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

Status:

This is the original version (as it was originally made).

Introductory

Title and commencement

1.—(1) This Order may be cited as the Criminal Justice (Confiscation) (Northern Ireland) Order 1990.

(2) This Order shall come into operation on such day or days as the Secretary of State may by order appoint.

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.

Definition of principal terms used

3.—(1) In this Order, “realisable property” means, subject to paragraph (2)—

(a)any property held by the defendant; and

(b)any property held by a person to whom the defendant has directly or indirectly made a gift caught by this Order.

(2) Property is not realisable property if—

(a)an order under Article 7 of the [1980 NI 6] Criminal Justice (Northern Ireland) Order 1980 (deprivation orders);

(b)an order under section 27 of the [1971 c. 38] Misuse of Drugs Act 1971 (forfeiture orders); or

(c)an order under section 13(2), (3) or (4) of the [1989 c. 4] Prevention of Terrorism (Temporary Provisions) Act 1989 (forfeiture orders), is in force in respect of the property.

(3) For the purposes of this Order the amount that might be realised at the time a confiscation order is made is—

(a)the total of the values at that time of all the realisable property held by the defendant, less

(b)where there are obligations having priority at that time, the total amounts payable in pursuance of such obligations, together with the total of the values at that time of all gifts caught by this Order.

(4) Subject to the following provisions of this Article, for the purposes of this Order the value of property (other than cash) in relation to any person holding the property—

(a)where any other person holds an interest in the property, is—

(i)the market value of the first-mentioned person’s beneficial interest in the property, less

(ii)the amount required to discharge any incumbrance (other than a charging order) on that interest; and

(b)in any other case, is its market value.

(5) References in this Order to the value at any time (referred to in paragraph (6) as “the material time”) of any property obtained by a person as a result of or in connection with the commission of an offence are references to—

(a)the value of the property to him when he obtained it adjusted to take account of subsequent changes in the value of money; or

(b)where paragraph (6) applies, the value there mentioned, whichever is the greater.

(6) If at the material time he holds—

(a)the property which he obtained (not being cash); or

(b)property which, in whole or in part, directly or indirectly represents in his hands the property which he obtained, the value referred to in paragraph (5)(b) is the value to him at the material time of the property mentioned in sub-paragraph (a) or, as the case may be, of the property mentioned in sub-paragraph (b), so far as it so represents the property which he obtained, but disregarding any charging order.

(7) Subject to paragraph (12), references in this Order to the value at any time (referred to in paragraph (8) as “the material time”) of a gift caught by this Order or of any payment or reward are references to—

(a)the value of the gift, payment or reward to the recipient when he received it adjusted to take account of subsequent changes in the value of money; or

(b)where paragraph (8) applies, the value there mentioned, whichever is the greater.

(8) Subject to paragraph (12), if at the material time he holds—

(a)the property which he received (not being cash); or

(b)property which, in whole or in part, directly or indirectly represents in his hands the property which he received; the value referred to in paragraph (7) is the value to him at the material time of the property mentioned in sub-paragraph (a) or, as the case may be, of the property mentioned in sub-paragraph (b) so far as it so represents the property which he received, but disregarding any charging order.

(9) For the purposes of paragraph (3), an obligation has priority at any time if it is an obligation of the defendant to—

(a)pay an amount due in respect of a fine, or other order of a court, imposed or made on conviction of an offence, where the fine was imposed or order made before the confiscation order; or

(b)pay any sum which would be included among the preferential debts (within the meaning given by Article 346 of the [1989 NI 19] Insolvency (Northern Ireland) Order 1989) in the defendant’s bankruptcy commencing on the date of the confiscation order or winding up under an order of the court made on that date.

(10) A gift (including a gift made before the coming into operation of this Order) is caught by this Order if—

(a)in the case of an offence to which this Order applies other than a drug trafficking offence—

(i)it was made by the defendant at any time after the commission of the offence or, if more than one, the earliest of the offences to which the proceedings for the time being relate; and

(ii)the court considers it appropriate in all the circumstances to take the gift into account; or

(b)in the case of a drug trafficking offence—

(i)it was made by the defendant at any time since the beginning of the period of 6 years ending when the proceedings were instituted against him, or

(ii)it was made by the defendant at any time and was a gift of property— aareceived by the defendant in connection with drug trafficking carried on by him or another, or abwhich in whole or in part directly or indirectly represented in the defendant’s hands property received by him in that connection.

(11) The reference in paragraph (10)(a)(i) to an offence to which the proceedings for the time being relate includes, where the proceedings have resulted in the conviction of the defendant, a reference to any offence which the court takes into consideration when determining his sentence.

(12) For the purposes of this Order—

(a)the circumstances in which the defendant is to be treated as making a gift include those where he transfers property to another person directly or indirectly for a consideration the value of which is significantly less than the value of the consideration provided by the defendant; and

(b)in those circumstances, the preceding provisions of this Article shall apply as if the defendant had made a gift of such share in the property as bears to the whole property the same proportion as the difference between the values referred to in sub-paragraph (a) bears to the value of the consideration provided by the defendant.

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