PART I continued
(1) The High Court may make a charging order on realisable property for securing the payment to the Crown—
(a) where a confiscation order has not been made, of an amount equal to the value from time to time of the property charged; and
(b) where a confiscation order has been made, of an amount not exceeding the amount payable under the confiscation order.
(2) For the purposes of this Act a charging order is an order made under this section imposing on any such realisable property as may be specified in the order a charge for securing the payment of money to the Crown.
(3) A charging order—
(a) may be made only on an application by the prosecutor;
(b) may be made on an ex parte application to a judge in chambers;
(c) shall provide for notice to be given to persons affected by the order; and
(d) may be made subject to such conditions as the court thinks fit including, without prejudice to the generality of this paragraph, such conditions as it thinks fit as to the time when the charge is to become effective.
(4) Subject to subsection (6) below, a charge may be imposed by a charging order only on—
(a) any interest in realisable property which is an interest held beneficially by the defendant or by a person to whom the defendant has directly or indirectly made a gift caught by this Act and is an interest—
(i) in any asset of a kind mentioned in subsection (5) below; or
(ii) under any trust; or
(b) any interest in realisable property held by a person as trustee of a trust (“the relevant trust”) if the interest is in such an asset or is an interest under another trust and a charge may by virtue of paragraph (a) above be imposed by a charging order on the whole beneficial interest under the relevant trust.
(5) The assets referred to in subsection (4) above are—
(a) land in England and Wales; or
(b) securities of any of the following kinds—
(i) government stock;
(ii) stock of any body (other than a building society) incorporated within England and Wales;
(iii) stock of any body incorporated outside England and Wales or of any country or territory outside the United Kingdom, being stock registered in a register kept at any place within England and Wales;
(iv) units of any unit trust in respect of which a register of the unit holders is kept at any place within England and Wales.
(6) In any case where a charge is imposed by a charging order on any interest in an asset of a kind mentioned in subsection (5)(b) above, the court may provide for the charge to extend to any interest or dividend payable in respect of the asset.
(7) In relation to a charging order, the court—
(a) may make an order discharging or varying it; and
(b) shall make an order discharging it—
(i) on the conclusion of the proceedings or of the application in question; or
(ii) on payment into court of the amount payment of which is secured by the charge.
(8) An application for the discharge or variation of a charging order may be made by any person affected by it.
(9) In this section “building society”, “dividend”, “government stock”, “stock” and “unit trust” have the same meaning as in the Charging[1979 c. 53.] Orders Act 1979.
(1) The Land[1972 c. 61.] Charges Act 1972 and the Land[1925 c. 21.] Registration Act 1925 shall apply in relation to charging orders as they apply in relation to orders or writs made or issued for the purpose of enforcing judgments.
(2) Where a charging order has been registered under section 6 of the Land Charges Act 1972, subsection (4) of that section (effect of non-registration of writs and orders registrable under that section) shall not apply to an order appointing a receiver made in pursuance of the charging order.
(3) Subject to any provision made under section 29 of this Act or by rules of court, a charge imposed by a charging order shall have the like effect and shall be enforceable in the same courts and in the same manner as an equitable charge created by the person holding the beneficial interest or, as the case may be, the trustees by writing under their hand.
(4) Where a charging order has been protected by an entry registered under the Land Charges Act 1972 or the Land Registration Act 1925, an order under section 27(7) of this Act discharging the charging order may direct that the entry be cancelled.
(5) The Secretary of State may by order made by statutory instrument amend section 27 of this Act by adding to or removing from the kinds of asset for the time being referred to there any asset of a kind which in his opinion ought to be so added or removed.
(6) An order under subsection (5) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(1) Where a confiscation order—
(a) has been made under this Act,
(b) is not satisfied, and
(c) is not subject to appeal,
the High Court or a county court may, on an application by the prosecutor, exercise the powers conferred by subsections (2) to (6) below.
(2) The court may appoint a receiver in respect of realisable property.
(3) The court may empower a receiver appointed under subsection (2) above, under section 26 of this Act or in pursuance of a charging order—
(a) to enforce any charge imposed under section 27 of this Act on realisable property or on interest or dividends payable in respect of such property; and
(b) in relation to any realisable property other than property for the time being subject to a charge under section 27 of this Act, to take possession of the property subject to such conditions or exceptions as may be specified by the court.
(4) The court may order any person having possession of realisable property to give possession of it to any such receiver.
(5) The court may empower any such receiver to realise any realisable property in such manner as the court may direct.
(6) The court may—
(a) order any person holding an interest in realisable property to make to the receiver such payment as it may direct in respect of any beneficial interest held by the defendant or, as the case may be, the recipient of a gift caught by this Act; and
(b) on the payment being made, by order transfer, grant or extinguish any interest in the property.
(7) Subsections (4) to (6) above do not apply to property for the time being subject to a charge under section 27 of this Act or section 9 of the Drug[1986 c. 32.] Trafficking Offences Act 1986.
(8) The court shall not in respect of any property exercise the powers conferred by subsection (3)(a), (5) or (6) above unless a reasonable opportunity has been given for persons holding any interest in the property to make representations to the court.
(1) The following sums in the hands of a receiver appointed under section 26 or 29 of this Act or in pursuance of a charging order, that is—
(a) the proceeds of the enforcement of any charge imposed under section 27 of this Act,
(b) the proceeds of the realisation, other than by the enforcement of such a charge, of any property under section 26 or 29 of this Act, and
(c) any other sums, being property held by the defendant,
shall be applied, subject to subsection (2) below, on the defendant’s behalf towards the satisfaction of the confiscation order.
(2) Before any such sums are so applied they shall be applied—
(a) first, in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under section 35(3) of this Act; and
(b) second, in making such payments (if any) as the High Court or a county court may direct.
(3) If, after the amount payable under the confiscation order has been fully paid, any such sums remain in the hands of such a receiver as is mentioned in subsection (1) above, the receiver shall distribute those sums—
(a) among such of those who held property which has been realised under this Act, and
(b) in such proportions,
as the High Court or a county court may direct after giving a reasonable opportunity for such persons to make representations to the court.
(4) The receipt of any sum by a justices' clerk on account of an amount payable under a confiscation order shall reduce the amount so payable, but the justices' clerk shall apply the money received for the purposes specified in this section and in the order so specified.
(5) The justices' clerk shall first pay any expenses incurred by a person acting as an insolvency practitioner and payable under section 35(3) of this Act but not already paid under subsection (2) above.
(6) If the money was paid to the justices' clerk by a receiver appointed under section 26 or 29 of this Act or in pursuance of a charging order the justices' clerk shall next pay the receiver’s remuneration and expenses.
(7) After making—
(a) any payment required by subsection (5) above, and
(b) in a case to which subsection (6) above applies, any payment required by that subsection,
the justices' clerk shall reimburse any amount paid under section 36(2) of this Act.
(8) Any balance in the hands of the justices' clerk after he has made all payments required by the preceding provisions of this section shall be treated for the purposes of section 61 of the Justices[1979 c. 55.] of the Peace Act 1979 (application of fines, etc.) as if it were a fine imposed by a magistrates' court.
(9) In this section “justices' clerk” has the same meaning as in the Justices of the Peace Act 1979.
(1) The following provisions apply to the powers conferred—
(a) on the High Court or a county court by sections 26 to 30 of this Act; or
(b) on a receiver appointed under section 26 or 29 of this Act or in pursuance of a charging order.
(2) Subject to the following provisions of this section, the powers shall be exercised with a view to making available for satisfying the confiscation order or, as the case may be, any confiscation order that may be made in the defendant’s case, the value for the time being of realisable property held by any person, by means of the realisation of such property.
(3) In the case of realisable property held by a person to whom the defendant has directly or indirectly made a gift caught by this Act, the powers shall be exercised with a view to realising no more than the value for the time being of the gift.
(4) The powers shall be exercised with a view to allowing any person other than the defendant or the recipient of any such gift to retain or recover the value of any property held by him.
(5) In exercising the powers, no account shall be taken of any obligations of the defendant or of the recipient of any such gift which conflict with the obligation to satisfy the confiscation order.
(6) An order may be made or other action taken in respect of a debt owed by the Crown.
(1) Where a person who holds realisable property is adjudged bankrupt—
(a) property for the time being subject to a restraint order made before the order adjudging him bankrupt, and
(b) any proceeds of property realised by virtue of section 26(7) or 29(5) or (6) of this Act for the time being in the hands of a receiver appointed under section 26 or 29 of this Act,
is excluded from the bankrupt’s estate for the purposes of Part IX of the Insolvency[1986 c. 45.] Act 1986 (“the 1986 Act”).
(2) Where a person has been adjudged bankrupt, the powers conferred on the High Court or a county court by sections 26 to 30 of this Act or on a receiver so appointed shall not be exercised in relation to—
(a) property for the time being comprised in the bankrupt’s estate for the purposes of Part IX of the 1986 Act;
(b) property in respect of which his trustee in bankruptcy may (without leave of the court) serve a notice under section 307, 308 or 308A of that Act (after-acquired property and tools, clothes etc. exceeding value of reasonable replacement, and certain tenancies); and
(c) property which is to be applied for the benefit of creditors of the bankrupt by virtue of a condition imposed under section 280(2)(c) of that Act;
but nothing in that Act shall be taken as restricting, or enabling the restriction of, the exercise of those powers.
(3) Subsection (2) above does not affect the enforcement of a charging order—
(a) made before the order adjudging the person bankrupt; or
(b) on property which was subject to a restraint order when the order adjudging him bankrupt was made.
(4) Where, in the case of a debtor, an interim receiver stands appointed under section 286 of the 1986 Act and any property of the debtor is subject to a restraint order, the powers conferred on the receiver by virtue of that Act do not apply to property for the time being subject to the restraint order.
(5) Where a person is adjudged bankrupt and has directly or indirectly made a gift caught by this Act—
(a) no order shall be made under section 339 or 423 of the 1986 Act (avoidance of certain transactions), in respect of the making of the gift, at any time when—
(i) proceedings for a drug trafficking offence have been instituted against him and have not been concluded;
(ii) an application has been made in respect of the defendant under section 13, 14, 15, 16 or 19 of this Act and has not been concluded; or
(iii) property of the person to whom the gift was made is subject to a restraint order or charging order; and
(b) any order made under section 339 or 423 after the conclusion of the proceedings or of the application shall take into account any realisation under this Act of property held by the person to whom the gift was made.
(1) Where the estate of a person who holds realisable property is sequestrated—
(a) property for the time being subject to a restraint order made before the award of sequestration, and
(b) any proceeds of property realised by virtue of section 26(7) or 29(5) or (6) of this Act for the time being in the hands of a receiver appointed under section 26 or 29 of this Act,
is excluded from the debtor’s estate for the purposes of the Bankruptcy[1985 c. 66.] (Scotland) Act 1985 (“the 1985 Act”).
(2) Where an award of sequestration has been made, the powers conferred on the High Court or a county court by sections 26 to 30 of this Act or on a receiver so appointed shall not be exercised in relation to—
(a) property comprised in the whole estate of the debtor within the meaning of section 31(8) of the 1985 Act; and
(b) any income of the debtor which has been ordered, under section 32(2) of that Act, to be paid to the permanent trustee or any estate which, under section 31(10) or 32(6) of that Act, vests in the permanent trustee;
and it shall not be competent to submit a claim in relation to the confiscation order to the permanent trustee in accordance with section 48 of that Act.
(3) Nothing in the 1985 Act shall be taken as restricting, or enabling the restriction of, the exercise of the powers mentioned in subsection (2) above.
(4) Subsection (2) above does not affect the enforcement of a charging order—
(a) made before the award of sequestration; or
(b) on property which was subject to a restraint order when the award of sequestration was made.
(5) Where, during the period before sequestration is awarded—
(a) an interim trustee stands appointed under section 2(5) of the 1985 Act, and
(b) any property in the debtor’s estate is subject to a restraint order,
the powers conferred on the trustee by virtue of that Act do not apply to property for the time being subject to the restraint order.
(6) Where the estate of a person is sequestrated and he has directly or indirectly made a gift caught by this Act—
(a) no decree shall be granted under section 34 or 36 of the 1985 Act (gratuitous alienations and unfair preferences), in respect of the making of the gift, at any time when—
(i) proceedings for a drug trafficking offence have been instituted against him and have not been concluded;
(ii) an application has been made in respect of the defendant under section 13, 14, 15, 16 or 19 of this Act and has not been concluded; or
(iii) property of the person to whom the gift was made is subject to a restraint order or charging order; and
(b) any decree made under section 34 or 36 after the conclusion of the proceedings or of the application shall take into account any realisation under this Act of property held by the person to whom the gift was made.
(7) In any case in which, notwithstanding the coming into force of the 1985 Act, the Bankruptcy[1913 c. 20.] (Scotland) Act 1913 applies to a sequestration, subsection (2) above shall have effect as if for paragraphs (a) and (b) there were substituted—
“(a) property comprised in the whole property of the debtor which vests in the trustee under section 97 of the Bankruptcy (Scotland) Act 1913; and
(b) any income of the bankrupt which has been ordered under subsection (2) of section 98 of that Act to be paid to the trustee, or any estate which, under subsection (1) of that section, vests in the trustee;”and subsection (3) above shall have effect as if for the reference in that subsection to the 1985 Act there were substituted a reference to the Act of 1913.
(1) Where realisable property is held by a company and an order for the winding up of the company has been made or a resolution has been passed by the company for the voluntary winding up of the company, the functions of the liquidator (or any provisional liquidator) shall not be exercisable in relation to—
(a) property for the time being subject to a restraint order made before the relevant time; and
(b) any proceeds of property realised by virtue of section 26(7) or 29(5) or (6) of this Act for the time being in the hands of a receiver appointed under section 26 or 29 of this Act.
(2) Where, in the case of a company, such an order has been made or such a resolution has been passed, the powers conferred on the High Court or a county court by sections 26 to 30 of this Act or on a receiver so appointed shall not be exercised in relation to any realisable property held by the company in relation to which the functions of the liquidator are exercisable—
(a) so as to inhibit him from exercising those functions for the purpose of distributing any property held by the company to the company’s creditors; or
(b) so as to prevent the payment out of any property of expenses (including the remuneration of the liquidator or any provisional liquidator) properly incurred in the winding up in respect of the property;
but nothing in the Insolvency[1986 c. 45.] Act 1986 shall be taken as restricting, or enabling the restriction of, the exercise of those powers.
(3) Subsection (2) above does not affect the enforcement of a charging order made before the relevant time or on property which was subject to a restraint order at the relevant time.
(4) In this section—
“company” means any company which may be wound up under the Insolvency Act 1986; and
“the relevant time” means—
where no order for the winding up of the company has been made, the time of the passing of the resolution for voluntary winding up;
where—
such an order has been made, but
before the presentation of the petition for the winding up of the company by the court, such a resolution had been passed by the company,
the time of the passing of the resolution; and
in any other case where such an order has been made, the time of the making of the order.
(1) Without prejudice to the generality of any enactment contained in the Insolvency Act 1986 or in any other Act, where—
(a) any person acting as an insolvency practitioner seizes or disposes of any property in relation to which his functions are not exercisable because it is for the time being subject to a restraint order, and
(b) at the time of the seizure or disposal he believes, and has reasonable grounds for believing, that he is entitled (whether in pursuance of an order of the court or otherwise) to seize or dispose of that property,
he shall not be liable to any person in respect of any loss or damage resulting from the seizure or disposal except in so far as the loss or damage is caused by his negligence in so acting.
(2) A person acting as an insolvency practitioner shall, in the circumstances mentioned in subsection (1)(a) and (b) above, have a lien on the property, or the proceeds of its sale, for such of his expenses as were incurred in connection with the liquidation, bankruptcy or other proceedings in relation to which the seizure or disposal purported to take place and for so much of his remuneration as may reasonably be assigned for his acting in connection with those proceedings.
(3) Where a person acting as an insolvency practitioner—
(a) incurs expenses in respect of such property as is mentioned in paragraph (a) of subsection (1) above and in so doing does not know and has no reasonable grounds to believe that the property is for the time being subject to a restraint order, or
(b) incurs expenses other than expenses in respect of such property as is so mentioned, being expenses which, but for the effect of a restraint order, might have been met by taking possession of and realising the property,
that person shall be entitled (whether or not he has seized or disposed of that property so as to have a lien under subsection (2) above) to payment of those expenses under section 30(2) or (5) of this Act.
(4) In this Act the expression “acting as an insolvency practitioner” shall be construed in accordance with section 388 of the Insolvency[1986 c. 45.] Act 1986 (interpretation) except that for the purposes of such construction—
(a) the reference in subsection (2)(a) of that section to a permanent or interim trustee in sequestration shall be taken to include a reference to a trustee in sequestration; and
(b) subsection (5) of that section (which includes provision to the effect that nothing in the section is to apply to anything done by the official receiver) shall be disregarded;
and the expression shall also comprehend the official receiver acting as receiver or manager of the property.
(1) Where a receiver appointed under section 26 or 29 of this Act or in pursuance of a charging order—
(a) takes any action in relation to property which is not realisable property, being action which he would be entitled to take if it were such property, and
(b) believes, and has reasonable grounds for believing, that he is entitled to take that action in relation to that property,
he shall not be liable to any person in respect of any loss or damage resulting from his action except in so far as the loss or damage is caused by his negligence.
(2) Any amount due in respect of the remuneration and expenses of a receiver so appointed shall, if no sum is available to be applied in payment of it under section 30(6) of this Act, be paid by the prosecutor or, in a case where proceedings for a drug trafficking offence are not instituted, by the person on whose application the receiver was appointed.
(1) Her Majesty may by Order in Council make such provision as Her Majesty considers expedient for the purpose—
(a) of enabling property in England and Wales which is realisable property for the purposes of Part I of the Criminal[1987 c. 41.] Justice (Scotland) Act 1987 to be used or realised for the payment of any amount payable under a confiscation order made under that Part of that Act; and
(b) of securing that, where no confiscation order has been made under that Part of that Act, property in England and Wales which is realisable property for the purposes of that Part of that Act is available, in the event that such an order is so made, to be used or realised for the payment of any amount payable under it.
(2) Without prejudice to the generality of the power conferred by subsection (1) above, an Order in Council under this section may—
(a) provide that, subject to any specified conditions—
(i) the functions of a person appointed under section 13 of the Criminal[1987 c. 41.] Justice (Scotland) Act 1987, and
(ii) such descriptions of orders made under or for the purposes of Part I of that Act as may be specified,
shall have effect in the law of England and Wales;
(b) make provision—
(i) for the registration in the High Court of such descriptions of orders made under or for the purposes of that Part of that Act as may be specified; and
(ii) for the High Court to have, in relation to the enforcement of orders made under or for the purposes of that Part of that Act which are so registered, such powers as may be specified; and
(c) make provision as to the proof in England and Wales of orders made under or for the purposes of that Part of that Act.
(3) In subsection (2) above “specified” means specified in an Order in Council under this section.
(4) An Order in Council under this section may amend or apply, with or without modifications, any enactment.
(5) An Order in Council under this section may contain such incidental, consequential and transitional provisions as Her Majesty considers expedient.
(6) An Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(1) Her Majesty may by Order in Council provide that, for the purposes of sections 17 and 25 to 36 of this Act, this Act shall have effect as if—
(a) references to confiscation orders included a reference to orders made by courts in Northern Ireland which appear to Her Majesty to correspond to confiscation orders;
(b) references to drug trafficking offences included a reference to any offence under the law of Northern Ireland (not being a drug trafficking offence) which appears to Her Majesty to correspond to such an offence;
(c) references to proceedings in England and Wales or to the institution or conclusion in England and Wales of proceedings included a reference to proceedings in Northern Ireland or to the institution or conclusion in Northern Ireland of proceedings, as the case may be; and
(d) the references to the laying of an information in section 25(3) and (5) of this Act included references to making a complaint under Article 20 of the Magistrates'[S.I. 1981/1675 (N.I. 26).] Courts (Northern Ireland) Order 1981.
(2) An Order in Council under this section may provide for those sections to have effect, in relation to anything done or to be done in Northern Ireland, subject to such further modifications as may be specified in the order.
(3) An Order in Council under this section may contain such incidental, consequential and transitional provisions as Her Majesty considers expedient.
(4) An Order in Council under this section may, in particular, provide for section 18 of the Civil[1982 c. 27.] Jurisdiction and Judgments Act 1982 (enforcement of United Kingdom judgments in other parts of the United Kingdom) not to apply in relation to such orders as may be prescribed by the Order.
(5) An Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(1) Her Majesty may by Order in Council—
(a) direct in relation to a country or territory outside the United Kingdom designated by the Order (a “designated country”) that, subject to such modifications as may be specified, the relevant provisions of this Act shall apply to external confiscation orders and to proceedings which have been or are to be instituted in the designated country and may result in an external confiscation order being made there;
(b) make—
(i) such provision in connection with the taking of action in the designated country with a view to satisfying a confiscation order,
(ii) such provision as to evidence or proof of any matter for the purposes of this section and section 40 of this Act, and
(iii) such incidental, consequential and transitional provision,
as appears to Her Majesty to be expedient; and
(c) (without prejudice to the generality of this subsection) direct that, in such circumstances as may be specified, proceeds which arise out of action taken in the designated country with a view to satisfying a confiscation order shall be treated as reducing the amount payable under the order to such extent as may be specified.
(2) In this section “external confiscation order” means an order made by a court in a designated country for the purpose of recovering, or recovering the value of, payments or other rewards received in connection with drug trafficking.
(3) An Order in Council under this section may make different provision for different cases or classes of case.
(4) The power to make an Order in Council under this section includes power to modify the relevant provisions of this Act in such a way as to confer power on a person to exercise a discretion.
(5) An Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(6) For the purposes of this section, “the relevant provisions of this Act” are this Part, except sections 10 and 16, and Part IV.
(1) On an application made by or on behalf of the Government of a designated country, the High Court may register an external confiscation order made there if—
(a) it is satisfied that at the time of registration the order is in force and not subject to appeal;
(b) it is satisfied, where the person against whom the order is made did not appear in the proceedings, that he received notice of the proceedings in sufficient time to enable him to defend them; and
(c) it is of the opinion that enforcing the order in England and Wales would not be contrary to the interests of justice.
(2) In subsection (1) above “appeal” includes—
(a) any proceedings by way of discharging or setting aside a judgment; and
(b) an application for a new trial or a stay of execution.
(3) The High Court shall cancel the registration of an external confiscation order if it appears to the court that the order has been satisfied by payment of the amount due under it.
(4) In this section “designated country” and “external confiscation order” have the same meaning as in section 39 of this Act.