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The Criminal Justice (Confiscation)(Northern Ireland) Order 1990

Status:

This is the original version (as it was originally made).

Interpretation

2.—(1) The [1954 c. 33 (N.I.)] Interpretation Act (Northern Ireland) 1954 shall apply to Article 1 and the following provisions of this Order as it applies to a Measure of the Northern Ireland Assembly.

(2) In this Order—

“authorised government department” means a government department or a Northern Ireland department which is an authorised department for the purposes of the [1947 c. 44] Crown Proceedings Act 1947;

“charging order” means an order made under Article 14 imposing on any such realisable property as may be specified in the order a charge for securing the payment of money to the Crown;

“constable” includes a person commissioned by the Commissioners of Customs and Excise;

“confiscation order” means an order made by a court under Article 4 or 5;

“corresponding law” has the same meaning as in the [1971 c. 38] Misuse of Drugs Act 1971;

“the defendant” means a person against whom proceedings have been instituted for an offence to which this Order applies (whether or not he has been convicted);

“drug trafficking” means doing or being concerned in any of the following, whether in Northern Ireland or elsewhere—

(a)

producing or supplying a controlled drug where the production or supply contravenes section 4(1) of the Misuse of Drugs Act 1971 or a corresponding law;

(b)

transporting or storing a controlled drug where possession of the drug contravenes section 5(1) of that Act or a corresponding law;

(c)

importing or exporting a controlled drug where the importation or exportation is prohibited by section 3(1) of that Act or a corresponding law;

(d)

manufacturing or supplying a scheduled substance within the meaning of section 12 of the [1990 c. 5] Criminal Justice (International Co-operation) Act 1990 where the manufacture or supply is an offence under that section; and includes a person doing the following, whether in Northern Ireland or elsewhere, that is entering into or being otherwise concerned in an arrangement whereby—

(i)

the retention or control by or on behalf of another person of the other person’s proceeds of drug trafficking is facilitated, or

(ii)

the proceeds of drug trafficking by another person are used to secure that funds are placed at the other person’s disposal or are used for the other person’s benefit to acquire property by way of investment;

“drug trafficking offence” means any of the following—

(a)

an offence under section 4(2) or (3) or 5(3) of the [1971 c. 38] Misuse of Drugs Act 1971 (production, supply and possession for supply of controlled drugs);

(b)

an offence under section 20 of that Act (assisting in or inducing commission outside United Kingdom of offence punishable under a corresponding law);

(c)

an offence under—

(i)

section 50(2) or (3) of the [1979 c. 2] Customs and Excise Management Act 1979 (improper importation),

(ii)

section 68(2) of that Act (exportation), or

(iii)

section 170 of that Act (fraudulent evasion), in connection with a prohibition or restriction on importation or exportation having effect by virtue of section 3 of the Misuse of Drugs Act 1971;

(d)

an offence under Article 29 or 30;

(e)

an offence under section 12 or 19 of the Criminal Justice (International Co-operation) Act 1990;

(f)

an offence under Article 9 of the [1983 NI 13] Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 of conspiracy to commit any of the offences in sub-paragraphs (a) to (e);

(g)

an offence under Article 3 of that Order of attempting to commit any of those offences;

(h)

an offence of inciting another to commit any of those offences, whether under section 19 of the Misuse of Drugs Act 1971 or at common law; and

(i)

aiding, abetting, counselling or procuring the commission of any of those offences;

“external confiscation order” means an order made by a court in a designated country for the purpose—

(a)

of recovering—

(i)

property obtained as a result of or in connection with conduct corresponding to an offence to which this Order applies, other than a drug trafficking offence; or

(ii)

the value of property obtained as mentioned in head (i); or

(iii)

payments or other rewards received in connection with drug trafficking; or

(iv)

the value of payments or other rewards as mentioned in head (iii); or

(b)

of depriving a person of a pecuniary advantage obtained as mentioned in sub-paragraph (a)(i);

“interest”, in relation to property, includes right;

“modifications” includes additions, alterations and omissions;

“property” includes money and all other property, real or personal, heritable or moveable, including things in action and other intangible or incorporeal property;

“restraint order” means an order made by the High Court under Article 13;

“statutory provision” has the meaning assigned to it by section 1(f) of the [1954 c. 33 (N.I.)] Interpretation Act (Northern Ireland) 1954.

(3) The expressions listed in the left hand column below fall to be construed in accordance with the provisions of this Order listed in the right hand column in relation to those expressions.

ExpressionsRelevant provisions
Benefited from drug traffickingArticle 5(2)
Benefited from an offenceArticle 4(4)
Dealing with propertyArticle 13(9)
Gift caught by this OrderArticle 3(10)
Making a giftArticle 3(12)
Proceeds of drug traffickingArticle 6(1)(a)
Realisable propertyArticle 3(1)
Value of gift, payment or rewardArticle 3(7) and (8)
Value of proceeds of drug traffickingArticle 6(1) (b)
Aeticle 3(4) to (6)

(4) References to an offence to which this Order applies are references to any offence which—

(a)is listed in Schedule 1; or

(b)if not so listed, is an indictable offence other than an offence under Part III of the [1989 c. 4] Prevention of Terrorism (Temporary Provisions) Act 1989.

(5) This Order applies to property wherever situated.

(6) References in this Order to offences include a reference to offences committed before the coming into operation of this Order; but nothing in this Order imposes any duty or confers any power on any court in or in connection with proceedings against a person for an offence instituted before the coming into operation of this Order.

(7) References in this Order to property obtained, or to a pecuniary advantage derived, or to anything received, in connection with the commission of an offence or drug trafficking include a reference to property obtained or to a pecuniary advantage derived or to anything received, both in that connection and in some other connection.

(8) The following provisions shall have effect for the interpretation of this Order.

(9) Property is held by any person if he holds any interest in it.

(10) References to property held by a person include a reference to property vested in his trustee in bankruptcy or liquidator.

(11) References to an interest held by a person beneficially in property include a reference to an interest which would be held by him beneficially if the property were not so vested.

(12) Property is transferred by one person to another if the first person transfers or grants to the other any interest in the property.

(13) Proceedings for an offence are instituted—

(a)when a summons or warrant is issued under Article 20 of the [1981 NI 26] Magistrates' Courts (Northern Ireland) Order 1981 in respect of that offence;

(b)when a person is charged with the offence after being taken into custody without a warrant;

(c)when an indictment is presented under section 2(2)(c), (e) or (f) of the [1969 c. 15 (N.I.)] Grand Jury (Abolition) Act (Northern Ireland) 1969; and where the application of this paragraph would result in there being more than one time for the institution of proceedings, they shall be taken to have been instituted at the earliest of those times.

(14) Proceedings for an offence are concluded—

(a)when (disregarding any power of a court to grant leave to appeal out of time) there is no further possibility of a confiscation order being made in the proceedings;

(b)on the satisfaction of a confiscation order made in the proceedings (whether by payment of the amount due under the order or by the defendant serving imprisonment in default).

(15) An order is subject to appeal until (disregarding any power of a court to grant leave to appeal out of time) there is no further possibility of an appeal on which the order could be varied or set aside.

(16) References in this Order to “acting as an insolvency practitioner” shall be construed in accordance with Article 3 of the [1989 NI 19] Insolvency (Northern Ireland) Order 1989 except that for the purposes of such construction paragraph (5) of that Article (which provides that nothing in the Article is to apply to anything done by the official receiver) shall be disregarded; and the expression shall include the official receiver acting as receiver or manager of the property.

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