The Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005

PART 2 GIVING EFFECT IN ENGLAND AND WALES TO EXTERNAL REQUESTS IN CONNECTION WITH CRIMINAL INVESTIGATIONS OR PROCEEDINGS AND TO EXTERNAL ORDERS ARISING FROM SUCH PROCEEDINGS

CHAPTER 1 EXTERNAL REQUESTS

Action on receipt of external request in connection with criminal investigations or proceedings

6.—(1) Except where paragraph (2) applies, the Secretary of State may refer an external request in connection with criminal investigations or proceedings in the country from which the request was made and concerning relevant property in England or Wales to—

(a) the Director of the Agency;

(b) the Director of Public Prosecutions;

(c) the Director of Revenue and Customs Prosecutions,

to process it.

(2) This paragraph applies where it appears to the Secretary of State that the request—

(a) is made in connection with criminal investigations or proceedings which relate to an offence involving serious or complex fraud, and

(b) concerns relevant property in England or Wales.

(3) Where paragraph (2) applies, the Secretary of State may refer the request to the Director of the Serious Fraud Office to process it.

(4) In this Chapter “the relevant Director” means the Director to whom an external request is referred under paragraph (1) or (3).

(5) The relevant Director may ask the overseas authority which made the request for such further information as may be necessary to determine whether the request is likely to satisfy either of the conditions in article 7.

(6) A request under paragraph (5) may include a request for statements which may be used as evidence.

(7) Where a request concerns relevant property which is in Scotland or Northern Ireland as well as England or Wales, so much of the request as concerns such property shall be dealt with under Part 3 or 4, respectively.

Conditions for Crown Court to give effect to external request

7.—(1) The Crown Court may exercise the powers conferred by article 8 if either of the following conditions is satisfied.

(2) The first condition is that—

(a) relevant property in England and Wales is identified in the external request;

(b) a criminal investigation has been started in the country from which the external request was made with regard to an offence, and

(c) there is reasonable cause to believe that the alleged offender named in the request has benefited from his criminal conduct.

(3) The second condition is that—

(a) relevant property in England and Wales is identified in the external request;

(b) proceedings for an offence have been started in the country from which the external request was made and not concluded, and

(c) there is reasonable cause to believe that the defendant named in the request has benefited from his criminal conduct.

(4) In determining whether the conditions are satisfied and whether the request is an external request within the meaning of the Act, the Court must have regard to the definitions in subsections (1), (4) to (8) and (11) of section 447 of the Act.

(5) If the first condition is satisfied, references in this Chapter to the defendant are to the alleged offender.

Restraint orders

8.—(1) If either condition set out in article 7 is satisfied, the Crown Court may make an order (“a restraint order”) prohibiting any specified person from dealing with relevant property which is identified in the external request and specified in the order.

(2) 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 in connection with the proceedings seeking a restraint order or the registration of an external order;

(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.

(3) Paragraph (4) applies if—

(a) a court makes a restraint order, and

(b) the applicant for the order applies to the court to proceed under paragraph (4) (whether as part of the application for the restraint order or at any time afterwards).

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

(5) 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(1);

(b) section 78 of the Criminal Justice Act 1988(2);

(c) Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990(3);

(d) section 27 of the Drug Trafficking Act 1994(4);

(e) Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996(5).

(6) Dealing with property includes removing it from England and Wales.

Application, discharge and variation of restraint orders

9.—(1) A restraint order—

(a) may be made only on an application by the relevant Director;

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

(2) An application to discharge or vary a restraint order or an order under article 8(4) may be made to the Crown Court by—

(a) the relevant Director;

(b) any person affected by the order.

(3) Paragraphs (4) to (7) apply to an application under paragraph (2).

(4) The court—

(a) may discharge the order;

(b) may vary the order.

(5) If the condition in article 7 which was satisfied was that proceedings were started, the court must discharge the order if, at the conclusion of the proceedings, no external order has been made.

(6) If the condition in article 7 which was satisfied was that proceedings were started, the court must discharge the order if within a reasonable time an external order has not been registered under Chapter 2 of this Part.

(7) If the condition in article 7 which was satisfied was that an investigation was started, the court must discharge the order if within a reasonable time proceedings for the offence are not started.

Appeal to Court of Appeal about restraint orders

10.—(1) If on an application for a restraint order the Crown Court decides not to make one, the relevant Director may appeal to the Court of Appeal against the decision.

(2) If an application is made under article 9(2) in relation to a restraint order or an order under article 8(4), the following persons may appeal to the Court of Appeal in respect of the Crown Court’s decision on the application—

(a) the relevant Director;

(b) any person affected by the order.

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

(a) confirm the decision, or

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

Appeal to House of Lords about restraint orders

11.—(1) An appeal lies to the House of Lords from a decision of the Court of Appeal on an appeal under article 10.

(2) An appeal under this article 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 article the House of Lords may—

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

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

Seizure in pursuance of restraint order

12.—(1) If a restraint order is in force a constable or a relevant officer of Revenue and Customs may seize any property which is specified in it to prevent its removal from England and Wales.

(2) Property seized under paragraph (1) must be dealt with in accordance with the directions of the court which made the order.

Hearsay evidence in restraint proceedings

13.—(1) Evidence must not be excluded in restraint proceedings on the ground that it is hearsay (of whatever degree).

(2) Sections 2 to 4 of the Civil Evidence Act 1995(6) apply in relation to restraint proceedings as those sections apply in relation to civil proceedings.

(3) Restraint proceedings are proceedings—

(a) for a restraint order;

(b) for the discharge or variation of a restraint order;

(c) on an appeal under article 10 or 11.

(4) Hearsay is a statement which is made otherwise than by a person while giving oral evidence in the proceedings and which is rendered as evidence of the matters stated.

(5) Nothing in this article affects the admissibility of evidence which is admissible apart from this article.

Supplementary (restraint orders)

14.—(1) The registration Acts—

(a) apply in relation to restraint orders as they apply in relation to orders which affect land and are made by the court for the purpose of enforcing judgments or recognisances;

(b) apply in relation to applications for restraint orders as they apply in relation to other pending land actions.

(2) The registration Acts are—

(a) the Land Charges Act 1972(7);

(b) the Land Registration Act 2002(8).

(3) But no notice may be entered in the register of title under the Land Registration Act 2002 in respect of a restraint order.

Appointment of management receivers

15.—(1) Paragraph (2) applies if—

(a) the Crown Court makes a restraint order, and

(b) the relevant Director applies to the court to proceed under paragraph (2) (whether as part of the application for the restraint order or at any time afterwards).

(2) The Crown Court may by order appoint a receiver in respect of any property which is specified in the restraint order.

Powers of management receivers

16.—(1) If the court appoints a receiver under article 15 it may act under this article on the application of the relevant Director.

(2) The court may by order confer on the receiver the following powers in relation to any property which is specified in the restraint order—

(a) power to take possession of the property;

(b) power to manage or otherwise deal with the property;

(c) power to start, carry on or defend any legal proceedings in respect of the property;

(d) power to realise so much of the property as is necessary to meet the receiver’s remuneration and expenses.

(3) The court may by order confer on the receiver power to enter any premises in England and Wales and to do any of the following—

(a) search for or inspect anything authorised by the court;

(b) make or obtain a copy, photograph or other record of anything so authorised;

(c) remove anything which the receiver is required or authorised to take possession of in pursuance of an order of the court.

(4) The court may by order authorise the receiver to do any of the following for the purpose of the exercise of his functions—

(a) hold property;

(b) enter into contracts;

(c) sue and be sued;

(d) employ agents;

(e) execute powers of attorney, deeds or other instruments;

(f) take any other steps the court thinks appropriate.

(5) The court may order any person who has possession of property which is specified in the restraint order to give possession of it to the receiver.

(6) The court—

(a) may order a person holding an interest in property which is specified in the restraint order to make to the receiver such payment as the court specifies in respect of a beneficial interest held by the defendant or the recipient of a tainted gift;

(b) may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

(7) Paragraphs (2), (5) and (6) do not apply to property for the time being subject to a charge under any of these provisions—

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

(b) section 78 of the Criminal Justice Act 1988(10);

(c) Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990(11);

(d) section 27 of the Drug Trafficking Act 1994(12);

(e) Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996(13).

(8) The court must not—

(a) confer the power mentioned in paragraph (2)(b) or (d) in respect of property, or

(b) exercise the power conferred on it by paragraph (6) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

(9) The court may order that a power conferred by an order under this article is subject to such conditions and exceptions as it specifies.

(10) Managing or otherwise dealing with property includes—

(a) selling the property or any part of it or interest in it;

(b) carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

(c) incurring capital expenditure in respect of the property.

Restrictions relating to restraint orders

17.—(1) Paragraphs (2) to (4) apply if a court makes a restraint order.

(2) No distress may be levied against any property which is specified in the order except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

(3) If the order applies to a tenancy of any premises, no landlord or other person to whom rent is payable may exercise a right within paragraph (4) except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

(4) A right is within this paragraph if it is a right of forfeiture by peaceable re-entry in relation to the premises in respect of any failure by the tenant to comply with any term or condition of the tenancy.

(5) If a court in which proceedings are pending in respect of any property is satisfied that a restraint order has been applied for or made in respect of the property, the court may either stay the proceedings or allow them to continue on any terms it thinks fit.

(6) Before exercising any power conferred by paragraph (5), the court must give an opportunity to be heard to—

(a) the relevant Director, and

(b) any receiver appointed in respect of the property under article 15, 27 or 30.

CHAPTER 2 EXTERNAL ORDERS

Action on receipt of external order in connection with criminal convictions

18.—(1) Except where paragraph (2) applies, the Secretary of State may refer an external order arising from a criminal conviction in the country from which the order was sent and concerning relevant property in England or Wales to—

(a) the Director of the Agency;

(b) the Director of Public Prosecutions;

(c) the Director of Revenue and Customs Prosecutions,

to process it.

(2) This paragraph applies where it appears to the Secretary of State that—

(a) the property or sum of money specified in the order was found, or was believed, to have been obtained as a result of, or in connection with, criminal conduct involving serious or complex fraud, and

(b) the order concerns relevant property in England or Wales.

(3) Where paragraph (2) applies, the Secretary of State may refer the order to the Director of the Serious Fraud Office to process it.

(4) In this Chapter “the relevant Director” means the Director to whom an external order is referred under paragraph (1) or (3).

(5) Where an order concerns relevant property which is in Scotland or Northern Ireland as well as England or Wales, so much of the request as concerns such property shall be dealt with under Part 3 or 4, respectively.

Authentication by the overseas court

19.—(1) Paragraph (2) applies where an overseas court has authenticated its involvement in—

(a) any judgment,

(b) any order,

(c) any other document concerned with such a judgment or order or proceedings relating to it.

(2) Where this paragraph applies, any statement in the judgment, order or document is admissible in evidence in proceedings under this Chapter.

Applications to give effect to external orders

20.—(1) An application may be made by the relevant Director to the Crown Court to give effect to an external order.

(2) No application to give effect to such an order may be made otherwise than under paragraph (1).

(3) An application under paragraph (1)—

(a) shall include a request to appoint the relevant Director as the enforcement authority for the order;

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

Conditions for Crown Court to give effect to external orders

21.—(1) The Crown Court must decide to give effect to an external order by registering it where all of the following conditions are satisfied.

(2) The first condition is that the external order was made consequent on the conviction of the person named in the order and no appeal is outstanding in respect of that conviction.

(3) The second condition is that the external order is in force and no appeal is outstanding in respect of it.

(4) The third condition is that giving effect to the external order would not be incompatible with any of the Convention rights (within the meaning of the Human Rights Act 1998(14)) of any person affected by it.

(5) The fourth condition applies only in respect of an external order which authorises the confiscation of property other than money that is specified in the order.

(6) That condition is that the specified property must not be subject to a charge under any of the following provisions—

(a) section 9 of the Drug Trafficking Offences Act 1986(15);

(b) section 78 of the Criminal Justice Act 1988(16);

(c) Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990(17);

(d) section 27 of the Drug Trafficking Act 1994(18);

(e) Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996(19).

(7) In determining whether the order is an external order within the meaning of the Act, the Court must have regard to the definitions in subsections (2), (4), (5), (6), (8) and (10) of section 447 of the Act.

(8) In paragraph (3) “appeal” includes—

(a) any proceedings by way of discharging or setting aside the order; and

(b) an application for a new trial or stay of execution.

Registration of external orders

22.—(1) Where the Crown Court decides to give effect to an external order, it must—

(a) register the order in that court;

(b) provide for notice of the registration to be given to any person affected by it; and

(c) appoint the relevant Director as the enforcement authority for the order.

(2) Only an external order registered by the Crown Court may be implemented under this Chapter.

(3) The Crown Court may cancel the registration of the external order, or vary the property to which it applies, on an application by the relevant Director or any person affected by it if, or to the extent that, the court is of the opinion that any of the conditions in article 21 is not satisfied.

(4) The Crown Court must cancel the registration of the external order, on an application by the relevant Director or any person affected by it, if it appears to the court that the order has been satisfied—

(a) in the case of an order for the recovery of a sum of money specified in it, by payment of the amount due under it, or

(b) in the case of an order for the recovery of specified property, by the surrender of the property, or

(c) by any other means.

(5) Where the registration of an external order is cancelled or varied under paragraph (3) or (4), the Crown Court must provide for notice of this to be given to the relevant Director and any person affected by it.

Appeal to Court of Appeal about external orders

23.—(1) If on an application for the Crown Court to give effect to an external order by registering it, the court decides not to do so, the relevant Director may appeal to the Court of Appeal against the decision.

(2) If an application is made under article 22(3) or (4) in relation to the registration of an external order, the following persons may appeal to the Court of Appeal in respect of the Crown Court’s decision on the application—

(a) the relevant Director;

(b) any person affected by the registration.

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

(a) confirm or set aside the decision to register; or

(b) direct the Crown Court to register the external order (or so much of it as relates to property other than to which article 21(6) applies).

Appeal to House of Lords about external orders

24.—(1) An appeal lies to the House of Lords from a decision of the Court of Appeal on an appeal under article 23.

(2) An appeal under this article 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 article the House of Lords may—

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

(b) direct the Crown Court to register the external order (or so much of it as relates to property other than property to which article 21(6) applies).

Sums in currency other than sterling

25.—(1) This article applies where the external order which is registered under article 22 specifies a sum of money.

(2) If the sum of money which is specified is expressed in a currency other than sterling, the sum of money to be recovered is to be taken to be the sterling equivalent calculated in accordance with the rate of exchange prevailing at the end of the working day immediately preceding the day when the Crown Court registered the external order under article 22.

(3) The sterling equivalent must be calculated by the relevant Director.

(4) The notice referred to in article 22(1)(b) and (5) must set out the amount in sterling which is to be paid.

(5) In this article “working day” means any day other than—

(a) a Saturday or Sunday;

(b) Christmas Day;

(c) Good Friday;

(d) any day that is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971(20).

Time for payment

26.—(1) This article applies where the external order is for the recovery of a specified sum of money.

(2) Subject to paragraphs (3) to (6), the amount ordered to be paid under—

(a) an external order that has been registered under article 22, or

(b) where article 25(2) applies, the notice under article 22(1)(b),

must be paid on the date on which the notice under article 22(1)(b) is delivered to the person affected by it.

(3) Where there is an appeal under article 23 or 24 and a sum falls to be paid when the appeal has been determined or withdrawn, the duty to pay is delayed until the day on which the appeal is determined or withdrawn.

(4) If the person affected by an external order which has been registered shows that he needs time to pay the amount ordered to be paid, the Crown Court which registered the order may make an order allowing payment to be made in a specified period.

(5) The specified period—

(a) must start with the day on which the notice under article 22(1)(b) was delivered to the person affected by the order or the day referred to in paragraph (3), as the case may be, and

(b) must not exceed six months.

(6) If within the specified period the person affected by an external order applies to the Crown Court which registered the order for the period to be extended and the court believes that there are exceptional circumstances, it may make an order extending the period.

(7) The extended period—

(a) must start with the day on which the notice under article 22(1)(b) was delivered to the person affected by it or the day referred to in paragraph (3), as the case may be, and

(b) must not exceed 12 months.

(8) An order under paragraph (6)—

(a) may be made after the end of the specified period, but

(b) must not be made after the end of the extended period.

(9) The court must not make an order under paragraph (4) or (6) unless it gives the relevant Director an opportunity to make representations.

Appointment of enforcement receivers

27.—(1) This article applies if—

(a) an external order is registered,

(b) it is not satisfied, and

(c) in the case of an external order for the recovery of a specified sum of money, any period specified by order under article 26 has expired.

(2) On the application of the relevant Director, other than the Director of the Agency, the Crown Court may by order appoint a receiver in respect of—

(a) where the external order is for the recovery of a specified sum of money, realisable property;

(b) where the external order is for the recovery of specified property, that property.

Powers of enforcement receivers in respect of monetary external orders

28.—(1) ) If the court appoints a receiver under article 27, it may act under this article on the application of the relevant Director, other than the Director of the Agency, where the external order is for the recovery of a specified sum of money.

(2) The court may by order confer on the receiver the following powers in relation to any realisable property—

(a) power to take possession of the property;

(b) power to manage or otherwise deal with the property;

(c) power to realise the property, in such manner as the court may specify;

(d) power to start, carry on or defend any legal proceedings in respect of the property.

(3) The court may by order confer on the receiver power to enter any premises in England and Wales and to do any of the following—

(a) search for or inspect anything authorised by the court;

(b) make or obtain a copy, photograph or other record, of anything so authorised;

(c) remove anything which the receiver is required or authorised to take possession of in pursuance of an order of the court.

(4) The court may by order authorise the receiver to do any of the following for the purposes of the exercise of his functions—

(a) hold property;

(b) enter into contracts;

(c) sue and be sued;

(d) employ agents;

(e) execute powers of attorney, deeds or other instruments;

(f) take any other steps the court thinks appropriate.

(5) The court may order any person who has possession of realisable property to give possession of it to the receiver.

(6) The court—

(a) may order a person holding an interest in realisable property to make to the receiver such payment as the court specifies in respect of a beneficial interest held by the defendant or the recipient of a tainted gift;

(b) may (on payment being made) by order transfer, grant or extinguish any interest in the property.

(7) Paragraphs (2), (5) and (6) do not apply to property for the time being subject to a charge under any of these provisions—

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

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

(c) Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990;

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

(e) Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996.

(8) The court must not—

(a) confer the power mentioned in paragraph (2)(b) or (c) in respect of property, or

(b) exercise the power conferred on it by paragraph (6) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

(9) The court may order that a power conferred by an order under this article is subject to such conditions and exceptions as it specifies.

(10) Managing or otherwise dealing with property includes—

(a) selling the property or any part of it or interest in it;

(b) carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

(c) incurring capital expenditure in respect of the property.

Powers of enforcement receivers in respect of external orders for the recovery of specified property

29.—(1) If the court appoints a receiver under article 27, it may act under this article on the application of the relevant Director (other that the Director of the Agency) where the external order is for the recovery of property specified in the order (“the specified property”).

(2) The court may by order confer on the receiver the following powers in relation to the specified property—

(a) power to take possession of the property;

(b) power to manage or otherwise deal with the property;

(c) power to realise the property, in such manner as the court may specify;

(d) power to start, carry on or defend any legal proceedings in respect of the property.

(3) The court may by order confer on the receiver power to enter any premises in England and Wales and to do any of the following—

(a) search for or inspect anything authorised by the court;

(b) make or obtain a copy, photograph or other record of anything so authorised;

(c) remove anything which the receiver is required or authorised to take possession of in pursuance of an order of the court.

(4) The court may by order authorise the receiver to do any of the following for the purposes of the exercise of his functions—

(a) hold property;

(b) enter into contracts;

(c) sue and be sued;

(d) employ agents;

(e) execute powers of attorney, deeds or other instruments;

(f) take any other steps the court thinks appropriate.

(5) The court may order any person who has possession of the specified property to give possession of it to the receiver.

(6) The court—

(a) may order a person holding an interest in the specified property to make to the receiver such payment as the court specifies in respect of a beneficial interest held by the defendant or the recipient of a tainted gift;

(b) may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

(7) The court must not—

(a) confer the power mentioned in paragraph (2)(b) or (c) in respect of property, or

(b) exercise the power conferred on it by paragraph (6) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

(8) The court may order that a power conferred by an order under this article is subject to such conditions and exceptions as it specifies.

(9) Managing or otherwise dealing with property includes—

(a) selling the property or any part of it or interest in it;

(b) carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

(c) incurring capital expenditure in respect of the property.

Appointment of Director of Agency’s receivers

30.—(1) This article applies if—

(a) an external order is registered, and

(b) the Director of the Agency is appointed as the enforcement authority for the order under article 22.

(2) If this article applies, the Crown Court must make an order for the appointment of a receiver in respect of—

(a) where the external order is for the recovery of a specified sum of money, realisable property;

(b) where the external order is for the recovery of specified property, that property.

(3) An order under paragraph (2)—

(a) must confer power on the Director to nominate the person who is to be the receiver, and

(b) takes effect when the Director nominates that person.

(4) The Director must not nominate a person under paragraph (3) unless at the time he does so—

(a) the external order is not satisfied, and

(b) in the case of an external order for the recovery of a specified sum of money, any period specified by order under article 26 has expired.

(5) A person nominated to be the receiver under paragraph (3) may be—

(a) a member of the staff of the Agency;

(b) a person providing services under arrangements made by the Director.

Powers of Director of Agency’s receivers in respect of monetary external orders

31.—(1) If the court makes an order for the appointment of a receiver under article 30, it may act under this article on the application of the Director of the Agency where the external order is for the recovery of a specified sum of money.

(2) The court may by order confer on the receiver the following powers in relation to any realisable property—

(a) power to take possession of the property;

(b) power to manage or otherwise deal with the property;

(c) power to realise the property, in such manner as the court may specify;

(d) power to start, carry on or defend any legal proceedings in respect of the property.

(3) The court may by order confer on the receiver power to enter any premises in England and Wales and to do any of the following—

(a) search for or inspect anything authorised by the court;

(b) make or obtain a copy, photograph or other record of anything so authorised;

(c) remove anything which the receiver is required or authorised to take possession of in pursuance of an order of the court.

(4) The court may by order authorise the receiver to do any of the following for the purpose of the exercise of his functions—

(a) hold property;

(b) enter into contracts;

(c) sue and be sued;

(d) employ agents;

(e) execute powers of attorney, deeds or other instruments;

(f) take any other steps the court thinks appropriate.

(5) The court may order any person who has possession of realisable property to give possession of it to the receiver.

(6) The court—

(a) may order a person holding an interest in realisable property to make to the receiver such payment as the court specifies in respect of a beneficial interest held by the defendant or the recipient of a tainted gift;

(b) may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

(7) Paragraphs (2), (5) and (6) do not apply to property for the time being subject to a charge under any of the following provisions—

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

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

(c) Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990;

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

(e) Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996.

(8) The court must not—

(a) confer the power mentioned in paragraph (2)(b) or (c) in respect of property, or

(b) exercise the power conferred on it by paragraph (6) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

(9) The court may order that a power conferred by an order under this article is subject to such conditions and exceptions as it specifies.

(10) Managing or otherwise dealing with property includes—

(a) selling the property or any part of it or interest in it;

(b) carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

(c) incurring capital expenditure in respect of the property.

Powers of Director of Agency’s receivers in respect of external orders for the recovery of specified property

32.—(1) If the court makes an order for the appointment of a receiver under article 30, it may act under this article on the application of the Director of the Agency where the external order is for the recovery of property specified in the order (“the specified property”).

(2) The court may by order confer on the receiver the following powers in relation to the specified property—

(a) power to take possession of the property;

(b) power to manage or otherwise deal with the property;

(c) power to realise the property, in such manner as the court may specify;

(d) power to start, carry on or defend legal proceedings in respect of the property.

(3) The court may by order confer on the receiver power to enter any premises in England and Wales and to do any of the following—

(a) search for or inspect anything authorised by the court;

(b) make or obtain a copy, photograph or other record of anything so authorised;

(c) remove anything which the receiver is required or authorised to take possession of in pursuance of an order of the court.

(4) The court may by order authorise the receiver to do any of the following for the purpose of the exercise of his functions—

(a) hold property;

(b) enter into contracts;

(c) sue and be sued;

(d) employ agents;

(e) execute powers of attorney, deeds or other instruments;

(f) take any other steps the court thinks appropriate.

(5) The court may order any person who has possession of the specified property to give possession of it to the receiver.

(6) The court—

(a) may order a person holding an interest in the specified property to make to the receiver such payment as the court specifies in respect of a beneficial interest held by the defendant or the recipient of a tainted gift;

(b) may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

(7) The court must not—

(a) confer the power mentioned in paragraph (2)(b) or (c) in respect of property, or

(b) exercise the power conferred on it by paragraph (6) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

(8) The court may order that a power conferred by an order under this article is subject to such conditions and exceptions as it specifies.

(9) Managing or otherwise dealing with property includes—

(a) selling the property or any part of it or interest in it;

(b) carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

(c) incurring capital expenditure in respect of the property.

Application of sums by enforcement receivers

33.—(1) This article applies to sums which are in the hands of a receiver appointed under article 27 if they are—

(a) the proceeds of the realisation of property under article 28 or 29;

(b) where article 28 applies, sums (other than those mentioned in sub-paragraph (a)) in which the defendant holds an interest.

(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 paragraph by virtue of article 3;

(b) second, they must be applied in making any payments directed by the Crown Court;

(c) third, they must be applied on the defendant’s behalf towards satisfaction of the external order.

(3) If the amount payable under the external order has been fully paid and any sums remain in the receiver’s hands he must distribute them—

(a) among such persons who held (or hold) interests in the property concerned as the Crown Court directs; and

(b) in such proportions as it directs.

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

(5) For the purposes of paragraphs (3) and (4) the property concerned is—

(a) the property represented by the proceeds mentioned in paragraph (1)(a);

(b) the sums mentioned in paragraph (1)(b).

(6) The receiver applies sums as mentioned in paragraph (2)(c) by paying them to the relevant Director on account of the amount payable under the order.

Sums received by relevant Director

34.—(1) This article applies if a relevant Director receives sums on account of the amount payable under a registered external order or the value of the property specified in the order.

(2) The relevant Director’s receipt of the sums reduces the amount payable under the order, but he must apply the sums received as follows.

(3) First he must apply them in payment of such expenses incurred by a person acting as an insolvency practitioner as—

(a) are payable under this paragraph by virtue of article 3, but

(b) are not already paid under article 33(2)(a).

(4) He must next apply them—

(a) first, in payment of the remuneration and expenses of a receiver appointed under article 15 to the extent that they have not been met by virtue of the exercise by that receiver of a power conferred under article 16(2)(d);

(b) second, in payment of the remuneration and expenses of the receiver appointed under article 27.

(5) Any sums which remain after the relevant Director has made any payments required by the preceding provisions of this article must be paid into the Consolidated Fund.

(6) Paragraph (4) does not apply if the receiver is a member of the staff of the Crown Prosecution Service, the Serious Fraud Office or the Revenue and Customs Prosecution Office; and it is immaterial whether he is a permanent or temporary member or he is on secondment from elsewhere.

Application of sums by Director of Agency’s receivers

35.—(1) This article applies to sums which are in the hands of a receiver appointed under article 30 if they are—

(a) the proceeds of the realisation of property under article 31 or 32;

(b) where article 31 applies, sums (other than those mentioned in sub-paragraph (a)) in which the defendant holds an interest.

(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 paragraph by virtue of article 3;

(b) second, they must be applied in making any payments directed by the Crown Court;

(c) third, they must be applied on the defendant’s behalf towards satisfaction of the external order by being paid to the Director on account of the amount payable under it.

(3) If the amount payable under the external order has been fully paid and any sums remain in the receiver’s hands he must distribute them—

(a) among such persons who held (or hold) interests in the property concerned as the Crown Court directs, and

(b) in such proportions as it directs.

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

(5) For the purposes of paragraphs (3) and (4) the property concerned is—

(a) the property represented by the proceeds mentioned in sub-paragraph (1)(a);

(b) the sums mentioned in sub-paragraph (1)(b).

Application of sums received by the Director of the Agency

36.—(1) This article applies if the Director of the Agency receives sums on account of the amount payable under a registered external order or the value of the property specified in the order.

(2) The Director’s receipt of the sums reduces the amount payable under the order, but he must apply the sums received as follows.

(3) First, he must apply them in payment of such expenses incurred by a person acting as an insolvency practitioner as—

(a) are payable under this paragraph by virtue of article 3, but

(b) are not already paid under article 35(2)(a).

(4) He must next apply them—

(a) first, in payment of the remuneration and expenses of a receiver appointed under article 15, to the extent that they have not been met by virtue of the exercise by that receiver of a power conferred under article 16(2)(d);

(b) second, in payment of the remuneration and expenses of the receiver appointed under article 30.

(5) Paragraph (4) does not apply if the receiver is a member of the staff of the Agency or a person providing services under arrangements made by the Director.

Satisfaction of external order

37.—(1) A registered external order is satisfied when no amount is due under it.

(2) Where such an order authorises the recovery of property specified in it, no further amount is due under the order when all of the specified property has been sold.

Restrictions relating to enforcement receivers

38.—(1) Paragraphs (2) to (4) apply if a court makes an order under article 27 appointing a receiver in respect of any realisable property or specified property.

(2) No distress may be levied against the property except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

(3) If the receiver is appointed in respect of a tenancy of any premises, no landlord or other person to whom rent is payable may exercise a right within paragraph (4) except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

(4) A right is within this paragraph if it is a right of forfeiture by peaceable re-entry in relation to the premises in respect of any failure by the tenant to comply with any term or condition of the tenancy.

(5) If a court in which proceedings are pending in respect of any property is satisfied that an order under article 27 appointing a receiver in respect of the property has been applied for or made, the court may either stay the proceedings or allow them to continue on any terms it thinks fit.

(6) Before exercising any power conferred by paragraph (5), the court must give an opportunity to be heard to—

(a) the relevant Director (other than the Director of the Agency), and

(b) the receiver (if the order under article 27 has been made).

Restrictions relating to Director of the Agency’s receivers

39.—(1) Paragraphs (2) to (4) apply if—

(a) the Crown Court has made an order under article 30 for the appointment of a receiver in respect of any realisable property or specified property, and

(b) the order has taken effect.

(2) No distress may be levied against the property except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

(3) If the order is for the appointment of a receiver in respect of a tenancy of any premises, no landlord or other person to whom rent is payable may exercise a right within paragraph (4) except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

(4) A right is within this paragraph if it is a right of forfeiture by peaceable re-entry in relation to the premises in respect of any failure by the tenant to comply with any term or condition of the tenancy.

(5) If a court (whether the Crown Court or any other court) in which proceedings are pending in respect of any property is satisfied that an order under article 30 for the appointment of a receiver in respect of the property has taken effect, the court may either stay the proceedings or allow them to continue on any terms it thinks fit.

(6) Before exercising any power conferred by paragraph (5), the court must give an opportunity to be heard to—

(a) the Director of the Agency, and

(b) the receiver.

CHAPTER 3 RECEIVERS AND PROCEDURE

Protection of receiver appointed under articles 15, 27 and 30

40.  If a receiver appointed under article 15, 27 or 30—

(a) takes action in relation to property which is not realisable property or, as the case may be, the specified property,

(b) would be entitled to take the action if it were realisable property or, as the case may be, the specified property, and

(c) believes on reasonable grounds that he is entitled to take the action,

he is not liable to any person in respect of any loss or damage resulting from the action, except so far as the loss or damage is caused by his negligence.

Further applications by receivers

41.—(1) This article applies to a receiver appointed under article 15, 27 or 30.

(2) The receiver may apply to the Crown Court for an order giving directions as to the exercise of his powers.

(3) The following persons may apply to the Crown Court—

(a) any person affected by action taken by the receiver;

(b) any person who may be affected by action the receiver proposes to take.

(4) On an application under this article the court may make such order as it believes is appropriate.

Discharge and variation of receiver orders

42.—(1) The following persons may apply to the Crown Court to vary or discharge an order made under article 15, 16 or 27 to 32—

(a) the receiver;

(b) the relevant Director;

(c) any person affected by the order.

(2) On an application under this article the court—

(a) may discharge the order;

(b) may vary the order.

(3) But in the case of an order under article 15 or 16—

(a) if the condition in article 7 which was satisfied was that proceedings were started, the court must discharge the order if at the conclusion of the proceedings no external order has been made;

(b) if the condition which was satisfied was that proceedings were started, the court must discharge the order if within a reasonable time an external order has not been registered under Chapter 2 of this Part;

(c) if the condition which was satisfied was that an investigation was started, the court must discharge the order if within a reasonable time proceedings for the offence are not started.

Management receivers: discharge

43.—(1) This article applies if—

(a) a receiver stands appointed under article 15 in respect of property which is identified in the restraint order (the management receiver), and

(b) the court appoints a receiver under article 27 or makes an order for the appointment of a receiver under article 30.

(2) The court must order the management receiver to transfer to the other receiver all property held by the management receiver by virtue of the powers conferred on him by article 16.

(3) But in a case where the court makes an order under article 30 its order under paragraph (2) does not take effect until the order under article 30 takes effect.

(4) Paragraph (2) does not apply to property which the management receiver holds by virtue of the exercise by him of his power under article 16(2)(d).

(5) If the management receiver complies with an order under paragraph (2) he is discharged—

(a) from his appointment under article 15;

(b) from any obligation under this Order arising from his appointment.

(6) If this article applies the court may make such a consequential or incidental order as it believes is appropriate.

Appeal to Court of Appeal about receivers

44.—(1) If on an application for an order under any of articles 15, 16, 27 to 29, 31 or 32 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 the court makes an order under any of articles 15, 16, 27 to 29, 31 or 32, the following persons may appeal to the Court of Appeal in respect of the court’s decision—

(a) the person who applied for the order;

(b) any person affected by the order.

(3) If on an application for an order under article 41 the court decides not to make one, the person who applied for the order may appeal to the Court of Appeal against the decision.

(4) If the court makes an order under article 41 the following persons may appeal to the Court of Appeal in respect of the court’s decision—

(a) the person who applied for the order;

(b) any person affected by the order;

(c) the receiver.

(5) The following persons may appeal to the Court of Appeal against a decision of the court on an application under article 42—

(a) the person who applied for the order in respect of which the application was made or (if the order was made under article 31 or 32 the Director of the Agency;

(b) any person affected by the court’s decision;

(c) the receiver.

(6) On an appeal under this article the Court of Appeal may—

(a) confirm the decision, or

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

Appeal to the House of Lords about receivers

45.—(1) An appeal lies to the House of Lords from a decision of the Court of Appeal on an appeal under article 44.

(2) An appeal under this article 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 article the House of Lords may—

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

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

Powers of court and receiver

46.—(1) This article applies to—

(a) the powers conferred on a court by this Part;

(b) the powers of a receiver appointed under article 15, 27 or 30.

(2) The powers—

(a) must be exercised with a view to the value for the time being of realisable property or specified property being made available (by the property’s realisation) for satisfying an external order that has been or may be made against the defendant;

(b) must be exercised, in a case where an external order has not been made, with a view to securing that there is no diminution in the value of the property identified in the external request;

(c) must be exercised without taking account of any obligation of a defendant or a recipient of a tainted gift if the obligation conflicts with the object of satisfying any external order against the defendant that has been or may be registered under article 22;

(d) may be exercised in respect of a debt owed by the Crown.

(3) Paragraph (2) has effect subject to the following rules—

(a) the powers must be exercised with a view to allowing a person other than the defendant or a recipient of a tainted gift to retain or recover the value of any interest held by him;

(b) in the case of realisable property or specified property held by a recipient of a tainted gift, the powers must be exercised with a view to realising no more than the value for the time being of the gift;

(c) in a case where an external order has not been made against the defendant, property must not be sold if the court so orders under paragraph (4).

(4) If on an application by the defendant or the recipient of a tainted gift, the court decides that property cannot be replaced it may order that it must not be sold.

(5) An order under paragraph (4) may be revoked or varied.

Procedure on appeal to Court of Appeal under Part 2

47.—(1) An appeal to the Court of Appeal under this Part lies only with the leave of that Court.

(2) Subject to rules of court made under section 53(1) of the Supreme Court Act 1981(21) (distribution of business between civil and criminal divisions) the criminal division of the Court of Appeal is the division—

(a) to which an appeal to that Court under this Part is to lie, and

(b) which is to exercise that Court’s jurisdiction under this Part.

(3) In relation to appeals to the Court of Appeal under this Part, the Secretary of State may make an order containing provision corresponding to any provision in the Criminal Appeal Act 1968(22), subject to any specified modifications.

(4) Subject to any rules of court, the costs of and incidental to all proceedings on an appeal to the criminal division of the Court of Appeal under article 10, 23 or 44 are in the discretion of the court.

(5) The court shall have full power to determine by whom and to what extent the costs are to be paid.

(6) In any proceedings mentioned in paragraph (4), the court may—

(a) disallow, or

(b) (as the case may be) order the legal or other representative concerned to meet,

the whole of any wasted costs or such part of them as may be determined in accordance with rules of court.

(7) In paragraph (6) “wasted costs” means any costs incurred by a party—

(a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative, or

(b) which, in the light of any such act or omission occurring after they were incurred, the court considers it unreasonable to expect that party to pay.

(8) “Legal or other representative”, in relation to a party to proceedings, means any person exercising a right of audience or right to conduct litigation on his behalf.

Procedure on appeal to House of Lords under Part 2

48.—(1) Section 33(3) of the Criminal Appeal Act 1968 (limitation on appeal from criminal division of the Court of Appeal) does not prevent an appeal to the House of Lords under this Part.

(2) In relation to appeals to the House of Lords under this Part, the Secretary of State may make an order containing provision corresponding to any provision in the Criminal Appeal Act 1968, subject to any specified modifications.

CHAPTER 4 INTERPRETATION

Property

49.—(1) In this Part, “realisable property” means in a case where the external order specifies a sum of money, any free property held by the defendant or by the recipient of a tainted gift.

(2) “Free property” has the same meaning as in section 82 of the Act (free property)(23).

(3) The rules in paragraphs (a) and (c) to (g) of section 84(2) of the Act (property: general provisions) apply in relation to property under this Order (in addition to section 447(4) to (6) of the Act (interpretation)) as they apply in relation to property under Part 2 of the Act.

Tainted gifts

50.—(1) In this Part, a gift is tainted if it was made by the defendant at any time after—

(a) the date on which the offence to which the external order or external request relates was committed, or

(b) if his criminal conduct consists of two or more such offences and they were committed on different dates, the date of the earliest.

(2) For the purposes of paragraph (1), an offence which is a continuing offence is committed on the first occasion when it is committed.

(3) A gift may be a tainted gift whether it was made before or after the coming into force of this Order.

Gifts and their recipients

51.—(1) In this Part, a defendant is to be treated as making a gift if he transfers property to another person for a consideration whose value is significantly less than the value of the property at the time of the transfer.

(2) If paragraph (1) applies, the property given is to be treated as such share in the property transferred as is represented by the fraction—

(a) whose numerator is the difference between the two values mentioned in paragraph (1), and

(b) whose denominator is the value of the property at the time of the transfer.

(3) In this Part references to a recipient of a tainted gift are to a person to whom the defendant has made the gift.

Value: the basic rule

52.—(1) Subject to article 53, this article applies where it is necessary under this Part to decide the value at any time of property then held by a person.

(2) Its value is the market value of the property at that time.

(3) But if at that time another person holds an interest in the property its value, in relation to the person mentioned in paragraph (1), is the market value of his interest at that time, ignoring any charging order under a provision listed in paragraph (4).

(4) Those provisions are—

(a) section 9 of the Drug Trafficking Offences Act 1986(24);

(b) section 78 of the Criminal Justice Act 1988(25);

(c) Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990(26);

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

(e) Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996(28).

Value of tainted gifts

53.—(1) The value at any time (the material time) of a tainted gift is the greater of the following—

(a) the value (at time of the gift) of the property given, adjusted to take account of later changes in the value of money;

(b) the value (at the material time) of the property found under paragraph (2).

(2) The property found under this paragraph is as follows—

(a) if the recipient holds the property given, the property found under this paragraph is that property;

(b) if the recipient holds no part of the property given, the property found under this paragraph is any property which directly or indirectly represents it in his hands;

(c) if the recipient holds part of the property given, the property found under this paragraph is that part and any property which directly or indirectly represents the other part in his hands.

(3) The references in paragraph (1)(a) and (b) to the value are to the value found in accordance with article 52.

Meaning of “defendant”

54.  In this Part “defendant”—

(a) in relation to a restraint order means—

(i) in a case in which the first condition in article 7 is satisfied, the alleged offender;

(ii) in a case in which the second condition in article 7 is satisfied, the person against whom proceedings for an offence have been started in a country outside the United Kingdom (whether or not he has been convicted);

(b) in relation to an external order, the person convicted of criminal conduct.

Other interpretation

55.  In this Part—

“relevant Director” has the meaning—

(a)

in the context of an external request, set out in article 6(4);

(b)

in the context of an external order, set out in article 18(4);

“relevant property” means property which satisfies the test in section 447(7) of the Act;

“specified property” means property specified in an external order (other than an order that

specifies a sum of money).

(1)

1986 c. 32.

(2)

1988 c. 33.

(3)

S.I. 1990/2588 (N.I. 17).

(4)

1994 c. 37.

(5)

S.I. 1996/1299 (N.I. 9).

(6)

1995 c. 38.

(7)

1972 c. 61.

(8)

2002 c. 9.

(9)

1986 c. 32.

(10)

1988 c. 33.

(11)

S.I. 1990/2588 (N.I. 17).

(12)

1994 c. 37.

(13)

S.I. 1996/1299 (N.I. 9).

(14)

1998 c. 42.

(15)

1986 c. 32.

(16)

1988 c. 33.

(17)

S.I. 1990/2588 (N.I. 17).

(18)

1994 c. 37.

(19)

S.I. 1996/1299 (N.I. 9).

(20)

1971 c. 80.

(21)

1981 c. 54.

(22)

1968 c. 19.

(23)

Section 82(f) was amended by paragraph 5 of Schedule 6 to the Serious Organised Crime and Police Act 2005.

(24)

1986 c. 32.

(25)

1988 c. 33.

(26)

S.I. 1990/2588 (N.I. 17).

(27)

1994 c. 37.

(28)

S.I. 1996/1299 (N.I. 9).