Proceeds of Crime Act 2002 (c. 29)

Part 4 N.I. Confiscation: Northern Ireland

Modifications etc. (not altering text)

C1 Pt. 4 functions of receiver extended (24.2.2003) by Proceeds of Crime Act 2002 (Enforcement in different parts of the United Kingdom) Order 2002 (S.I. 2002/3133), arts. 1, 4(1)(a)

C2 Pt. 4 applied by S.I. 1989/1341 (N.I. 12), arts. 57(5B), 59(8B) (as substituted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), Supreme Court s. 458(1), Sch. 11 para. 19(2)(3); S.I. 2003/333, art. 2, Sch.)

C3 Pt. 4: power to amend conferred (1.7.2005) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 97(3), 178(8); S.I. 2005/1521, art. 3(1)(a)

C4 Pt. 4 applied (3.12.2014) by The Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014 (S.I. 2014/3141), reg. 1(b), Sch. 2 para. 11(5)

C5 Pt. 4 applied (3.12.2014) by The Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014 (S.I. 2014/3141), reg. 1(b), Sch. 2 para. 6(5)

Restraint orders N.I.

189 Conditions for exercise of powers N.I.

(1) The High Court may exercise the powers conferred by section 190 if any of the following conditions is satisfied.

(2) The first condition is that—

(a) a criminal investigation has been started in Northern Ireland with regard to an offence, and

(b) there [F1 are reasonable grounds to suspect] that the alleged offender has benefited from his criminal conduct.

(3) The second condition is that—

(a) proceedings for an offence have been started in Northern Ireland and not concluded,

(b) there is reasonable cause to believe that the defendant has benefited from his criminal conduct.

(4) The third condition is that—

(a) an application by the prosecutor F2 ... has been made under section 169, 170, 177 or 178 and not concluded, or the court believes that such an application is to be made, and

(b) there is reasonable cause to believe that the defendant has benefited from his criminal conduct.

(5) The fourth condition is that—

(a) an application by the prosecutor F3 ... has been made under section 171 and not concluded, or the court believes that such an application is to be made, and

(b) there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the defendant’s benefit exceeds the relevant amount (as defined in that section).

(6) The fifth condition is that—

(a) an application by the prosecutor F4 ... has been made under section 172 and not concluded, or the court believes that such an application is to be made, and

(b) there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the available amount exceeds the relevant amount (as defined in that section).

(7) The second condition is not satisfied if the court believes that—

(a) there has been undue delay in continuing the proceedings, or

(b) the prosecutor does not intend to proceed.

(8) If an application mentioned in the third, fourth or fifth condition has been made the condition is not satisfied if the court believes that—

(a) there has been undue delay in continuing the application, or

(b) the prosecutor F5 ... does not intend to proceed.

(9) If the first condition is satisfied—

(a) references in this Part to the defendant are to the alleged offender;

(b) references in this Part to the prosecutor are to the person the court believes is to have conduct of any proceedings for the offence;

(c) section 225(9) has effect as if proceedings for the offence had been started against the defendant when the investigation was started.

Textual Amendments

F1 Words in s. 189(2)(b) substituted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 33(1), 88(3)(a); S.R. 2015/190, reg. 3(1)(g)

F2 Words in s. 189(4)(a) repealed (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 55(2), Sch. 14; S.I. 2008/755, art. 2(1)(a)(d) (with arts. 3-14)

F3 Words in s. 189(5)(a) repealed (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 55(3), Sch. 14; S.I. 2008/755, art. 2(1)(a)(d) (with arts. 3-14)

F4 Words in s. 189(6)(a) repealed (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 55(4), Sch. 14; S.I. 2008/755, art. 2(1)(a)(d) (with arts. 3-14)

F5 Words in s. 189(8)(b) repealed (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 55(5), Sch. 14; S.I. 2008/755, art. 2(1)(a)(d) (with arts. 3-14)

Commencement Information

I1 S. 189 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

190 Restraint orders N.I.

(1) If any condition set out in section 189 is satisfied the High Court may make an order (a restraint order) prohibiting any specified person from dealing with any realisable property held by him.

(2) A restraint order may provide that it applies—

(a) to all realisable property held by the specified person whether or not the property is described in the order;

(b) to realisable property transferred to the specified person after the order is made.

(3) A restraint order may be made subject to exceptions, and an exception may in particular—

(a) make provision for reasonable living expenses and reasonable legal expenses;

(b) make provision for the purpose of enabling any person to carry on any trade, business, profession or occupation;

(c) be made subject to conditions.

(4) But an exception to a restraint order may not make provision for any legal expenses which—

(a) relate to an offence which falls within subsection (5), and

(b) are incurred by the defendant or by a recipient of a tainted gift.

(5) These offences fall within this subsection—

(a) the offence mentioned in section 189(2) or (3), if the first or second condition (as the case may be) is satisfied;

(b) the offence (or any of the offences) concerned, if the third, fourth or fifth condition is satisfied.

(6) Subsection (7) applies if—

(a) the court makes a restraint order, and

(b) the applicant for the order applies to the court to proceed under subsection (7) (whether as part of the application for the restraint order or at any time afterwards).

(7) The court may make such order as it believes is appropriate for the purpose of ensuring that the restraint order is effective.

[F6 (7A) Subsections (7B) and (7C) apply where the High Court makes a restraint order (by virtue of the first condition in section 189) as a result of a criminal investigation having been started in Northern Ireland with regard to an offence.

(7B) The court—

(a) must include in the order a requirement for the applicant for the order to report to the court on the progress of the investigation at such times and in such manner as the order may specify (a “reporting requirement”), and

(b) must discharge the order if proceedings for the offence are not started within a reasonable time (and this duty applies whether or not an application to discharge the order is made under section 191(3)).

(7C) The duty under subsection (7B)(a) does not apply if the court decides that, in the circumstances of the case, a reporting requirement should not be imposed, but the court—

(a) must give reasons for its decision, and

(b) may at any time vary the order so as to include a reporting requirement (and this power applies whether or not an application to vary the order is made under section 191(3)).]

[F7 (7D) In considering whether to make an order under subsection (7), the court must, in particular, consider whether any restriction or prohibition on the defendant's travel outside the United Kingdom ought to be imposed for the purpose mentioned in that subsection.]

(8) A restraint order does not affect property for the time being subject to a charge under any of these provisions—

(a) section 9 of the Drug Trafficking Offences Act 1986 (c. 32);

(b) section 78 of the Criminal Justice Act 1988 (c. 33);

(c) Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));

(d) section 27 of the Drug Trafficking Act 1994 (c. 37);

(e) Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

(9) Dealing with property includes removing it from Northern Ireland.

Textual Amendments

F6 S. 190(7A)-(7C) inserted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 33(2), 88(3)(a); S.R. 2015/190, reg. 3(1)(g)

F7 S. 190(7D) inserted (1.6.2015) by Serious Crime Act 2015 (c. 9), s. 88(3)(b), Sch. 4 para. 50; S.R. 2015/190, reg. 3(2)(b)

Commencement Information

I2 S. 190 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch. (with arts. 6, 10-13)

[F8 190A Restraint orders: power to retain seized property N.I.

(1) A restraint order may include provision authorising the detention of any property to which it applies if the property—

(a) is seized by an appropriate officer under a relevant seizure power, or

(b) is produced to an appropriate officer in compliance with a production order under section 345.

(2) Provision under subsection (1) may, in particular—

(a) relate to specified property, to property of a specified description or to all property to which the restraint order applies;

(b) relate to property that has already been seized or produced or to property that may be seized or produced in future.

(3) “Appropriate officer” means—

(a) an accredited financial investigator;

(b) a constable;

(c) an officer of Revenue and Customs;

[F9 (ca) an immigration officer;]

[F10 (d) a National Crime Agency officer;]

(e) a member of staff of the relevant director (within the meaning of section 352(5A)).

(4) “Relevant seizure power” means a power to seize property conferred by or by virtue of—

(a) section 195C,

(b) section 352, or

(c) Part 3 or 4 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (including as applied by order under Article 85(1) of that Order).

(5) The Secretary of State may by order amend the definition of “relevant seizure power”.]

Textual Amendments

F8 S. 190A inserted (1.3.2016) by Policing and Crime Act 2009 (c. 26), ss. 54(2), 116(1); S.I. 2016/147, art. 3(a) (with art. 4)

F9 S. 190A(3)(ca) inserted (22.11.2014) by Crime and Courts Act 2013 (c. 22), Sch. 21 para. 24 (with Sch. 21 para. 40); S.I. 2014/3098, art. 2(e)

F10 S. 190A(3)(d) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 117; S.I. 2013/1682, art. 3(v)

191 Application, discharge and variation N.I.

(1) A restraint order—

(a) may be made only on an application by an applicant falling within subsection (2);

(b) may be made on an ex parte application to a judge in chambers.

(2) These applicants fall within this subsection—

(a) the prosecutor;

F11 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) an accredited financial investigator.

(3) An application to discharge or vary a restraint order or an order under section 190(7) may be made to the High Court by—

(a) the person who applied for the order;

(b) any person affected by the order.

(4) Subsections (5) to [F12 (8)] apply to an application under subsection (3).

(5) The court—

(a) may discharge the order;

(b) may vary the order.

(6) If the condition in section 189 which was satisfied was that proceedings were started or an application was made, the court must discharge the order on the conclusion of the proceedings or of the application (as the case may be).

[F13 (6A) The duty in subsection (6) to discharge a restraint order on the conclusion of proceedings does not apply where—

(a) the proceedings are concluded by reason of a defendant's conviction for an offence being quashed,

(b) the order is in force at the time when the conviction is quashed, and

(c) the Court of Appeal has ordered the defendant to be retried for the offence or the prosecutor has applied for such an order to be made.

(6B) But the court must discharge the restraint order—

(a) if the Court of Appeal declines to make an order for the defendant to be retried,

(b) if the Court of Appeal orders the defendant to be retried but proceedings for the retrial are not started within a reasonable time, or

(c) otherwise, on the conclusion of proceedings for the retrial of the defendant.]

[F14 (7) If the condition in section 189 which was satisfied was that an investigation was started—

(a) the court must discharge the order if within a reasonable time proceedings for the offence are not started;

(b) otherwise, the court must discharge the order on the conclusion of the proceedings.

(8) If the condition in section 189 which was satisfied was that an application was to be made—

(a) the court must discharge the order if within a reasonable time the application is not made;

(b) otherwise, the court must discharge the order on the conclusion of the application.]

Textual Amendments

F11 S. 191(2)(b) repealed (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 56, Sch. 14; S.I. 2008/755, art. 2(1)(a)(d) (with arts. 3-14)

F12 Word in s. 191(4) substituted (1.6.2015) by Serious Crime Act 2015 (c. 9), s. 88(3)(b), Sch. 4 para. 51(2); S.R. 2015/190, reg. 3(2)(b)

F13 S. 191(6A)(6B) inserted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 34, 88(3)(a); S.R. 2015/190, reg. 3(1)(h)

F14 S. 191(7)(8) substituted for s. 191(7) (1.6.2015) by Serious Crime Act 2015 (c. 9), s. 88(3)(b), Sch. 4 para. 51(3); S.R. 2015/190, reg. 3(2)(b)

Commencement Information

I3 S. 191 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

192 Appeal to Court of Appeal N.I.

(1) If on an application for a restraint order the court decides not to make one, the person who applied for the order may appeal to the Court of Appeal against the decision.

(2) If an application is made under section 191(3) in relation to a restraint order or an order under section 190(7) the following persons may appeal to the Court of Appeal in respect of the High Court’s decision on the application—

(a) the person who applied for the order;

(b) any person affected by the order.

(3) On an appeal under subsection (1) or (2) the Court of Appeal may—

(a) confirm the decision, or

(b) make such order as it believes is appropriate.

Commencement Information

I4 S. 192 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

193 Appeal to [F15 Supreme Court] N.I.

(1) An appeal lies to the [F16 Supreme Court] from a decision of the Court of Appeal on an appeal under section 192.

(2) An appeal under this section lies at the instance of any person who was a party to the proceedings before the Court of Appeal.

(3) On an appeal under this section the [F17 Supreme Court] may—

(a) confirm the decision of the Court of Appeal, or

(b) make such order as it believes is appropriate.

Textual Amendments

F15 Words in s. 193 sidenote substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), s. 148(1), Sch. 9 para. 77(7); S.I. 2009/1604, art. 2(d)

F16 Words in s. 193(1) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), s. 148(1), Sch. 9 para. 77(7); S.I. 2009/1604, art. 2(d)

F17 Words in s. 193(3) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), s. 148(1), Sch. 9 para. 77(7); S.I. 2009/1604, art. 2(d)

Commencement Information

I5 S. 193 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

[F18 193A Detention of property pending appeal N.I.

(1) This section applies where—

(a) a restraint order includes provision under section 190A authorising the detention of property, and

(b) the restraint order is discharged under section 191(5) or 192(3)(b).

(2) This section also applies where—

(a) a restraint order includes provision under section 190A authorising the detention of property, and

(b) the restraint order is varied under section 191(5) or 192(3)(b) so as to omit any such provision.

(3) The property may be detained until there is no further possibility of an appeal against—

(a) the decision to discharge or vary the restraint order, or

(b) any decision made on an appeal against that decision.]

Textual Amendments

F18 S. 193A inserted (1.3.2016) by Policing and Crime Act 2009 (c. 26), ss. 54(3), 116(1); S.I. 2016/147, art. 3(a) (with art. 4)

F19 194 Seizure N.I.

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

Textual Amendments

F19 S. 194 repealed (1.3.2016) by Policing and Crime Act 2009 (c. 26), ss. 57(3), 116(1), Sch. 8 Pt. 4; S.I. 2016/147, art. 3(b)(k) (with art. 4)

195 Supplementary N.I.

(1) The person applying for a restraint order must be treated for the purposes of section 66 of the Land Registration Act (Northern Ireland) 1970 (c. 18 (N.I.)) (cautions) as a person interested in relation to any registered land to which—

(a) the application relates, or

(b) a restraint order made in pursuance of the application relates.

(2) Upon being served with a copy of a restraint order, the Registrar shall, in respect of any registered land to which a restraint order or an application for a restraint order relates, make an entry inhibiting any dealing with the land without the consent of the High Court.

(3) Subsections (2) and (4) of section 67 of the Land Registration Act (Northern Ireland) 1970 (inhibitions) shall apply to an entry made under subsection (2) as they apply to an entry made on the application of any person interested in the registered land under subsection (1) of that section.

(4) Where a restraint order has been protected by an entry registered under the Land Registration Act (Northern Ireland) 1970 or the Registration of Deeds Acts, an order discharging the restraint order may require that the entry be vacated.

(5) In this section—

• “Registrar” and “entry” have the same meanings as in the Land Registration Act (Northern Ireland) 1970; and

• “Registration of Deeds Acts” has the meaning given by section 46(2) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)).

Modifications etc. (not altering text)

C6 S. 195 applied (24.2.2003) by Proceeds of Crime Act 2002 (Enforcement in different parts of the United Kingdom) Order 2002 (S.I. 2002/3133), arts. 1, 17(1)

Commencement Information

I6 S. 195 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.