that the order has been satisfied by payment of the amount due under it.
4
In this section “designated country” and “external confiscation order” have the same meaning as in section 39 of this Act.
Interpretation
F2241 Interpretation of Part I.
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Part II Drug trafficking money imported or exported in cash
42 Seizure and detention.
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43 Forfeiture.
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44 Appeal against forfeiture order made by a magistrates’ court.
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45 Appeal against forfeiture order made by sheriff.
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46 Rules of court.
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47 Receipts.
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48 Interpretation of Part II.
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Part III Offences in connection with proceeds of drug trafficking
F2249 Concealing or transferring proceeds of drug trafficking.
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F2250 Assisting another person to retain the benefit of drug trafficking.
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F2251 Acquisition, possession or use of proceeds of drug trafficking.
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F2252 Failure to disclose knowledge or suspicion of money laundering.
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F2253 Tipping-off.
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F2254 Penalties.
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C15 Part IV Miscellaneous and supplemental
Investigations into drug trafficking
C155 Order to make material available.
1
A constable may, for the purpose of an investigation into drug trafficking, apply to a Circuit judge for an order under subsection (2) below in relation to particular material or material of a particular description.
2
If on such an application the judge is satisfied that the conditions in subsection (4) below are fulfilled, he may make an order that the person who appears to him to be in possession of the material to which the application relates shall—
a
produce it to a constable for him to take away, or
b
give a constable access to it,
within such period as the order may specify.
This subsection has effect subject to section 59(11) of this Act.
3
The period to be specified in an order under subsection (2) above shall be seven days unless it appears to the judge that a longer or shorter period would be appropriate in the particular circumstances of the application.
4
The conditions referred to in subsection (2) above are—
a
that there are reasonable grounds for suspecting that a specified person has carried on F9... drug trafficking;
b
that there are reasonable grounds for suspecting that the material to which the application relates—
i
is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the application is made; and
ii
does not consist of or include items subject to legal privilege or excluded material; and
c
that there are reasonable grounds for believing that it is in the public interest, having regard—
i
to the benefit likely to accrue to the investigation if the material is obtained, and
ii
to the circumstances under which the person in possession of the material holds it,
that the material should be produced or that access to it should be given.
5
Where the judge makes an order under subsection (2)(b) above in relation to material on any premises he may, on the application of a constable, order any person who appears to him to be entitled to grant entry to the premises to allow a constable to enter the premises to obtain access to the material.
6
An application under subsection (1) or (5) above may be made ex parte to a judge in chambers.
7
Provision may be made by F31Criminal Procedure Rules as to—
a
the discharge and variation of orders under this section; and
b
proceedings relating to such orders.
8
An order of a Circuit judge under this section shall have effect as if it were an order of the Crown Court.
9
Where the material to which an application under subsection (1) above relates consists of information contained in a computer—
a
an order under subsection (2)(a) above shall have effect as an order to produce the material in a form in which it can be taken away and in which it is visible and legible; and
b
an order under subsection (2)(b) above shall have effect as an order to give access to the material in a form in which it is visible and legible.
10
An order under subsection (2) above—
a
shall not confer any right to production of, or access to, items subject to legal privilege or excluded material;
b
shall have effect notwithstanding any obligation as to secrecy or other restriction upon the disclosure of information imposed by statute or otherwise; and
c
may be made in relation to material in the possession of an authorised government department;
and in this subsection “authorised government department” means a government department which is an authorised department for the purposes of the Crown M1 Proceedings Act 1947.
C256 Authority for search.
1
A constable may, for the purpose of an investigation into drug trafficking, apply to a Circuit judge for a warrant under this section in relation to specified premises.
2
On such application the judge may issue a warrant authorising a constable to enter and search the premises if the judge is satisfied—
a
that an order made under section 55 of this Act in relation to material on the premises has not been complied with;
b
that the conditions in subsection (3) below are fulfilled; or
c
that the conditions in subsection (4) below are fulfilled.
3
The conditions referred to in subsection (2)(b) above are—
a
that there are reasonable grounds for suspecting that a specified person has carried on F10... drug trafficking;
b
that the conditions in subsection (4)(b) and (c) of section 55 of this Act are fulfilled in relation to any material on the premises; and
c
that it would not be appropriate to make an order under that section in relation to the material because—
i
it is not practicable to communicate with any person entitled to produce the material;
ii
it is not practicable to communicate with any person entitled to grant access to the material or entitled to grant entry to the premises on which the material is situated; or
iii
the investigation for the purpose of which the application is made might be seriously prejudiced unless a constable could secure immediate access to the material.
4
The conditions referred to in subsection (2)(c) above are—
a
that there are reasonable grounds for suspecting that a specified person has carried on F11... drug trafficking;
b
that there are reasonable grounds for suspecting that there is on the premises material relating to the specified person or to drug trafficking which is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the application is made, but that the material cannot at the time of the application be particularised; and
c
that—
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; or
iii
the investigation for the purpose of which the application is made might be seriously prejudiced unless a constable arriving at the premises could secure immediate entry to them.
C3C16C175
Where a constable has entered premises in the execution of a warrant issued under this section, he may seize and retain any material, other than items subject to legal privilege and excluded material, which is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the warrant was issued.
C457 Provisions supplementary to sections 55 and 56.
1
For the purposes of sections 21 and 22 of the Police M2and Criminal Evidence Act 1984 (access to, and copying and retention of, seized material)—
a
an investigation into drug trafficking shall be treated as if it were an investigation of or in connection with an offence; and
b
material produced in pursuance of an order under section 55(2)(a) of this Act shall be treated as if it were material seized by a constable.
2
In sections 55 and 56 of this Act “excluded material”, “items subject to legal privilege” and “premises” have the same meaning as in the 1984 Act.
C558 Offence of prejudicing investigation.
1
Where, in relation to an investigation into drug trafficking—
a
an order under section 55 of this Act has been made or has been applied for and has not been refused, or
b
a warrant under section 56 of this Act has been issued,
a person is guilty of an offence if, knowing or suspecting that the investigation is taking place, he makes any disclosure which is likely to prejudice the investigation.
2
In proceedings against a person for an offence under this section, it is a defence to prove—
a
that he did not know or suspect that the disclosure was likely to prejudice the investigation; or
b
that he had lawful authority or reasonable excuse for making the disclosure.
3
Nothing in subsection (1) above makes it an offence for a professional legal adviser to disclose any information or other matter—
a
to, or to a representative of, a client of his in connection with the giving by the adviser of legal advice to the client; or
b
to any person—
i
in contemplation of, or in connection with, legal proceedings; and
ii
for the purpose of those proceedings.
4
Subsection (3) above does not apply in relation to any information or other matter which is disclosed with a view to furthering any criminal purpose.
5
A person guilty of an offence under this section shall be liable—
a
on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both; and
b
on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine or to both.
C6E259 Disclosure of information held by government departments.
F141
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F142
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F143
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F144
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F145
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F146
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F147
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F148
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F149
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F1410
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11
F13... in the case of material in the possession of an authorised government department, an order under section 55(2) of this Act may require any officer of the department (whether named in the order or not) who may for the time being be in possession of the material concerned to comply with it, and such an order shall be served as if the proceedings were civil proceedings against the department.
12
The person on whom such an order is served—
a
shall take all reasonable steps to bring it to the attention of the officer concerned; and
b
if the order is not brought to that officer’s attention within the period F12specified in an order under section 55(2), shall report the reasons for the failure to the court;
and it shall also be the duty of any other officer of the department in receipt of the order to take such steps as are mentioned in paragraph (a) above.
13
In this section “authorised government department” means a government department which is an authorised department for the purposes of the Crown M3 Proceedings Act 1947.
59AF8Construction of sections 55 to 59
1
This section has effect for the purposes of sections 55 to 59.
2
A reference to a constable includes a reference to a customs officer.
3
A customs officer is a person commissioned by the Commissioners of Customs and Excise under section 6(3) of the Customs and Excise Management Act 1979 (c. 2).
4
Drug trafficking means doing or being concerned in any of the following (whether in England and Wales or elsewhere)—
a
producing or supplying a controlled drug where the production or supply contravenes section 4(1) of the Misuse of Drugs Act 1971 or a corresponding law;
b
transporting or storing a controlled drug where possession of the drug contravenes section 5(1) of that Act or a corresponding law;
c
importing or exporting a controlled drug where the importation or exportation is prohibited by section 3(1) of that Act or a corresponding law;
d
manufacturing or supplying a scheduled substance within the meaning of section 12 of the Criminal Justice (International Co-operation) Act 1990 where the manufacture or supply is an offence under that section or would be such an offence if it took place in England and Wales;
e
using any ship for illicit traffic in controlled drugs in circumstances which amount to the commission of an offence under section 19 of that Act.
5
In this section “corresponding law” has the same meaning as in the Misuse of Drugs Act 1971.
Prosecution of offences etc
C760F32Revenue and Customs prosecutions
1
2
F363
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4
Where the Commissioners investigate, or propose to investigate, any matter with a view to determining—
a
whether there are grounds for believing that a specified offence has been committed, or
b
whether a person should be prosecuted for a specified offence,
that matter shall be treated as an assigned matter within the meaning of the Customs M4 and Excise Management Act 1979.
5
Nothing in this section shall be taken—
a
to prevent any person (including any officer) who has power to arrest, detain or prosecute any person for a specified offence from doing so; or
b
to prevent a court from proceeding to deal with a person brought before it following his arrest by an officer for a specified offence, even though the proceedings have not been instituted F37in accordance with this section.
C186
F186A
Proceedings for an offence are instituted—
a
when a justice of the peace issues a summons or warrant under section 1 of the Magistrates’ Courts Act 1980 (issue of summons to, or warrant for arrest of, accused) in respect of the offence;
b
when a person is charged with the offence after being taken into custody without a warrant;
c
when a bill of indictment is preferred under section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 in a case falling within paragraph (b) of subsection (2) of that section (preferment by direction of the criminal division of the Court of Appeal or by direction, or with the consent, of a High Court judge).
6B
Where the application of subsection (6A) would result in there being more than one time for the institution of proceedings they must be taken to have been instituted at the earliest of those times.
F217
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F218
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C861 Extension of certain offences to Crown servants and exemptions for regulators etc.
1
The Secretary of State may by regulations provide that, in such circumstances as may be prescribed, F15section 58 of this Act shall apply to such persons in the public service of the Crown, or such categories of person in that service, as may be prescribed.
F162
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F163
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F164
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5
In this section—
“the Crown” includes the Crown in right of Her Majesty’s Government in Northern Ireland; and
“prescribed” means prescribed by regulations made by the Secretary of State.
6
Any power to make regulations under this section shall be exercisable by statutory instrument.
7
Any such instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament.
Interpretation of Act
F2362 Meaning of “property” and related expressions.
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C963 General interpretation.
F241
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F242
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3
Subject to section 66(2) and (6) of this Act—
F25a
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b
any reference in this Act to “drug trafficking” includes a reference to drug trafficking carried out before the commencement of this Act.
F2664 Index of defined expressions.
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Supplemental
C10E365 Consequential amendments and modifications of other Acts.
1
The enactments mentioned in Schedule 1 to this Act shall have effect subject to the amendments there specified (being amendments consequential upon the provisions of this Act).
2
In section 1(2)(a) of the Rehabilitation M5 of Offenders Act 1974 (failure to pay fines etc. not to prevent person becoming rehabilitated) the reference to a fine or other sum adjudged to be paid by or imposed on a conviction does not include a reference to an amount payable under a confiscation order.
3
Section 281(4) of the Insolvency M6 Act 1986 (discharge of bankrupt not to release him from liabilities in respect of fines, etc.) shall have effect as if the reference to a fine included a reference to a confiscation order.
F404
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C1166 Transitional provisions and savings.
1
The transitional provisions and savings set out in Schedule 2 to this Act shall have effect.
2
Part I and section 59 of this Act shall not apply—
a
in relation to any proceedings for, or in respect of, an offence if the person accused (or, as the case may be, convicted) of that offence was charged with the offence (whether by the laying of an information or otherwise) before the date on which this Act comes into force, or
b
in relation to any proceedings not within paragraph (a) above instituted before that date,
and references in this subsection to proceedings include a reference to any order made by a court in the proceedings.
3
Accordingly (and without prejudice to section 16 of the Interpretation M7 Act 1978), the relevant enactments and any instrument made under any of those enactments shall continue to apply in relation to any proceedings within subsection (2)(a) or (b) above (and, in particular, in relation to any confiscation order, within the meaning of the Drug M8 Trafficking Offences Act 1986, made in any such proceedings) as if this Act had not been passed.
4
In subsection (3) above “the relevant enactments” are—
a
the enactments reproduced in Part I and section 59 of this Act,
b
any other enactment reproduced by this Act, so far as applicable in relation to any of the enactments reproduced in that Part or that section, and
c
any enactment amended by this Act,
but do not include any enactment which, immediately before the date on which this Act comes into force, had not come into force.
5
Subsection (2) above is without prejudice to section 4(7), 7(4), 26(3) or 29(7) of this Act.
6
Nothing in section 19(3) or (4) of this Act shall apply to any proceedings—
a
for an offence committed before the commencement of this Act; or
b
for one or more offences, any one of which was so committed.
C12E467 Repeals etc.
1
The enactments mentioned in Schedule 3 to this Act are repealed to the extent specified in the third column of that Schedule.
2
C1368 Extent.
1
Subject to the following provisions of this section, this Act extends to England and Wales only.
2
The following provisions of this Act also extend to Scotland—
F30a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F30b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F30c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
d
section F1759(11) to (13);
e
this section;
f
section 69;
g
h
Schedule 2.
3
The following provisions of this Act also extend to Northern Ireland—
F27a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
this section;
c
section 69;
d
sections 63, F28..., 65(1), 66 and 67(1), so far as they relate to provisions which extend to Northern Ireland; and
e
Schedule 2.
4
Section 67(2) of this Act extends to Northern Ireland only.
5
The modifications of other enactments specified in section 65(2) to (4) of this Act, and the amendments specified in Schedule 1 to this Act, have the same extent as the enactments to which they relate.
6
Subject to subsection (7) below, the repeals contained in Schedule 3 to this Act have the same extent as the provisions to which they relate.
7
The repeals of—
a
sections 14 and 23A of the Criminal M11 Justice (International Co-operation) Act 1990, and
b
paragraph 5 of Schedule 4 to the Criminal M12 Justice Act 1993,
extend to England and Wales only.
C1469 Short title and commencement.
1
This Act may be cited as the Drug Trafficking Act 1994..
2
This Act comes into force at the end of the period of three months beginning with the day on which it is passed.
Part IV (ss. 55-69) applied with modifications (1.1.1997) by S.I. 1996/2880, arts. 3-6, Schs. 1-3 (as amended by S.I. 1997/2980, arts. 2-5, Sch.)