C7C8C3C2C9C4C6C10C5C1C11Part 2Confiscation: England and Wales

Annotations:
Modifications etc. (not altering text)
C4

Pt. 2: power to modify conferred (20.3.2015) by Crime and Courts Act 2013 (c. 22), ss. 47, 61(2); S.I. 2015/813, art. 2(b)

C10

Pt. 2 applied (12.2.2019 for specified purposes, 13.8.2020 in so far as not already in force) by Counter-Terrorism and Border Security Act 2019 (c. 3), s. 27(1)(g), Sch. 3 para. 33(5) (with s. 25(9)); S.I. 2020/792, reg. 2(g)

F26Enforcement: money, cryptoassets and personal property

Annotations:
Amendments (Textual)
F26

S. 67 cross-heading substituted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 16; S.I. 2024/269, reg. 4(a)

I1C7C867C7C8F24Money

1

This section applies to money which—

a

is held by a person, and

b

is held in an account maintained by him with a F27relevant financial institution.

2

This section also applies to money which is held by a person and which—

F5a

has been seized under a relevant seizure power by a constable or another person lawfully exercising the power, and

b

is being detained in connection with a criminal investigation or prosecution or with an investigation of a kind mentioned in section 341.

F122A

But this section applies to money only so far as the money is free property.

F153

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F95

If—

a

a confiscation order is made against a person holding money to which this section applies, and

b

a receiver has not been appointed under section 50 in relation to the money,

a magistrates' court may order the F1appropriate person to pay the money to the designated officer for the court on account of the amount payable under the confiscation order.

F85A

F2Where this section applies to money which is held in an account maintained with F19a relevant financial institution, a person applying for an order under subsection (5) must give notice of the application to F20the relevant financial institution with which the account is held.

5B

In the case of money held in an account not maintained by the person against whom the confiscation order is made, a magistrates' court—

a

may make an order under subsection (5) only if the extent of the person's interest in the money has been determined under section 10A, and

b

must have regard to that determination in deciding what is the appropriate order to make.

6

If a F18relevant financial institution fails to comply with an order under subsection (5)—

a

the magistrates’ court may order it to pay an amount not exceeding £5,000, and

b

for the purposes of the Magistrates’ Courts Act 1980 (c. 43) the sum is to be treated as adjudged to be paid by a conviction of the court.

7

In order to take account of changes in the value of money the Secretary of State may by order substitute another sum for the sum for the time being specified in subsection (6)(a).

F117A

The Secretary of State may by order amend this section so that it applies F3by virtue of subsection (1) not only to money held in an account maintained with a F21relevant financial institution but also to—

a

money held in an account maintained with a financial institution of a specified kind, or

b

money that is represented by, or may be obtained from, a financial instrument or product of a specified kind.

7B

An order under subsection (7A) may amend this section so that it makes provision about realising an instrument or product within subsection (7A)(b) or otherwise obtaining money from it.

F48

In this section—

  • “appropriate person” means—

    1. a

      in a case where the money is held in an account maintained with a F22a relevant financial institution, the relevant financial institution;

    2. b

      in any other case, the person on whose authority the money is detained;

  • “bank” means an authorised deposit-taker, other than a building society, that has its head office or a branch in the United Kingdom;

  • “building society” has the same meaning as in the Building Societies Act 1986;

  • F23“electronic money institution” has the same meaning as in the Electronic Money Regulations 2011 (S.I. 2011/99) (see regulation 2 of those Regulations);

  • F23“payment institution” means an authorised payment institution or a small payment institution (each as defined in regulation 2 of the Payment Services Regulations 2017 (S.I. 2017/752));

  • F23“relevant financial institution” means a bank, a building society, an electronic money institution or a payment institution;

  • “relevant seizure power” means a power to seize money conferred by or by virtue of—

    1. a

      a warrant granted under any enactment or rule of law, or

    2. b

      any enactment, or rule of law, under which the authority of a warrant is not required.

F69

In the definition of “bank” in subsection (8), “authorised deposit-taker” means—

a

a person who has permission under Part 4A of the Financial Services and Markets Act 2000 to accept deposits;

b

a person who—

i

is specified, or is within a class of persons specified, by an order under section 38 of that Act (exemption orders), and

ii

accepts deposits;

F10c

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10

A reference in subsection (9) to a person F13... with permission to accept deposits does not include a person F13... with permission to do so only for the purposes of, or in the course of, an activity other than accepting deposits.

67ZAF16Cryptoassets

1

This section applies to cryptoassets which—

a

are held by a person, and

b

are held in a crypto wallet administered by a UK-connected cryptoasset service provider,

but only so far as the cryptoassets are free property.

2

Subsection (3) applies if—

a

a confiscation order is made against a person holding cryptoassets to which this section applies, and

b

a receiver has not been appointed under section 50 in relation to the cryptoassets.

3

A magistrates’ court may order the UK-connected cryptoasset service provider which administers the crypto wallet in which the cryptoassets are held—

a

to realise the cryptoassets, or a portion of the cryptoassets having a specified value,

b

to pay the proceeds of that realisation to the designated officer for the court on account of, and up to a maximum of, the amount payable under the confiscation order, and

c

to the extent that the proceeds of the realisation exceed the amount payable under the confiscation order, to pay the excess to an appropriate officer identified in the order.

“Appropriate officer” has the same meaning as in section 41A.

4

A person applying for an order under subsection (3) must give notice of the application to the UK-connected cryptoasset service provider.

5

Where the crypto wallet in which the cryptoassets are held is administered on behalf of someone other than the person against whom the confiscation order is made, a magistrates’ court—

a

may make an order under subsection (3) only if the extent of the person’s interest in the money has been determined under section 10A, and

b

must have regard to that determination in deciding what is the appropriate order to make.

6

If a UK-connected cryptoasset service provider fails to comply with an order under subsection (3)—

a

the magistrates’ court may order it to pay an amount not exceeding £5,000, and

b

for the purposes of the Magistrates’ Courts Act 1980 the sum is to be treated as adjudged to be paid by a conviction of the court.

7

In order to take account of changes in the value of money the Secretary of State may by order substitute another sum for the sum for the time being specified in subsection (6)(a).

8

Where a UK-connected cryptoasset service provider—

a

is required by an order under subsection (3) to realise a portion of cryptoassets having a specified value, but

b

on realising cryptoassets under the order, obtains proceeds of an amount which differs from that value,

it does not fail to comply with the order solely because of that difference in value, provided that it took reasonable steps to obtain proceeds equal to the value specified.

67ZBMeaning of “UK-connected cryptoasset service provider”

1

“UK-connected cryptoasset service provider” in section 67ZA means a cryptoasset service provider which—

a

is acting in the course of business carried on by it in the United Kingdom,

b

has terms and conditions with the persons to whom it provides services which provide for a legal dispute to be litigated in the courts of a part of the United Kingdom,

c

holds in the United Kingdom any data relating to the persons to whom it provides services, or

d

meets the condition in subsection (2).

2

The condition in this subsection is that—

a

the cryptoasset service provider has its registered office or, if it does not have one, its head office in the United Kingdom, and

b

the day-to-day management of the provider’s business is the responsibility of that office or another establishment maintained by it in the United Kingdom.

3

“Cryptoasset service provider” in subsections (1) and (2) includes a cryptoasset exchange provider and a custodian wallet provider; and for this purpose—

  • “cryptoasset exchange provider” means a firm or sole practitioner who by way of business provides one or more of the following services, including where the firm or sole practitioner does so as creator or issuer of any of the cryptoassets involved—

    1. a

      exchanging, or arranging or making arrangements with a view to the exchange of, cryptoassets for money or money for cryptoassets;

    2. b

      exchanging, or arranging or making arrangements with a view to the exchange of, one cryptoasset for another;

    3. c

      operating a machine which utilises automated processes to exchange cryptoassets for money or money for cryptoassets;

  • “custodian wallet provider” means a firm or sole practitioner who by way of business provides services to safeguard, or to safeguard and administer—

    1. a

      cryptoassets on behalf of its customers, or

    2. b

      private cryptographic keys on behalf of its customers in order to hold, store and transfer cryptoassets.

4

In the definition of “cryptoasset exchange provider” in subsection (3), “cryptoasset” includes a right to, or interest in, a cryptoasset.

5

The Secretary of State may by regulations amend the definitions in subsection (3) (including by amending subsection (4)).

67AF7Seized personal property

1

This section applies to personal property which is held by a person and which—

a

has been seized by an appropriate officer under a relevant seizure power, or

b

has been produced to an appropriate officer in compliance with a production order under section 345.

F143

If—

a

a confiscation order is made against the person by whom the property is held, and

b

a receiver has not been appointed under section 50 in relation to the property,

a magistrates' court may by order authorise an appropriate officer to realise the property.

4

In this section “appropriate officer” and “relevant seizure power” have the same meaning as in section 41A.

67AAF17Destruction of seized cryptoassets

1

This section applies to cryptoassets which are held by a person and which have been seized by an appropriate officer under a relevant seizure power.

2

A magistrates’ court may by order authorise an appropriate officer to destroy the cryptoassets if—

a

a confiscation order is made against the person by whom the cryptoassets are held,

b

a receiver has not been appointed under section 50 in relation to the cryptoassets, and

c

either—

i

it is not reasonably practicable to realise the cryptoassets, or

ii

there are reasonable grounds to believe that the realisation of the cryptoassets would be contrary to the public interest, having regard in particular to how likely it is that the entry of the cryptoassets into general circulation would facilitate criminal conduct by any person.

3

An order under this section—

a

must set out the court’s assessment of the market value of the cryptoassets to which it relates;

b

may authorise the destruction of cryptoassets only to the extent that their market value, as set out in the order, is less than or equal to the amount remaining to be paid under the confiscation order.

4

Before making an order under this section, the court must give persons who hold interests in the cryptoassets a reasonable opportunity to make representations to it.

5

If cryptoassets held by a person are destroyed following an order under this section, the person is to be treated as having paid, towards satisfaction of the confiscation order, an amount equal to the market value, as set out in the order, of the cryptoassets which have been destroyed.

6

In this section “appropriate officer” and “relevant seizure power” have the same meaning as in section 41A.

67BCosts of storage and realisation

1

This section applies if a magistrates' court makes an order under section 67A.

2

The court may determine an amount which may be recovered by the appropriate officer in respect of reasonable costs incurred in—

a

storing or insuring the property since it was seized or produced as mentioned in subsection (1) of that section;

b

realising the property.

3

If the court makes a determination under this section the appropriate officer is entitled to payment of the amount under section 55(4).

4

A determination under this section may be made on the same occasion as the section 67A order or on any later occasion; and more than one determination may be made in relation to any case.

5

In this section “appropriate officer” has the same meaning as in section 41A.

67CSections F2567ZA to 67B: appeals

1

If a magistrates' court decides not to make an order under section F2867ZA(3), 67A(3) or 67AA(2), an appropriate officer may appeal to the Crown Court.

2

If a magistrates' court makes an order under section F2967ZA(3), 67A(3) or 67AA(2), a person affected by the order may appeal to the Crown Court.

3

But the person mentioned in section F3067ZA(2)(a), 67A(3)(a) or 67AA(2)(a) (as applicable) may not appeal.

4

An appropriate officer may appeal to the Crown Court against—

a

a determination made by a magistrates' court under section 67B;

b

a decision by a magistrates' court not to make a determination under that section.

5

In this section “appropriate officer” has the same meaning as in section 41A.

67DProceeds of realisation

1

This section applies to sums which—

a

are in the hands of an appropriate officer, and

b

are the proceeds of the realisation of property under section F3167ZA or 67A.

2

The sums must be applied as follows—

a

first, they must be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under this subsection by virtue of section 432;

b

second, they must be applied in making any payments directed by the magistrates' court or the Crown Court;

c

third, they must be paid to the appropriate designated officer on account of the amount payable under the confiscation order.

3

If the amount payable under the confiscation order has been fully paid and any sums remain in the appropriate officer's hands, the appropriate officer must distribute them—

a

among such persons who held (or hold) interests in the property represented by the proceeds as the magistrates' court or the Crown Court directs, and

b

in such proportions as it directs.

4

Before making a direction under subsection (3) the court must give persons who held (or hold) interests in the property a reasonable opportunity to make representations to it.

5

If the magistrates' court has made a direction under subsection (2)(b) or (3) in respect of the proceeds of realisation of any property, the Crown Court may not make a direction under either of those provisions in respect of the proceeds of realisation of that property; and vice versa.

6

In this section—

  • “appropriate officer” has the same meaning as in section 41A;

  • “appropriate designated officer” means the designated officer for the magistrates' court which, by virtue of section 35, is responsible for enforcing the confiscation order as if it were a fine.