Office of Public Sector Information
PART 2 continued CHAPTER 4 continued
(8) Subsection (9) applies if—
(a) at any time before the commencement of section 82, arrangements were made by a person specified in subsection (11), or any person acting with the authority of such a person, for the purpose of protecting a person of a description specified in Schedule 5, and
(b) functions in relation to the arrangements are, at any time before the end of the period of six months mentioned in subsection (6), exercisable by a protection provider.
(9) The provision made by subsections (1) to (7) applies in relation to the arrangements as if they had been made by the protection provider.
(10) Accordingly, if the three conditions mentioned in subsections (3) to (5) are satisfied in relation to the arrangements, they are to be treated, by virtue of subsection (2), as having been made by the protection provider under section 82(1).
(11) The persons specified in this subsection are—
(a) the Director General of the National Criminal Intelligence Service;
(b) the Director General of the National Crime Squad;
(c) any of the Commissioners of Her Majesty’s Customs and Excise.
(1) In this section—
(a) “the arrangements” are arrangements which are treated as having been made by a protection provider by virtue of section 91(2), and
(b) “the relevant date” is the date of the record made by the protection provider, in relation to the arrangements, in pursuance of section 91(7).
(2) A person does not commit an offence under section 86(1) by disclosing information relating to the arrangements unless the information is disclosed on or after the relevant date.
(3) But it is immaterial whether the information relates to something done in connection with the arrangements before or on or after the relevant date.
(4) A person does not commit an offence under section 88(1) or (2) by disclosing information relating to a person who assumed a new identity in pursuance of the arrangements unless the information is disclosed on or after the relevant date.
(5) But it is immaterial whether the person assumed a new identity before or on or after the relevant date.
(6) Section 90 applies in relation to a false or misleading representation relating to a person who assumed a new identity in pursuance of the arrangements only if the false or misleading representation is made on or after the relevant date.
(7) But it is immaterial whether the person assumed a new identity before or on or after the relevant date.
(1) This section applies if—
(a) a protection provider makes arrangements under section 82(1), or
(b) a protection provider determines under section 91(5) that it is appropriate to treat arrangements to which that section applies as having been made under section 82(1).
(2) The protection provider must inform the person to whom the arrangements relate of the provisions of this Chapter as they apply in relation to the arrangements.
(3) If the protection provider considers that the person would be unable to understand the information, by reason of his age or of any incapacity, the information must instead be given to a person who appears to the protection provider—
(a) to be interested in the welfare of the person to whom the arrangements relate, and
(b) to be the appropriate person to whom to give the information.
(4) If arrangements are made jointly under section 82(1) (by virtue of section 83), the protection providers involved in the arrangements must nominate one of those protection providers to perform the duties imposed by this section.
(1) This section applies for the purposes of this Chapter.
(2) “Protection provider” is to be construed in accordance with section 82.
(3) A person is a protected person if—
(a) arrangements have been made for his protection under subsection (1) of section 82, and
(b) the arrangements have not been cancelled under subsection (2) of that section.
(4) A person is associated with another person if any of the following apply—
(a) they are members of the same family;
(b) they live in the same household;
(c) they have lived in the same household.
(5) A person assumes a new identity if either or both of the following apply—
(a) he becomes known by a different name;
(b) he makes representations about his personal history or circumstances which are false or misleading.
(6) A reference to a person who is a witness in legal proceedings includes a reference to a person who provides any information or any document or other thing which might be used in evidence in those proceedings or which (whether or not admissible as evidence in those proceedings)—
(a) might tend to confirm evidence which will or might be admitted in those proceedings,
(b) might be referred to in evidence given in those proceedings by another witness, or
(c) might be used as the basis for any cross examination in the course of those proceedings,
and a reference to a person who might be, or to a person who has been, a witness in legal proceedings is to be construed accordingly.
(7) A reference to a person who is a witness in legal proceedings does not include a reference to a person who is an accused person in criminal proceedings unless he is a witness for the prosecution and a reference to a person who might be, or to a person who has been, a witness in legal proceedings is to be construed accordingly.
(8) A reference to a person who is or has been a member of staff of an organisation includes a reference to a person who is or has been seconded to the organisation to serve as a member of its staff.
(9) “The Scottish Drug Enforcement Agency” and “the Director” of that Agency have the meanings given by section 42(2).
In section 9 of the Criminal Justice (International Co-operation) Act 1990 (c. 5) (enforcement of overseas forfeiture orders), for subsection (6) (offences to which section applies) substitute—
“(6) This section applies to any offence that corresponds to or is similar to—
(a) an offence under the law of England and Wales;
(b) an offence under the law of Scotland; or
(c) an offence under the law of Northern Ireland.”
(1) The Secretary of State or the Scottish Ministers may by order make provision—
(a) for the purpose of implementing any obligation of the United Kingdom created or arising by or under the Decision or enabling any such obligation to be implemented,
(b) for the purpose of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Decision to be exercised, or
(c) for the purpose of dealing with matters arising out of or related to any such obligation or rights.
(2) In subsection (1) “the Decision” means Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence.
(3) The provision that may be made under subsection (1) by the Secretary of State includes, subject to subsections (5) and (7), any provision (of any extent) that might be made by Act of Parliament.
(4) The provision that may be made under subsection (1) by the Scottish Ministers includes, subject to subsections (6) and (7), any provision that might be made by Act of the Scottish Parliament.
(5) The power conferred by subsection (1) on the Secretary of State does not include power to make provision that would be within the legislative competence of the Scottish Parliament if it were included in an Act of that Parliament.
(6) The power conferred by subsection (1) on the Scottish Ministers is limited to the making of provision that would be within the legislative competence of the Scottish Parliament if it were included in an Act of that Parliament.
(7) The powers conferred by subsection (1) do not include power—
(a) to make any provision imposing or increasing taxation,
(b) to make any provision taking effect from a date earlier than that of the making of the instrument containing the provision,
(c) to confer any power to legislate by means of orders, rules, regulations or other subordinate instrument, other than rules of procedure for a court or tribunal, or
(d) to create criminal offences.
(8) Subsection (7)(c) does not preclude—
(a) the modification of a power to legislate conferred otherwise than under subsection (1), or
(b) the extension of any such power to purposes of the like nature as those for which it was conferred,
and a power to give directions as to matters of administration is not to be regarded as a power to legislate within the meaning of subsection (7)(c).
(1) The Secretary of State may by order make such provision as he considers appropriate for or in connection with enabling confiscation orders under—
(a) Part 2 of the Proceeds of Crime Act 2002 (c. 29) (confiscation: England and Wales), or
(b) Part 4 of that Act (confiscation: Northern Ireland),
to be made by magistrates' courts in England and Wales or Northern Ireland (as the case may be).
(2) But an order under subsection (1) may not enable such a confiscation order to be made by any magistrates' court in respect of an amount exceeding £10,000.
(3) An order under subsection (1) may amend, repeal, revoke or otherwise modify any provision of Part 2 or 4 of the 2002 Act or any other enactment relating to, or to things done under or for the purposes of, either (or any provision) of those Parts.
(1) In the Proceeds of Crime Act 2002 (c. 29), after section 245 insert—
(1) Where the enforcement authority may take proceedings for a recovery order in the High Court, the authority may apply to the court for a property freezing order (whether before or after starting the proceedings).
(2) A property freezing order is an order that—
(a) specifies or describes the property to which it applies, and
(b) subject to any exclusions (see section 245C(1)(b) and (2)), prohibits any person to whose property the order applies from in any way dealing with the property.
(3) An application for a property freezing order may be made without notice if the circumstances are such that notice of the application would prejudice any right of the enforcement authority to obtain a recovery order in respect of any property.
(4) The court may make a property freezing order on an application if it is satisfied that the condition in subsection (5) is met and, where applicable, that the condition in subsection (6) is met.
(5) The first condition is that there is a good arguable case—
(a) that the property to which the application for the order relates is or includes recoverable property, and
(b) that, if any of it is not recoverable property, it is associated property.
(6) The second condition is that, if—
(a) the property to which the application for the order relates includes property alleged to be associated property, and
(b) the enforcement authority has not established the identity of the person who holds it,
the authority has taken all reasonable steps to do so.
(1) The court may at any time vary or set aside a property freezing order.
(2) If the court makes an interim receiving order that applies to all of the property to which a property freezing order applies, it must set aside the property freezing order.
(3) If the court makes an interim receiving order that applies to some but not all of the property to which a property freezing order applies, it must vary the property freezing order so as to exclude any property to which the interim receiving order applies.
(4) If the court decides that any property to which a property freezing order applies is neither recoverable property nor associated property, it must vary the order so as to exclude the property.
(5) Before exercising power under this Chapter to vary or set aside a property freezing order, the court must (as well as giving the parties to the proceedings an opportunity to be heard) give such an opportunity to any person who may be affected by its decision.
(6) Subsection (5) does not apply where the court is acting as required by subsection (2) or (3).
(1) The power to vary a property freezing order includes (in particular) power to make exclusions as follows—
(a) power to exclude property from the order, and
(b) power, otherwise than by excluding property from the order, to make exclusions from the prohibition on dealing with the property to which the order applies.
(2) Exclusions from the prohibition on dealing with the property to which the order applies (other than exclusions of property from the order) may also be made when the order is made.
(3) An exclusion may, in particular, make provision for the purpose of enabling any person—
(a) to meet his reasonable living expenses, or
(b) to carry on any trade, business, profession or occupation.
(4) An exclusion may be made subject to conditions.
(5) Where the court exercises the power to make an exclusion for the purpose of enabling a person to meet legal expenses that he has incurred, or may incur, in respect of proceedings under this Part, it must ensure that the exclusion—
(a) is limited to reasonable legal expenses that the person has reasonably incurred or that he reasonably incurs,
(b) specifies the total amount that may be released for legal expenses in pursuance of the exclusion, and
(c) is made subject to the required conditions (see section 286A) in addition to any conditions imposed under subsection (4).
(6) The court, in deciding whether to make an exclusion for the purpose of enabling a person to meet legal expenses of his in respect of proceedings under this Part—
(a) must have regard (in particular) to the desirability of the person being represented in any proceedings under this Part in which he is a participant, and
(b) must, where the person is the respondent, disregard the possibility that legal representation of the person in any such proceedings might, were an exclusion not made, be funded by the Legal Services Commission or the Northern Ireland Legal Services Commission.
(7) If excluded property is not specified in the order it must be described in the order in general terms.
(8) The power to make exclusions must, subject to subsection (6), be exercised with a view to ensuring, so far as practicable, that the satisfaction of any right of the enforcement authority to recover the property obtained through unlawful conduct is not unduly prejudiced.
(9) Subsection (8) does not apply where the court is acting as required by section 245B(3) or (4).
(1) While a property freezing order has effect—
(a) the court may stay any action, execution or other legal process in respect of the property to which the order applies, and
(b) no distress may be levied against the property to which the order applies except with the leave of the court and subject to any terms the court may impose.
(2) If a court (whether the High Court or any other court) in which proceedings are pending in respect of any property is satisfied that a property freezing order has been applied for or made in respect of the property, it may either stay the proceedings or allow them to continue on any terms it thinks fit.
(3) If a property freezing order applies to a tenancy of any premises, no landlord or other person to whom rent is payable may exercise the 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, except with the leave of the court and subject to any terms the court may impose.
(4) Before exercising any power conferred by this section, the court must (as well as giving the parties to any of the proceedings concerned an opportunity to be heard) give such an opportunity to any person who may be affected by the court’s decision.”
(2) In the Proceeds of Crime Act 2002 (c. 29), after section 255 insert—
(1) Where the enforcement authority may take proceedings for a recovery order in the Court of Session, the authority may apply to the court for a prohibitory property order (whether before or after starting the proceedings).
(2) A prohibitory property order is an order that—
(a) specifies or describes the property to which it applies, and
(b) subject to any exclusions (see section 255C(1)(b) and (2)), prohibits any person to whose property the order applies from in any way dealing with the property.
(3) An application for a prohibitory property order may be made without notice if the circumstances are such that notice of the application would prejudice any right of the enforcement authority to obtain a recovery order in respect of any property.
(4) The court may make a prohibitory property order on an application if it is satisfied that the condition in subsection (5) is met and, where applicable, that the condition in subsection (6) is met.
(5) The first condition is that there is a good arguable case—
(a) that the property to which the application for the order relates is or includes recoverable property, and
(b) that, if any of it is not recoverable property, it is associated property.
(6) The second condition is that, if—
(a) the property to which the application for the order relates includes property alleged to be associated property, and
(b) the enforcement authority has not established the identity of the person who holds it,
the authority has taken all reasonable steps to do so.
(1) The court may at any time vary or recall a prohibitory property order.
(2) If the court makes an interim administration order that applies to all of the property to which a prohibitory property order applies, it must recall the prohibitory property order.
(3) If the court makes an interim administration order that applies to some but not all of the property to which a prohibitory property order applies, it must vary the prohibitory property order so as to exclude any property to which the interim administration order applies.
(4) If the court decides that any property to which a prohibitory property order applies is neither recoverable property nor associated property, it must vary the order so as to exclude the property.
(5) Before exercising power under this Chapter to vary or recall a prohibitory property order, the court must (as well as giving the parties to the proceedings an opportunity to be heard) give such an opportunity to any person who may be affected by its decision.
(6) Subsection (5) does not apply where the court is acting as required by subsection (2) or (3).
(1) The power to vary a prohibitory property order includes (in particular) power to make exclusions as follows—
(a) power to exclude property from the order, and
(b) power, otherwise than by excluding property from the order, to make exclusions from the prohibition on dealing with the property to which the order applies.
(2) Exclusions from the prohibition on dealing with the property to which the order applies (other than exclusions of property from the order) may also be made when the order is made.
(3) An exclusion may, in particular, make provision for the purpose of enabling any person—
(a) to meet his reasonable living expenses, or
(b) to carry on any trade, business, profession or occupation.
(4) An exclusion may be made subject to conditions.
(5) An exclusion may not be made for the purpose of enabling any person to meet any legal expenses in respect of proceedings under this Part.
(6) If excluded property is not specified in the order it must be described in the order in general terms.
(7) The power to make exclusions must be exercised with a view to ensuring, so far as practicable, that the satisfaction of any right of the enforcement authority to recover the property obtained through unlawful conduct is not unduly prejudiced.
(8) Subsection (7) does not apply where the court is acting as required by section 255B(3) or (4).
(1) While a prohibitory property order has effect the court may sist any action, execution or other legal process in respect of the property to which the order applies.
(2) If a court (whether the Court of Session or any other court) in which proceedings are pending in respect of any property is satisfied that a prohibitory property order has been applied for or made in respect of the property, it may either sist the proceedings or allow them to continue on any terms it thinks fit.
(3) Before exercising any power conferred by this section, the court must (as well as giving the parties to any of the proceedings concerned an opportunity to be heard) give such an opportunity to any person who may be affected by the court’s decision.
(1) On the application of the enforcement authority the Court of Session may, in relation to moveable recoverable property to which a prohibitory property order applies (whether generally or to such of it as is specified in the application), grant warrant for arrestment.
(2) An application under subsection (1) may be made at the same time as the application for the prohibitory property order or at any time thereafter.
(3) Such a warrant for arrestment may be granted only if the property would be arrestable if the person entitled to it were a debtor.
(4) A warrant under subsection (1) has effect as if granted on the dependence of an action for debt at the instance of the enforcement authority against the person and may be executed, recalled, loosed or restricted accordingly.
(5) An arrestment executed under this section ceases to have effect when, or in so far as, the prohibitory property order ceases to apply in respect of the property in relation to which the warrant for arrestment was granted.
(6) If an arrestment ceases to have effect to any extent by virtue of subsection (5) the enforcement authority must apply to the Court of Session for an order recalling or, as the case may be, restricting the arrestment.
(1) On the application of the enforcement authority, the Court of Session may, in relation to the property mentioned in subsection (2), grant warrant for inhibition against any person specified in a prohibitory property order.
(2) That property is heritable property situated in Scotland to which the prohibitory property order applies (whether generally or to such of it as is specified in the application).
(3) The warrant for inhibition—
(a) has effect as if granted on the dependence of an action for debt by the enforcement authority against the person and may be executed, recalled, loosed or restricted accordingly, and
(b) has the effect of letters of inhibition and must forthwith be registered by the enforcement authority in the register of inhibitions and adjudications.
(4) Section 155 of the Titles to Land Consolidation (Scotland) Act 1868 (c. 101) (effective date of inhibition) applies in relation to an inhibition for which warrant is granted under subsection (1) as it applies to an inhibition by separate letters or contained in a summons.
(5) An inhibition executed under this section ceases to have effect when, or in so far as, the prohibitory property order ceases to apply in respect of the property in relation to which the warrant for inhibition was granted.
(6) If an inhibition ceases to have effect to any extent by virtue of subsection (5) the enforcement authority must—
(a) apply for the recall or, as the case may be, the restriction of the inhibition, and
(b) ensure that the recall or restriction is reflected in the register of inhibitions and adjudications.”
(1) The Proceeds of Crime Act 2002 (c. 29) is amended as follows.
(2) In section 280 (civil recovery orders: applying realised proceeds), after subsection (2) insert—
“(3) The Director may apply a sum received by him under subsection (2) in making payment of the remuneration and expenses of—
(a) the trustee, or
(b) any interim receiver appointed in, or in anticipation of, the proceedings for the recovery order.
(4) Subsection (3)(a) does not apply in relation to the remuneration of the trustee if the trustee is a member of the staff of the Agency.”
(3) In section 284 (payment of interim administrator or trustee (Scotland))—
(a) the existing words become subsection (1), and
(b) after that subsection insert—
“(2) The Scottish Ministers may apply a sum received by them under section 280(2) in making payment of such fees or expenses.
(3) Subsection (2) does not apply in relation to the fees of a trustee for civil recovery if the trustee is a member of their staff.”
(4) In paragraph 5 of Schedule 1 (finances of the Assets Recovery Agency), after sub-paragraph (1) (paragraph (b) of which provides for the expenses of the Director and staff of the Agency to be paid out of money provided by Parliament) insert—
“(1A) Sub-paragraph (1)(b) has effect subject to anything in this Act.”
(1) In the Proceeds of Crime Act 2002 (c. 29), Chapter 3 of Part 5 (civil recovery of cash in summary proceedings) is amended as follows.
(2) In section 295 (detention of seized cash, initially for 48 hours), after subsection (1) insert—
“(1A) The period of 48 hours mentioned in subsection (1) is to be calculated in accordance with subsection (1B).
(1B) In calculating a period of 48 hours in accordance with this subsection, no account shall be taken of—
(a) any Saturday or Sunday,
(b) Christmas Day,
(c) Good Friday,
(d) any day that is a bank holiday under the Banking and Financial Dealings Act 1971 in the part of the United Kingdom within which the cash is seized, or
(e) any day prescribed under section 8(2) of the Criminal Procedure (Scotland) Act 1995 as a court holiday in a sheriff court in the sheriff court district within which the cash is seized.”
(3) In sections 290(6), 296(1) and 302(2), after “48 hours” insert “(calculated in accordance with section 295(1B))”.
(1) For section 299 of the Proceeds of Crime Act 2002 (appeal against forfeiture of cash) substitute—
(1) Any party to proceedings for an order for the forfeiture of cash under section 298 who is aggrieved by an order under that section or by the decision of the court not to make such an order may appeal—
(a) in relation to England and Wales, to the Crown Court;
(b) in relation to Scotland, to the Sheriff Principal;
(c) in relation to Northern Ireland, to a county court.
(2) An appeal under subsection (1) must be made before the end of the period of 30 days starting with the day on which the court makes the order or decision.
(3) The court hearing the appeal may make any order it thinks appropriate.
(4) If the court upholds an appeal against an order forfeiting the cash, it may order the release of the cash.”
(2) This section does not apply to a decision of a court not to order the forfeiture of cash under section 298 of that Act taken before this section comes into force.
Serious Organised Crime and Police Act 2005