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Northern Ireland (Emergency Provisions) Act 1991

Status:

This is the original version (as it was originally enacted).

SCHEDULES

Section 1.

SCHEDULE 1The Scheduled Offences

Part ISubstantive Offences

Common law offences

1Murder subject to note 1 below.

2Manslaughter subject to note 1 below.

3The common law offence of riot.

4Kidnapping subject to note 1 below.

5False imprisonment subject to note 1 below.

6Assault occasioning actual bodily harm subject to note 1 below.

[1861 c. 97.] Malicious Damage Act 1861

7Offences under section 35 of the Malicious Damage Act 1861 (interference with railway) subject to note 1 below.

Offences against the [1861 c. 100.] Person Act 1861

8Offences under the following provisions of the Offences against the Person Act 1861—

(a)section 4 (conspiracy, etc to murder) subject to note 1 below;

(b)section 16 (threats to kill) subject to note 1 below;

(c)section 18 (wounding with intent to cause grievous bodily harm) subject to note 1 below;

(d)section 20 (causing grievous bodily harm) subject to note 1 below;

(e)section 28 (causing grievous bodily harm by explosives);

(f)section 29 (causing explosion or sending explosive substance or throwing corrosive liquid with intent to cause grievous bodily harm);

(g)section 30 (placing explosive near building or ship with intent to do bodily injury).

[1883 c. 3.] Explosive Substances Act 1883

9Offences under the following provisions of the Explosive Substances Act 1883—

(a)section 2 (causing explosion likely to endanger life or damage property);

(b)section 3 (attempting to cause any such explosion, and making or possessing explosive with intent to endanger life or cause serious damage to property);

(c)section 4 (making or possessing explosives in suspicious circumstances).

[1953 c. 18 (N.I.).] Prison Act (Northern Ireland) 1953

10Offences under the following provisions of the Prison Act (Northern Ireland) 1953 subject to note 1 below—

(a)section 25 (being unlawfully at large while under sentence);

(b)section 26 (escaping from lawful custody and failing to surrender to bail);

(c)section 27 (attempting to break prison);

(d)section 28 (breaking prison by force or violence);

(e)section 29 (rescuing or assisting or permitting to escape from lawful custody persons under sentence of death or life imprisonment);

(f)section 30 (rescuing or assisting or permitting to escape from lawful custody persons other than persons under sentence of death or life imprisonment);

(g)section 32 (causing discharge of prisoner under pretended authority);

(h)section 33 (assisting prisoners to escape by conveying things into prisons).

[1969 c. 16 (N.I.).] Theft Act (Northern Ireland) 1969

11Offences under the following provisions of the Theft Act (Northern Ireland) 1969—

(a)section 1 (theft) subject to note 2 below;

(b)section 8 (robbery) subject to note 3 below;

(c)section 9 (burglary) subject to note 2 below;

(d)section 10 (aggravated burglary) subject to note 3 below;

(e)section 15 (obtaining property by deception) subject to note 2 below;

(f)section 20 (blackmail) subject to notes 1 and 2 below.

Protection of the [1969 c. 29 (N.I.).] Person and Property Act (Northern Ireland) 1969

12Offences under the following provisions of the Protection of the Person and Property Act (Northern Ireland) 1969—

(a)section 1 (intimidation) subject to note 1 below;

(b)section 2 (making or possessing petrol bomb, etc. in suspicious circumstances);

(c)section 3 (throwing or using petrol bomb, etc).

Hijacking

13Offences under section 1 of the [1982 c. 36.] Aviation Security Act 1982 (aircraft).

14Offences in Northern Ireland under section 2 of the [1975 c. 59.] Criminal Jurisdiction Act 1975 (vehicles).

[S.I.1977/426 (N.I.4).] Criminal Damage (Northern Ireland) Order 1977

15Offences under the following provisions of the Criminal Damage (Northern Ireland) Order 1977 subject to note 1 below—

(a)Article 3(1) and (3) or Article 3(2) and (3) (arson);

(b)Article 3(2) (destroying or damaging property with intent to endanger life);

(c)Article 4 (threats to destroy or damage property);

(d)Article 5 (possessing anything with intent to destroy or damage property).

[S.I.1977/1249 (N.I.16).] Criminal Law (Amendment) (Northern Ireland) Order 1977

16Offences under Article 3 of the Criminal Law (Amendment) (Northern Ireland) Order 1977 (bomb hoaxes) subject to note 1 below.

[S.I.1981/155 (N.I.2).] Firearms (Northern Ireland) Order 1981

17Offences under the following provisions of the Firearms (Northern Ireland) Order 1981—

(a)Article 3(1) (possessing, purchasing or acquiring firearm or ammunition without certificate) subject to note 1 below;

(b)Article 4(1), (2), (3) or (4) (manufacturing, dealing in, repairing, etc, firearm or ammunition without being registered) subject to note 1 below;

(c)Article 5 (shortening barrel of shot gun or converting imitation firearm into firearm) subject to note 1 below;

(d)Article 6(1) (manufacturing, dealing in or possessing machine gun, or weapon discharging, or ammunition containing, noxious substance) subject to note 1 below;

(e)Article 17 (possessing firearm or ammunition with intent to endanger life or cause serious damage to property);

(f)Article 18 (use or attempted use of firearm or imitation firearm to prevent arrest of self or another etc.);

(g)Article 19 (carrying firearm or imitation firearm with intent to commit indictable offence or prevent arrest of self or another);

(h)Article 20 (carrying firearm, etc., in public place) subject to notes 1 and 4 below;

(i)Article 22 (possession of firearm or ammunition by person who has been sentenced to imprisonment, etc., and sale of firearm or ammunition to such a person) subject to note 1 below;

(j)Article 23 (possessing firearm or ammunition in suspicious circumstances).

[1982 c. 28.] Taking of Hostages Act 1982

18Offences under the Taking of Hostages Act 1982.

[1983 c. 18.] Nuclear Material (Offences) Act 1983

19Offences under section 2 of the Nuclear Material (Offences) Act 1983 (offences involving nuclear material: preparatory acts and threats).

[1989 c. 4.] Prevention of Terrorism (Temporary Provisions) Act 1989

20Offences under the following provisions of the Prevention of Terrorism (Temporary Provisions) Act 1989—

(a)section 8 (breach of exclusion order);

(b)sections 9, 10 and 11 (financial assistance for terrorism);

(c)section 17 and Schedule 7 (terrorist investigations);

(d)section 18 (information about acts of terrorism);

(e)paragraph 25B of Schedule 4 (contravention of restraint orders).

Aviation and Maritime Security Act 1990

21Offences under the following provisions of the [1990 c. 31.] Aviation and Maritime Security Act 1990—

(a)section 1 (endangering safety at aerodromes);

(b)section 9 (hijacking of ships);

(c)section 10 (seizing or exercising control of fixed platforms).

This Act

22Offences under the following provisions of this Act—

(a)section 19(12);

(b)section 27;

(c)section 28;

(d)section 29;

(e)section 30;

(f)section 31;

(g)section 32;

(h)section 33;

(i)section 35;

(j)section 53;

(k)section 54;

(l)paragraph 13 of Schedule 3;

(m)paragraph 9 of Schedule 4;

(n)paragraph 4 of Schedule 5.

Notes

1Any offence specified in this Part of this Schedule which is stated to be subject to this note is not a scheduled offence in any particular case in which the Attorney General for Northern Ireland certifies that it is not to be treated as a scheduled offence.

2An offence specified in paragraph 11(a), (c) or (e) is a scheduled offence only where it is charged that the offence was committed in relation to or by means of nuclear material within the meaning of the [1983 c. 18.] Nuclear Material (Offences) Act 1983; and the Attorney General for Northern Ireland shall not certify that the offence specified in paragraph 11(f) is not to be treated as a scheduled offence in a case where it is charged that the offence was so committed.

3An offence specified in paragraph 11(b) or (d) is a scheduled offence only where it is charged—

(a)that an explosive, firearm, imitation firearm or weapon of offence was used to commit the offence; or

(b)that the offence was committed in relation to or by means of nuclear material within the meaning of the Nuclear Material (Offences) Act 1983;

and expressions defined in section 10 of the [1969 c. 16 (N.I.).] Theft Act (Northern Ireland) 1969 have the same meaning when used in this note.

4The offence specified in paragraph 17(h) is a scheduled offence only where it is charged that the offence relates to a weapon other than an air weapon.

Part IIInchoate and Related Offences

Each of the following offences, that is to say—

(a)aiding, abetting, counselling, procuring or inciting the commission of an offence specified in Part I of this Schedule (hereafter in this paragraph referred to as a “substantive offence”);

(b)attempting or conspiring to commit a substantive offence;

(c)an offence under section 4 of the [1967 c. 18 (N.I.).] Criminal Law Act (Northern Ireland) 1967 of doing any act with intent to impede the arrest or prosecution of a person who has committed a substantive offence;

(d)an offence under section 5(1) of the Criminal Law Act (Northern Ireland) 1967 of failing to give information to a constable which is likely to secure, or to be of material assistance in securing, the apprehension, prosecution or conviction of a person for a substantive offence,

shall be treated for the purposes of this Act as if it were the substantive offence.

Part IIIExtra-Territorial Offences

Any extra-territorial offence as defined in section 1(3) of the [1975 c. 59.] Criminal Jurisdiction Act 1975.

Part IVOffences Charged Following Terrorist Funds Investigations

Any offence, other than a summary offence, which an officer of the Royal Ulster Constabulary not below the rank of superintendent certifies is charged in consequence of a terrorist funds investigation, unless the Attorney General for Northern Ireland certifies that it is not to be treated as a scheduled offence; and in this Part of this Schedule—

(a)“summary offence” means an offence which, if committed by an adult, is punishable only on summary conviction; and

(b)“a terrorist funds investigation” means an investigation for the purposes of which a person has been authorised under section 57 of this Act to exercise the powers conferred by Schedule 5 to this Act.

Section 28.

SCHEDULE 2Proscribed Organisations

  • The Irish Republican Army.

  • Cumann na mBan.

  • Fianna na hEireann.

  • The Red Hand Commando.

  • Saor Eire.

  • The Ulster Freedom Fighters.

  • The Ulster Volunteer Force.

  • The Irish National Liberation Army.

  • The Irish People’s Liberation Organisation.

Section 34.

SCHEDULE 3Detention of Terrorists

Advisers

1The Secretary of State shall for the purposes of this Schedule appoint such number of Advisers as he may determine to advise him on matters concerning the detention and release of terrorists.

2An Adviser shall be a person who holds or has held judicial office in any part of the United Kingdom or who is—

(a)a person who has a ten year general qualification within the meaning of section 71 of the [1990 c. 41.] Courts and Legal Services Act 1990; or

(b)an advocate or solicitor in Scotland of at least ten years' standing; or

(c)a member of the Bar of Northern Ireland or solicitor of the Supreme Court of Northern Ireland of at least ten years' standing.

3(1)An Adviser shall hold and vacate his office in accordance with the terms of his appointment and shall, on ceasing to hold office, be eligible for reappointment.

(2)An Adviser may at any time by notice in writing to the Secretary of State resign his office.

(3)The Secretary of State may pay to the Advisers such remuneration and allowances as he may determine.

Interim custody orders

4(1)Where it appears to the Secretary of State that there are grounds for suspecting that a person has been concerned—

(a)in the commission or attempted commission of any act of terrorism; or

(b)in directing, organising or training persons for the purpose of terrorism,

the Secretary of State may make an interim custody order for the temporary detention of that person.

(2)An interim custody order shall be signed by the Secretary of State or a Minister of State or Under Secretary of State.

5(1)The Secretary of State may, at any time before the expiration of the period of fourteen days following the date of an interim custody order, refer the case to an Adviser and, unless the case is so referred, the order shall cease to have effect at the expiration of that period.

(2)A reference to an Adviser under this paragraph shall be by notice in writing signed on behalf of the Secretary of State and a copy of the notice shall be sent to the person detained.

Reference to an Adviser

6(1)As soon as possible after a case is referred to an Adviser under paragraph 5 above, the person detained shall be served with a statement in writing as to the nature of the terrorist activities of which he is suspected.

(2)A person detained may, within seven days following the date on which he receives any such statement as is mentioned in sub-paragraph (1) above, send to the Secretary of State—

(a)written representations concerning his case; and

(b)a written request that he be seen personally by an Adviser;

and the Secretary of State shall send a copy of such representations or request to the Adviser concerned.

(3)The Secretary of State may pay any reasonable costs or expenses incurred by a person detained in obtaining legal advice or legal assistance in connection with the preparation of any representations he may make concerning his case.

7(1)Where the case of a person detained under an interim custody order is referred to an Adviser, he shall consider it and report to the Secretary of State whether or not in his opinion—

(a)the person detained has been concerned in terrorist activities; and

(b)the detention of that person is necessary for the protection of the public.

(2)In considering any case referred to him an Adviser shall have regard to any information (whether oral or in writing) which is made available to, or obtained by, him and to any representations (whether oral or in writing) made by the person detained.

(3)No person shall be present during the consideration by an Adviser of the case of any person referred to him, except—

(a)any person who for the time being is being seen by the Adviser;

(b)any assistant to the Adviser; and

(c)any person who is present in the interests of security.

(4)The Secretary of State may, at the request of an Adviser, pay any reasonable expenses incurred by any person in connection with a reference to the Adviser.

Detention orders

8(1)After receiving a report made by an Adviser under paragraph 7(1) above, the Secretary of State shall consider the case of the person to whom it relates and, if he is satisfied—

(a)that the person has been concerned in the commission or attempted commission of any act of terrorism, or in directing, organising or training persons for the purpose of terrorism, and

(b)that the detention of that person is necessary for the protection of the public,

the Secretary of State may make a detention order for the detention of that person.

(2)If, on considering any case under sub-paragraph (1) above, the Secretary of State is not satisfied as mentioned in that sub-paragraph, he shall direct the release of the person concerned.

(3)Subject to sub-paragraphs (4) and (5) below, where—

(a)a person is detained under an interim custody order; and

(b)a detention order is not made in respect of that person within the period of seven weeks following the date of the interim custody order,

the interim custody order shall cease to have effect.

(4)The Secretary of State may, where a person is required to be detained under an interim custody order, give a direction in writing extending the period of seven weeks mentioned in sub-paragraph (3) above (or that period as extended under this sub-paragraph) for a further period of one week if it is stated in the direction that the report of the Adviser in relation to that person’s case has not been received before the sixth day immediately preceding the day on which the interim custody order would, but for the direction, cease to have effect.

(5)Not more than three directions under sub-paragraph (4) above shall be given in respect of any one interim custody order.

(6)A detention order shall be signed by the Secretary of State, and a direction under sub-paragraph (4) above shall be signed by the Secretary of State or a Minister of State or Under Secretary of State.

Supplemental

9(1)The Secretary of State may at any time refer the case of a person detained under a detention order to an Adviser and, if so requested in writing in accordance with sub-paragraph (2) below by a person so detained, shall do so within fourteen days beginning with the receipt of the request.

(2)A person detained under a detention order shall not be entitled to make a request for the purposes of sub-paragraph (1) above—

(a)before the expiration of the period of one year beginning with the date of the detention order; or

(b)within a period of six months from the date of the last notification under sub-paragraph (5) below.

(3)On any reference under this paragraph, an Adviser shall consider the case and report to the Secretary of State whether or not the person’s continued detention is necessary for the protection of the public.

(4)Paragraphs 6(3) and 7(2) to (4) above shall apply for the purposes of a reference under this paragraph as they apply for the purposes of a reference under paragraph 5 above.

(5)Where a case is referred to an Adviser in consequence of a request made in accordance with this paragraph, the Secretary of State shall, after receiving the report of the Adviser, reconsider the case of the person to whom it relates and, if he decides not to release that person, shall notify him of his decision.

(6)A notification under sub-paragraph (5) above shall be by notice in writing and signed by the Secretary of State.

10(1)The Secretary of State may, as respects a person detained under an interim custody order—

(a)direct his discharge unconditionally; or

(b)direct his release (whether or not subject to conditions) for a specified period.

(2)The Secretary of State may, as respects a person detained under a detention order—

(a)direct his discharge unconditionally; or

(b)direct his release subject to conditions or for a specified period, or both.

(3)The Secretary of State may recall to detention a person released under sub-paragraph (1)(b) or (2)(b) above and a person so recalled may be detained under the original interim custody or detention order, as the case may be.

(4)Where a person is released under sub-paragraph (1)(b) above, any period during which he is not in detention shall be left out of account for the purposes of paragraphs 5(1), 6(2) and 8(3) above.

11(1)A person required to be detained under an interim custody order or a detention order may be detained in a prison or in some other place approved for the purposes of this paragraph by the Secretary of State.

(2)A person for the time being having custody of a person required to be detained as aforesaid shall have all the powers, authorities, protection and privileges of a constable.

(3)Subject to any directions of the Secretary of State, a person required to be detained as aforesaid shall be treated as nearly as may be as if he were a prisoner detained in a prison on remand and any power of temporary removal for judicial, medical or other purposes shall apply accordingly.

(4)A person required to be detained as aforesaid who is unlawfully at large may be arrested without warrant by any constable or any member of Her Majesty’s forces on duty.

12Where a person required to be detained under an interim custody order is unlawfully at large, the interim custody order shall not cease to have effect under paragraph 5 or 8 above while he remains at large; and, upon his being taken again into custody, those paragraphs shall have effect as if the date of the interim custody order were that of his being taken again into custody.

13Any person who—

(a)being detained under an interim custody order or detention order, escapes;

(b)rescues any person detained as aforesaid, or assists a person so detained in escaping or attempting to escape;

(c)fails to return to detention at the expiration of a period for which he was released under paragraph 10(1)(b) or (2)(b) above; or

(d)knowingly harbours any person required to be detained under an interim custody order or detention order, or gives him any assistance with intent to prevent, hinder or interfere with his being taken into custody,

is guilty of an offence and liable on conviction on indictment to imprisonment for a term not exceeding five years or a fine or both.

14(1)Any document purporting to be an order, notice or direction made or given by the Secretary of State for the purposes of this Schedule and to be signed in accordance with this Schedule shall be received in evidence and shall, until the contrary is proved, be deemed to be duly made or given and signed.

(2)Prima facie evidence of any such order, notice or direction may, in any legal proceedings, be given by the production of a document bearing a certificate purporting to be signed by or on behalf of the Secretary of State stating that the document is a true copy of the order, notice or direction; and the certificate shall be received in evidence, and shall, until the contrary is proved, be deemed to be duly made and signed.

15The Secretary of State may make such payments to persons released or about to be released from detention under this Schedule as he may, with the consent of the Treasury, determine.

Section 55.

SCHEDULE 4Confiscation Orders: Supplementary Provisions

Interpretation

1(1)Section 56 of this Act also has effect for the purposes of this Schedule.

(2)The following provisions have effect, in addition to those of that section, for the interpretation of this Schedule.

(3)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).

(4)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.

(5)References to “acting as an insolvency practitioner” shall be construed in accordance with Article 3 of the [S.I. 1989/2405 (N.I. 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.

(6)References to the Registration of Deeds Acts are to the [1970 c. 25 (N.I.).] Registration of Deeds Act (Northern Ireland) 1970 and every statutory provision for the time being in force amending that Act or otherwise relating to the registry of deeds, or to the registration of deeds, orders or other instruments or documents in such registry.

Application of procedure for enforcing fines

2(1)Where the Crown Court makes a confiscation order against a defendant, section 35(1), (2) and (4) of the [1945 c. 15 (N.I.).] Criminal Justice Act (Northern Ireland) 1945 (powers of Crown Court in relation to fines) shall have effect as if—

(a)the amount which the order requires him to pay were a fine imposed on him by the Crown Court; and

(b)in section 35(2) (imprisonment in default), for the reference to twelve months there were substituted a reference to the periods set out in the second column of the following Table applicable respectively to the amounts set out opposite thereto—

Table

An amount not exceeding £507 days
An amount exceeding £50 but not exceeding £10014 days
An amount exceeding £100 but not exceeding £40030 days
An amount exceeding £400 but not exceeding £1,00060 days
An amount exceeding £1,000 but not exceeding £2,00090 days
An amount exceeding £2,000 but not exceeding £5,0006 months
An amount exceeding £5,000 but not exceeding £10,0009 months
An amount exceeding £10,000 but not exceeding £20,00012 months
An amount exceeding £20,000 but not exceeding £50,00018 months
An amount exceeding £50,000 but not exceeding £100,0002 years
An amount exceeding £100,000 but not exceeding £250,0003 years
An amount exceeding £250,000 but not exceeding £1 million5 years
An amount exceeding £1 million10 years

(2)Where—

(a)a warrant of commitment is issued for a default in payment of an amount ordered to be paid by a confiscation order in respect of an offence; and

(b)at the time the warrant is issued, the defendant is liable to serve a term of custody in respect of the offence,

the term of imprisonment or of detention under section 5 of the [1968 c. 29 (N.I.).] Treatment of Offenders Act (Northern Ireland) 1968 (detention of persons aged sixteen to twenty-one for default) to be served in default of payment of the amount shall not begin to run until after the term mentioned in paragraph (b) above.

(3)The reference in sub-paragraph (2) above to the term of custody which the defendant is liable to serve in respect of the offence is a reference to the term of imprisonment or of detention under section 5 of the said Act of 1968 which he is liable to serve in respect of the offence; and for the purposes of this sub-paragraph—

(a)consecutive terms and terms which are wholly or partly concurrent shall be treated as a single term; and

(b)there shall be disregarded—

(i)any sentence of imprisonment or order for detention suspended under section 18 of that Act which has not taken effect at the time when the warrant is issued; and

(ii)any term of imprisonment or detention fixed under section 35(1)(c) of the [1945 c. 15 (N.I.).] Criminal Justice Act (Northern Ireland) 1945 for which a warrant of commitment has not been issued at that time.

(4)An amount payable under a confiscation order is not a fine, costs, damages or compensation for the purposes of section 76 of the [1968 c. 34 (N.I.).] Children and Young Persons Act (Northern Ireland) 1968 (enforcement of fines imposed on young offenders).

(5)This paragraph applies in relation to confiscation orders made by the Court of Appeal, or by the House of Lords on appeal from the Court of Appeal, as it applies in relation to confiscation orders made by the Crown Court, and the reference in sub-paragraph (1)(a) above to the Crown Court shall be construed accordingly.

Interest on sums unpaid under confiscation orders

3(1)If any sum required to be paid by a person under a confiscation order is not paid when it is required to be paid (whether forthwith on the making of the order or at a time specified under section 35(1) of the Criminal Justice Act (Northern Ireland) 1945), that person shall be liable to pay interest on that sum for the period for which it remains unpaid and the amount of the interest shall for the purposes of enforcement be treated as part of the amount to be recovered from him under the confiscation order.

(2)The Crown Court may, on the application of the prosecution, increase the term of imprisonment or detention fixed in respect of the confiscation order under subsection (1)(c) of section 35 of the said Act of 1945 (imprisonment in default of payment) if the effect of sub-paragraph (1) above is to increase the maximum period applicable in relation to the order under subsection (2) of that section as it has effect by virtue of paragraph 2(1)(b) above.

(3)The rate of interest under sub-paragraph (1) above shall be that for the time being applying to a money judgment of the High Court.

Cases in which restraint orders and charging orders may be made

4(1)The powers conferred on the High Court by paragraphs 5(1) and 6(1) below are exercisable where—

(a)proceedings have been instituted in Northern Ireland against the defendant for a relevant offence;

(b)the proceedings have not been concluded; and

(c)the court is satisfied that there is reasonable cause to believe that the defendant has benefited from terrorist-related activities.

(2)Those powers are also exercisable where—

(a)the High Court is satisfied that, whether by the making of a complaint or otherwise, a person is to be charged with a relevant offence; and

(b)it appears to the court that there is reasonable cause to believe that he has benefited from terrorist-related activities.

(3)For the purposes of paragraphs 5 and 6 below at any time when those powers are exercisable before proceedings have been instituted—

(a)references to the defendant shall be construed as references to the person referred to in sub-paragraph (2)(a) above; and

(b)references to realisable property shall be construed as if, immediately before that time, proceedings had been instituted against the person referred to in sub-paragraph (2)(a) above for a relevant offence.

(4)Where the High Court has made an order under paragraph 5(1) or 6(1) below by virtue of sub-paragraph (2) above, the court shall discharge the order if proceedings in respect of the offence are not instituted (whether by the making of a complaint or otherwise) within such time as the court considers reasonable.

Restraint orders

5(1)The High Court may by order (a restraint order) prohibit any person from dealing with any realisable property, subject to such conditions and exceptions as may be specified in the order.

(2)Without prejudice to the generality of sub-paragraph (1) above, a restraint order may make such provision as the High Court thinks fit for living expenses or legal expenses.

(3)A restraint order may apply—

(a)to all realisable property held by a specified person, whether the property is described in the order or not; and

(b)to realisable property held by a specified person, being property transferred to him after the making of the order.

(4)This paragraph shall not have effect in relation to any property for the time being subject to a charge under paragraph 6 below.

(5)A restraint order—

(a)may be made—

(i)where it is applied for before the defendant is convicted of the offence, only on the application of an officer of the Royal Ulster Constabulary not below the rank of superintendent; and

(ii)otherwise, only on the application of the prosecution;

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

(c)shall provide for notice to be given to persons affected by the order.

(6)A restraint order—

(a)may be discharged or varied in relation to any property; and

(b)shall be discharged when proceedings for the offence are concluded.

(7)An application for the discharge or variation of a restraint order may be made by any person affected by it.

(8)Where the High Court has made a restraint order, the court may at any time appoint a receiver—

(a)to take possession of any realisable property; and

(b)in accordance with the court’s directions, to manage or otherwise deal with any property in respect of which he is appointed,

subject to such exceptions and conditions as may be specified by the court; and the court may require any person having possession of property in respect of which a receiver is appointed under this section to give possession of it to the receiver.

(9)For the purposes of this paragraph, dealing with property held by any person includes (without prejudice to the generality of the expression)—

(a)where a debt is owed to that person, making a payment to any person in reduction of the amount of the debt; and

(b)removing the property from Northern Ireland.

(10)Where the High Court has made a restraint order, a constable may, for the purpose of preventing any realisable property being removed from Northern Ireland, seize the property.

(11)Property seized under sub-paragraph (10) above shall be dealt with in accordance with the directions of the High Court.

(12)The person by whom an application for a restraint order is made shall be treated for the purposes of section 66 of the [1970 c. 18 (N.I.).] Land Registration Act (Northern Ireland) 1970 (cautions) as a person interested in relation to any registered land to which the order or the application for an order relates.

(13)On the application of the person by whom an application for a restraint order is made the Registrar shall, in respect of any registered land to which the order or the application for an order relates, make an entry inhibiting any dealing with the land without the consent of the High Court.

(14)Subsections (2) and (4) of section 67 of the said Act of 1970 (inhibitions) shall apply to an entry made on an application under sub-paragraph (13) above as they apply to an entry made on the application of any person interested in the registered land under subsection (1) of that section.

(15)Where a restraint order has been protected by an entry registered under the said Act of 1970 or the Registration of Deeds Acts, an order under sub-paragraph (6) above discharging the restraint order may direct that the entry be vacated.

(16)In this paragraph “Registrar” and “entry” have the same meanings as in the said Act of 1970 and “registered land” means land the title to which is registered under Part III of that Act.

Charging orders in respect of land, securities, etc.

6(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)in any other case, of an amount not exceeding the amount payable under the confiscation order.

(2)A charging order—

(a)may be made—

(i)where it is applied for before the defendant is convicted of the offence, only on the application of an officer of the Royal Ulster Constabulary not below the rank of superintendent; and

(ii)otherwise, only on the application of the prosecution;

(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 and, 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.

(3)Subject to sub-paragraph (5) below, a charge may be imposed by a charging order only on—

(a)any interest in realisable property, being an interest held beneficially by the defendant or by a person to whom the defendant has directly or indirectly made a gift caught by Part VII of this Act—

(i)in any asset of a kind mentioned in sub-paragraph (4) below; or

(ii)under any trust; or

(b)any interest in realisable property held by a person as trustee of a 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 first-mentioned trust.

(4)The assets referred to in sub-paragraph (3) above are—

(a)land in Northern Ireland; or

(b)securities of any of the following kinds—

(i)government funds or stock;

(ii)stock of any body incorporated within Northern Ireland (other than a building society);

(iii)stock of any body incorporated outside Northern Ireland (other than a building society incorporated in Great Britain) or of any country or territory outside the United Kingdom, being stock registered in a register kept at any place within Northern Ireland;

(iv)units of any unit trust in respect of which a register of the unit holders is kept at any place within Northern Ireland.

(5)In any case where a charge is imposed by a charging order on any interest in an asset of a kind mentioned in sub-paragraph (4)(b) above, the High Court may provide for the charge to extend to any interest or dividend payable in respect of the asset.

(6)The High Court may make an order discharging or varying the charging order and shall make an order discharging the charging order if the proceedings for the offence are concluded or the amount payment of which is secured by the charge is paid into court.

(7)An application for the discharge or variation of a charging order may be made by any person affected by it.

Charging orders: supplementary provisions

7(1)Subject to any provision made under paragraph 10 below 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 or persons who are entitled to make such charges over the realisable property.

(2)Where a charging order has been protected by an entry registered under the [1970 c. 18 (N.I.).] Land Registration Act (Northern Ireland) 1970 or the Registration of Deeds Acts, an order under paragraph 6(6) above discharging the charging order may direct that the entry be vacated.

(3)The Secretary of State may by order amend paragraph 6 above 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.

(4)In this paragraph and paragraph 6 above—

  • “building society” has the same meaning as in the [1986 c. 53.] Building Societies Act 1986;

  • “dividend” includes any distribution in respect of any unit of a unit trust;

  • “government funds or stocks” has the same meaning as in the [S.I. 1981/226 (N.I.6).] Judgments Enforcement (Northern Ireland) Order 1981;

  • “stock” includes shares, debentures and any securities of the body concerned, whether or not constituting a charge on the assets of that body;

  • “unit trust” means any trust established for the purpose, or having the effect, of providing, for persons having funds available for investment, facilities for the participation by them, as beneficiaries under the trust, in any profits or income arising from the acquisition, holding, management or disposal of any property whatsoever.

Restraint and charging orders made by the Secretary of State

8(1)The power to make a restraint order or charging order under the provisions of paragraphs 5 and 6 above shall be exercisable by the Secretary of State in any case in which it appears to him that the information which it would be necessary to provide in support of an application to the High Court or a judge under those provisions would, if disclosed, be likely to place any person in danger or prejudice the capability of members of the Royal Ulster Constabulary or a person authorised under section 57 of this Act to investigate a relevant offence.

(2)In their application by virtue of sub-paragraph (1) above paragraphs 4 to 6 above shall have effect with the necessary modifications and as if references to the High Court were references to the Secretary of State.

(3)An order made by the Secretary of State by virtue of this paragraph may be varied or discharged under those provisions by the High Court; and the High Court may under paragraph 5(8) above appoint a receiver where a restraint order has been made by the Secretary of State.

Contravention of restraint order

9(1)A person who, without lawful authority or reasonable excuse (the proof of which lies on him), contravenes a restraint order is guilty of an offence and liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding fourteen years or a fine or both;

(b)on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.

(2)Nothing in sub-paragraph (1) above shall be taken to prejudice any power of the High Court to deal with the contravention of a restraint order as a contempt of court.

Realisation of property

10(1)Where—

(a)a confiscation order is made;

(b)the order is not subject to appeal; and

(c)the proceedings in which it was made have not been concluded,

the High Court may, on an application by the prosecution, exercise the powers conferred by sub-paragraphs (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 sub-paragraph (2) above, under paragraph 5 above or in pursuance of a charging order—

(a)to enforce any charge imposed under paragraph 6 above 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 that paragraph, 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 (including the manner of conveyance or transfer of property which is land) as the court may direct.

(6)The court may order any person holding an interest in realisable property to make such payment to the receiver in respect of any beneficial interest held by the defendant or, as the case may be, the recipient of a gift caught by Part VII of this Act as the court may direct and the court may, on the payment being made, by order transfer, grant or extinguish any interest in the property.

(7)Sub-paragraphs (4) to (6) above do not apply to property for the time being subject to a charge under paragraph 6 above.

(8)The High Court shall not in respect of any property exercise the powers conferred by sub-paragraph (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.

Increase in realisable property

11(1)Where—

(a)by virtue of section 47(7) of this Act the amount which a person is ordered to pay by a confiscation order is less than the amount assessed to be the value of his proceeds of terrorist-related activities; and

(b)the High Court is satisfied, on an application made in accordance with sub-paragraph (2) below, that the amount that might be realised in the case of that person is greater than the amount taken into account in making the confiscation order (whether it is greater than was thought when the order was made or has subsequently increased),

the court shall issue a certificate to that effect, giving the court’s reasons.

(2)An application under sub-paragraph (1) above may be made either by the prosecution or by a receiver appointed under this Schedule in relation to the realisable property of the person mentioned in that sub-paragraph.

(3)Where a certificate has been issued under sub-paragraph (1) above the prosecution may apply to the Crown Court for the amount to be paid under the confiscation order to be increased.

(4)The Crown Court may on an application under sub-paragraph (3) above—

(a)substitute for the amount to be paid under the order such amount (not exceeding the amount assessed as the value of the proceeds of terrorist-related activities) as appears to the court to be appropriate having regard to the amount now shown to be realisable; and

(b)increase the term of imprisonment or detention fixed in respect of the order under subsection (1)(c) of section 35 of the [1945 c. 15 (N.I.).] Criminal Justice Act (Northern Ireland) 1945 (imprisonment in default of payment) if the effect of the substitution under paragraph (a) above is to increase the maximum period applicable in relation to the order under subsection (2) of that section as it has effect by virtue of paragraph 2(1)(b) above.

Application of proceeds of realisation and other sums

12(1)Subject to sub-paragraph (2) below, the following sums in the hands of a receiver appointed under this Part or in pursuance of a charging order, that is—

(a)the proceeds of the enforcement of any charge imposed under paragraph 6 above;

(b)the proceeds of the realisation, other than by the enforcement of such a charge, of any property under paragraph 5 or 10 above; and

(c)any other sums, being property held by the defendant,

shall first be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under paragraph 18(2) below and then shall, after such payments (if any) as the High Court may direct have been made out of those proceeds and sums, be applied on the defendant’s behalf towards the satisfaction of the confiscation order.

(2)If, after the amount payable under the confiscation order has been fully paid, any such sums remain in the hands of such a receiver, the receiver shall distribute them—

(a)among such of those who held property which has been realised under this Schedule; and

(b)in such proportions,

as the High Court may direct after giving a reasonable opportunity for such persons to make representations to the court.

(3)The receipt of any sum by the proper officer on account of an amount payable under a confiscation order shall reduce the amount so payable, but the proper officer shall apply the money received for the purposes, and in the order, specified in this paragraph.

(4)The proper officer shall first pay any expenses incurred by a person acting as an insolvency practitioner and payable under paragraph 18(2) below but not already paid under sub-paragraph (1) above.

(5)If the money was paid to the proper officer by a receiver appointed under this Schedule or in pursuance of a charging order, the proper officer shall next pay the receiver’s remuneration and expenses.

(6)After making—

(a)any payment required by sub-paragraph (4) above; and

(b)in a case to which sub-paragraph (5) above applies, any payment required by that sub-paragraph,

the proper officer shall reimburse any amount paid under paragraph 14(2) below.

(7)The proper officer shall finally pay any compensation directed to be paid out of any sums recovered under the confiscation order under section 48(7) of this Act.

(8)Any balance in the hands of the proper officer after he has made all payments required by the foregoing provisions of this paragraph shall be treated as a fine for the purposes of section 20 of the [1954 c. 9 (N.I.).] Administration of Justice Act (Northern Ireland) 1954 (application of fines).

(9)Where under sub-paragraph (3) above a sum falls to be applied in payment both of compensation and of other outgoings—

(a)the person entitled to the compensation shall be liable to pay into the Consolidated Fund of the United Kingdom such an amount as bears to the remuneration or expenses the same proportion as the amount payable in accordance with the direction mentioned in sub-paragraph (7) above bears to the total amount payable under the confiscation order;

(b)the proper officer shall deduct from the amount falling to be applied in payment of the compensation an amount equal to the amount of any liability arising by virtue of paragraph (a) above;

(c)notwithstanding the deduction under paragraph (b) above, the person entitled to compensation shall be treated as having received the whole of the amount which falls to be applied in payment of it; and

(d)the amount deducted shall be treated as a fine for the purposes of section 20 of the Administration of Justice Act (Northern Ireland) 1954.

(10)In this paragraph “the proper officer” means the appropriate officer of the Crown Court.

Exercise of powers by High Court, Secretary of State or receiver

13(1)This paragraph applies to the powers conferred on the High Court and the Secretary of State by paragraphs 5 to 10 and 12 above, or on a receiver appointed under this Schedule or in pursuance of a charging order.

(2)Subject to the following provisions of this paragraph, 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 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 Part VII of 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)An order may be made or other action taken in respect of a debt owed by the Crown (including the Crown in right of Her Majesty’s Government in Northern Ireland).

(6)In exercising those 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.

Receivers: supplementary provisions

14(1)Where a receiver appointed under this Schedule or in pursuance of a charging order takes any action—

(a)in relation to any property which is not realisable property, being action which he would be entitled to take if it were such property;

(b)believing, and having 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 paragraph 12(5) above, be paid by the prosecution or, in a case where proceedings for a relevant offence are not instituted, by the person on whose application the receiver was appointed.

Variation of confiscation orders

15(1)If, on an application by the defendant in respect of a confiscation order, the High Court is satisfied that the realisable property is inadequate for the payment of any amount remaining to be paid under the order the court shall issue a certificate to that effect, giving the court’s reasons.

(2)For the purposes of sub-paragraph (1) above—

(a)in the case of realisable property held by a person who has been adjudged bankrupt the court shall take into account the extent to which any property held by him may be distributed among creditors; and

(b)the court may disregard any inadequacy in the realisable property which appears to the court to be attributable wholly or partly to anything done by the defendant for the purpose of preserving any property held by a person to whom the defendant had directly or indirectly made a gift caught by Part VII of this Act from any risk of realisation under this Schedule.

(3)Where a certificate has been issued under sub-paragraph (1) above, the defendant may apply to the Crown Court for the amount to be paid under the confiscation order to be reduced.

(4)The Crown Court shall, on an application under sub-paragraph (3) above—

(a)substitute for the amount to be paid under the order such lesser amount as the court thinks just in all the circumstances of the case; and

(b)substitute for the term of imprisonment or detention fixed in respect of the order under subsection (1)(c) of section 35 of the [1945 c. 15 (N.I.).] Criminal Justice Act (Northern Ireland) 1945 (imprisonment in default of payment) a shorter term if the effect of the substitution under paragraph (a) above is to reduce the maximum period applicable in relation to the order under subsection (2) of that section as it has effect by virtue of paragraph 2(1)(b) above.

Bankruptcy of defendant

16(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 paragraph 5(8) or 10(5) or (6) above for the time being in the hands of a receiver appointed under paragraph 5 or 10 above,

is excluded from the bankrupt’s estate for the purposes of Part IX of the [S.I. 1989/2405 (N.I.19).] Insolvency (Northern Ireland) Order 1989.

(2)Where a person has been adjudged bankrupt, the powers conferred on the High Court and the Secretary of State by paragraphs 5 to 10 and 12 above 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 that Part of the said Order of 1989;

(b)property in respect of which his trustee in bankruptcy may (without leave of the High Court) serve a notice under Article 280 or 281 of that Order (after-acquired property and tools, clothes, etc. exceeding value of reasonable replacement); and

(c)property which is to be applied for the benefit of creditors of the bankrupt by virtue of a condition imposed under Article 254(2)(c) of that Order.

(3)Nothing in that Order shall be taken as restricting, or enabling the restriction of, the exercise of those powers.

(4)Sub-paragraph (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.

(5)Where, in the case of a debtor, an interim receiver stands appointed under Article 259 of the said Order of 1989 and any property of the debtor is subject to a restraint order, the powers conferred on the receiver by virtue of that Order do not apply to property for the time being subject to the restraint order.

(6)Where a person is adjudged bankrupt and has directly or indirectly made a gift caught by Part VII of this Act—

(a)no order shall be made under Article 312 or 367 of the said Order of 1989 (avoidance of certain transactions) in respect of the making of the gift at any time when proceedings for a relevant offence have been instituted against him and have not been concluded or when 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 either of those Articles after the conclusion of the proceedings shall take into account any realisation under this Schedule of property held by the person to whom the gift was made.

Winding up of company holding realisable property

17(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, 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 paragraph 5(8) or 10(5) or (6) above for the time being in the hands of a receiver appointed under paragraph 5 or 10 above.

(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 and the Secretary of State by paragraphs 5 to 10 and 12 above 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.

(3)Nothing in the [S.I. 1989/2405 (N.I.19).] Insolvency (Northern Ireland) Order 1989 shall be taken as restricting, or enabling the restriction of, the exercise of those powers.

(4)Sub-paragraph (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.

(5)In this paragraph—

  • “company” means any company which may be wound up under the Insolvency (Northern Ireland) Order 1989; and

  • “the relevant time” means—

    (a)

    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;

    (b)

    where such an order has been made and, before the presentation of the petition for the winding up of the company by the High Court, such a resolution had been passed by the company, the time of the passing of the resolution; and

    (c)

    in any other case where such an order has been made, the time of the making of the order.

Insolvency practitioners dealing with property subject to restraint order

18(1)Without prejudice to the generality of the Insolvency (Northern Ireland) Order 1989 or any other statutory provision, 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 High 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; and a person so acting shall 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.

(2)Any person who, acting as an insolvency practitioner, incurs expenses—

(a)in respect of such property as is mentioned in paragraph (a) of sub-paragraph (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)other than 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,

shall be entitled (whether or not he has seized or disposed of that property so as to have a lien under that paragraph) to payment of those expenses under paragraph 12(1) or (4) above.

Enforcement of orders outside Northern Ireland

19(1)Her Majesty may by Order in Council make provision for the enforcement of confiscation orders and restraint orders—

(a)in England, Wales and Scotland; and

(b)in any of the Channel Islands or the Isle of Man.

(2)An Order under this paragraph may apply or modify any of the provisions of this Schedule so far as appears to Her Majesty to be appropriate for the purposes of the Order.

Compensation

20(1)If proceedings are instituted against a person for a relevant offence or relevant offences and either—

(a)the proceedings do not result in his conviction for any such offence; or

(b)where he is convicted of one or more such offences—

(i)the conviction or convictions concerned are quashed; or

(ii)he is pardoned by Her Majesty in respect of the conviction or convictions concerned,

the High Court may, on an application by a person who held property which was realisable property, order compensation to be paid to the applicant if, having regard to all the circumstances, it considers it appropriate to make such an order.

(2)The High Court shall not order compensation to be paid in any case unless the court is satisfied—

(a)that there has been some serious default on the part of a person concerned in the investigation or prosecution of the offence concerned, being a person mentioned in sub-paragraph (5) below; and

(b)that the applicant has suffered loss in consequence of anything done in relation to the property by or in pursuance of an order under this Schedule or Part VII of this Act.

(3)The High Court shall not order compensation to be paid in any case where it appears to the court that the proceedings would have been instituted or continued even if the serious default had not occurred.

(4)The amount of compensation to be paid under this paragraph shall be such as the High Court thinks just in all the circumstances of the case.

(5)Compensation payable under this paragraph shall be paid—

(a)where the person in default was or was acting as a member of the Royal Ulster Constabulary or as a person authorised under section 57 of this Act, by the Police Authority for Northern Ireland;

(b)where the person in default was a member of the Office of the Director of Public Prosecutions for Northern Ireland, by the Director of Public Prosecutions for Northern Ireland.

Transitional provisions

21(1)In the case of a confiscation order made before the coming into operation of the [S.I. 1989/2405 (N.I.19).] Insolvency (Northern Ireland) Order 1989, section 50(4) of this Act shall have effect as if for paragraph (b) there were substituted—

(b)pay any sum which, if the defendant had been adjudged bankrupt or was being wound up, would be among the preferential debts.;and in that paragraph “the preferential debts”—

(a)in relation to bankruptcy, means the debts to be paid in priority under Article 19 of the [S.I. 1980/561 (N.I.4).] Bankruptcy Amendment (Northern Ireland) Order 1980 (assuming the date of the confiscation order to be the date of the order of adjudication); and

(b)in relation to winding up, means the preferential debts listed in Schedule 18 to the [S.I. 1986/1032 (N.I.6).] Companies (Northern Ireland) Order 1986 (assuming the date of the confiscation order to be the relevant date for the purpose of that Schedule).

(2)Until the coming into operation of the Insolvency (Northern Ireland) Order 1989, paragraphs 12(1) and (4) and 18 above shall have effect as if for references to an insolvency practitioner there were substituted references to an Official Assignee, trustee, liquidator, provisional liquidator or a receiver or manager appointed under section 68 of the [1872 c. 58.] Bankruptcy (Ireland) Amendment Act 1872.

(3)In any case in which a petition in bankruptcy was presented, or an adjudication in bankruptcy was made, before the coming into operation of the Insolvency (Northern Ireland) Order 1989, paragraph 16 above shall have effect with the following modifications—

(a)for references to the bankrupt’s estate for the purposes of Part IX of that Order there shall be substituted references to the property of the bankrupt for the purposes of the Bankruptcy Acts (Northern Ireland) 1857 to 1980;

(b)sub-paragraph (2)(b) shall be omitted;

(c)for the reference in sub-paragraph (2)(c) to Article 254(2)(c) of that Order there shall be substituted a reference to Articles 28(4), (5)(c) and (11) and 30(6)(c) of the Bankruptcy Amendment (Northern Ireland) Order 1980;

(d)for the reference in sub-paragraph (3) to that Order there shall be substituted a reference to the Bankruptcy Acts (Northern Ireland) 1857 to 1980;

(e)for the reference in sub-paragraph (5) to an interim receiver appointed under Article 259 of that Order there shall be substituted a reference to a receiver or manager appointed under section 68 of the Bankruptcy (Ireland) Amendment Act 1872; and

(f)for the references in sub-paragraph (6) to Articles 312 and 367 of that Order there shall be respectively substituted references to section 12 of the [1929 c. 1(N.I.). 1634 c. 3.(Ir.).] Bankruptcy Amendment Act (Northern Ireland) 1929 and paragraph 16 of the Conveyancing Act (Ireland) 1634.

(4)In any case in which a winding up of a company has commenced, or is treated as having commenced, before the coming into operation of the [S.I. 1989/2405 (N.I.19).] Insolvency (Northern Ireland) Order 1989, paragraph 17 above shall have effect with the substitution for references to that Order of references to the [S.I. 1986/1032 (N.I.6).] Companies (Northern Ireland) Order 1986.

Section 57.

SCHEDULE 5Authorised Investigators

Preliminary

1(1)In this Schedule—

  • “authorised investigator” means a person authorised under section 57 of this Act to exercise the powers conferred by this Schedule;

  • “the investigation”, in relation to an authorised investigator, means the investigation for the purposes of which those powers are exercisable by him.

(2)References in this Schedule to documents include references to information recorded in any form and, in relation to information recorded otherwise than in legible form, references to its production include references to producing a copy of the information in legible form.

(3)References in this Schedule to the Crown include references to the Crown in right of Her Majesty’s Government in Northern Ireland.

Investigation powers

2(1)An authorised investigator may by notice in writing require any person who he has reason to believe has information relevant to the investigation to attend before him at a specified place either forthwith or at a specified time and answer questions or otherwise furnish information with respect to any matter relevant to the investigation.

(2)An authorised investigator may by notice in writing require any such person to produce at a specified place and either forthwith or at a specified time any specified documents which appear to the authorised investigator to relate to any matter relevant to the investigation or any documents of a specified class which appear to him to relate to any such matter.

(3)If any documents are produced pursuant to a notice under sub-paragraph (2) above the authorised investigator may—

(a)take copies of or abstracts from them;

(b)require the person producing them to provide an explanation of them;

(c)retain them if he has reasonable grounds for believing that they might otherwise be concealed, lost, damaged, altered or destroyed.

(4)If any documents are not produced pursuant to a notice under sub-paragraph (2) above the authorised investigator may require the person who was required to produce them to state, to the best of his knowledge and belief, where they are.

(5)A person shall not under this paragraph be required to disclose any information or produce any document—

(a)which he would be entitled to refuse to disclose or produce on grounds of legal professional privilege in proceedings in the High Court; or

(b)which in Scotland is an item subject to legal privilege as defined in section 40 of the [1987 c. 41.] Criminal Justice (Scotland) Act 1987;

except that a lawyer may be required to furnish the name and address of his client.

(6)A person shall not under this paragraph be required to disclose any information or produce any document—

(a)which is held by him on behalf of the Crown; or

(b)in respect of which he owes an obligation of confidence by virtue of the carrying on of a banking business.

(7)A person need not comply with any requirement imposed by an authorised investigator under this paragraph unless the investigator has, if required to do so, produced evidence of his authority, and that evidence need not identify him by name if it contains other means of identification.

Search warrants

3(1)A justice of the peace or, in Scotland, a sheriff may, on an application made by an authorised investigator, issue a warrant under this paragraph if he is satisfied, in relation to any documents, that there are reasonable grounds for believing—

(a)that—

(i)a person has failed to comply with an obligation under paragraph 2 above to produce them;

(ii)it is not practicable to serve a notice under that paragraph in relation to them; or

(iii)service of such a notice in relation to them might seriously prejudice the investigation; and

(b)that they are on premises specified in the application.

(2)A warrant under this paragraph shall authorise any constable (using such force as is reasonably necessary)—

(a)to enter and search the premises; and

(b)to take possession of any documents appearing to be documents of a description specified in the application or to take in relation to any documents so appearing any other steps which may appear to be necessary for preserving them and preventing interference with them.

(3)An application under this paragraph in Northern Ireland shall be made by a complaint on oath, in England and Wales by information on oath and in Scotland supported by evidence on oath.

(4)A warrant issued by a sheriff shall be authority for opening lockfast places and may authorise persons named in the warrant to accompany a constable who is executing it.

(5)The power exercisable by a justice of the peace under this paragraph in Northern Ireland may be exercised by the Secretary of State if, in addition to being satisfied as to the matters mentioned in sub-paragraph (1) above, it appears to him that the information which it would be necessary to provide in support of an application under that sub-paragraph would, if disclosed, be likely to place any person in danger or prejudice the capability of members of the Royal Ulster Constabulary to investigate acts of terrorism or the activities of a proscribed organisation.

Offences

4(1)A person is guilty of an offence if without reasonable excuse he fails to comply with a requirement imposed on him under paragraph 2 above.

(2)A person is guilty of an offence if, in purported compliance with such a requirement, he makes a statement which he knows to be false or misleading in a material particular or recklessly makes a statement which is false or misleading in a material particular.

(3)A person who—

(a)knows or has reasonable cause to suspect that an investigation by an authorised investigator is being carried out or is likely to be carried out by virtue of this Schedule; and

(b)falsifies, conceals, destroys or otherwise disposes of, or causes or permits the falsification, concealment, destruction or disposal of, documents which he knows or has reasonable cause to suspect are or would be relevant to such an investigation,

is guilty of an offence unless he proves that he had no intention of concealing the facts disclosed by the document from any person carrying out such an investigation.

(4)A person guilty of an offence under sub-paragraph (1) or (2) above is liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding five years or a fine or both;

(b)on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.

(5)A person guilty of an offence under sub-paragraph (3) above is liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding seven years or a fine or both;

(b)on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.

Admissibility of evidence

5A statement made by a person in response to a requirement imposed by virtue of paragraph 2 above may not be used in evidence against him except—

(a)on a prosecution for an offence under paragraph 4(2) above;

(b)on a prosecution for some other offence where he or a witness called on his behalf has in giving evidence made a statement inconsistent with the first-mentioned statement; or

(c)on a prosecution for perjury.

Restriction on disclosure of information

6(1)Information obtained by a person in his capacity as an authorised investigator may not be disclosed by him except to a constable or—

(a)for the purposes of any prosecution, whether in the United Kingdom or elsewhere;

(b)to any government department or Northern Ireland department or other authority or body discharging its functions on behalf of the Crown;

(c)to any competent authority; or

(d)for the purpose of assisting any public or other authority for the time being designated for the purposes of this paragraph by an order made by the Secretary of State to discharge any functions which are specified in the order.

(2)The following are competent authorities for the purposes of sub-paragraph (1)(c) above—

(a)an inspector appointed under Part XIV of the [1985 c. 6.] Companies Act 1985 or Part XV of the [S.I. 1986/1032 (N.I. 6).] Companies (Northern Ireland) Order 1986;

(b)an Official Receiver;

(c)the Accountant in Bankruptcy;

(d)an Official Assignee;

(e)a person appointed to carry out an investigation under section 55 of the [1986 c. 53.] Building Societies Act 1986;

(f)a body administering a compensation scheme under section 54 of the [1986 c. 60.] Financial Services Act 1986;

(g)an inspector appointed under section 94 of that Act;

(h)a person exercising powers by virtue of section 106 of that Act;

(i)an inspector appointed under section 177 of that Act or any corresponding enactment having effect in Northern Ireland;

(j)a person appointed by the Bank of England under section 41 of the [1987 c. 22.] Banking Act 1987 to carry out an investigation and make a report;

(k)a person exercising powers by virtue of section 44(2) of the [1982 c. 50.] Insurance Companies Act 1982;

(l)any body having supervisory, regulatory or disciplinary functions in relation to any profession or any area of commercial activity; and

(m)any person or body having, under the law of any country or territory outside the United Kingdom, functions corresponding to any of the functions of any person or body mentioned in any of the foregoing paragraphs.

(3)An order under paragraph (d) of sub-paragraph (1) above may impose conditions subject to which, and otherwise restrict the circumstances in which, information may be disclosed under that paragraph.

Code of practice

7(1)The Secretary of State shall make a code of practice in connection with the exercise by authorised investigators of the powers conferred by this Schedule.

(2)When the Secretary of State proposes to issue the code of practice under this paragraph he shall prepare and publish a draft of the code, shall consider any representations made to him about the draft and may modify the draft accordingly.

(3)The Secretary of State shall lay before both Houses of Parliament a draft of the code of practice prepared by him under this paragraph; and when he has laid the draft of the code before both Houses he may bring the code into operation by an order made by him.

(4)An order bringing the code of practice into operation may contain such transitional provisions or savings as appear to the Secretary of State to be necessary or expedient in connection with the code.

(5)The Secretary of State may from time to time revise the whole or any part of the code of practice issued by him under this paragraph and issue the code as revised; and the foregoing provisions of this paragraph shall apply (with appropriate modifications) to such a revised code as they apply to the first issue of the code.

(6)A failure on the part of an authorised investigator to comply with any provision of a code of practice issued under this paragraph shall not of itself render him liable to any criminal or civil proceedings.

(7)In all criminal and civil proceedings such a code shall be admissible in evidence; and if any provision of such a code appears to the court or tribunal conducting the proceedings to be relevant to any question arising in the proceedings it shall be taken into account in determining that question.

(8)In this paragraph “criminal proceedings” includes proceedings before a court-martial constituted under the [1955 c. 18.] Army Act 1955, the [1955 c. 19.] Air Force Act 1955 or the [1957 c. 53.] Naval Discipline Act 1957 or a disciplinary court constituted under section 50 of the said Act of 1957 and proceedings before the Courts-Martial Appeal Court.

(9)Nothing in paragraph (8) of Article 66 of the [S.I. 1989/1341 (N.I. 12).] Police and Criminal Evidence (Northern Ireland) Order 1989 or subsection (9) of section 67 of the [1984 c. 60.] Police and Criminal Evidence Act 1984 shall require authorised investigators to have regard in exercising the powers conferred by this Schedule to any provision of a code under that Order or that Act.

Section 60.

SCHEDULE 6Independent Assessor of Military Complaints Procedures in Northern Ireland

Tenure of office

1(1)Subject to the following provisions of this paragraph, the Independent Assessor shall hold and vacate office in accordance with the terms of his appointment.

(2)The Independent Assessor shall be appointed for a term not exceeding three years.

(3)The Independent Assessor may at any time resign his office by notice in writing addressed to the Secretary of State.

(4)The Secretary of State may remove the Independent Assessor from office—

(a)if he has without reasonable excuse failed to carry out his duties for a continuous period of six months or more;

(b)if he has been convicted of a criminal offence;

(c)if a bankruptcy order has been made against him, his estate has been sequestrated or he has made a composition or arrangement with, or granted a trust deed for, his creditors; or

(d)if the Secretary of State is satisfied that he is otherwise unable or unfit to perform his functions.

(5)At the end of a term of appointment the Independent Assessor shall be eligible for re-appointment.

Remuneration etc.

2(1)There shall be paid to the Independent Assessor such remuneration and such travelling and other allowances as the Secretary of State may determine.

(2)In the case of any such holder of the office of Independent Assessor as may be determined by the Secretary of State, there shall be paid such pension, allowances or gratuities to or in respect of him, or such payments towards the provision of a pension to or in respect of him, as may be so determined.

(3)The approval of the Treasury shall be required for the making of a determination under this paragraph.

Staff

3(1)The Independent Assessor may appoint such number of employees as he may determine.

(2)The remuneration and other terms and conditions of service of persons employed by the Independent Assessor shall be such as he may determine.

(3)The approval of the Secretary of State, given with the consent of the Treasury, shall be required for the making of a determination under this paragraph.

Reports

4(1)The Independent Assessor shall prepare an annual report on the performance of his functions which he shall submit to the Secretary of State who shall cause it to be published and lay copies of it before each House of Parliament.

(2)The Independent Assessor may make a report to the Secretary of State about any matter which comes to his attention in the course of the performance of his functions.

Disqualification

5In Part III of Schedule 1 to the [1975 c. 25.] Northern Ireland Assembly Disqualification Act 1975 (other disqualifying offices), the following entry shall be inserted at the appropriate place— Independent Assessor of Military Complaints Procedures in Northern Ireland.

Section 70(3).

SCHEDULE 7Consequential Amendments

The Rehabilitation of Offenders (Northern Ireland) Order 1978

1In Article 3(2)(a) of the [S.I.1978/1908 (N.I.27).] Rehabilitation of Offenders (Northern Ireland) Order 1978 the reference to a fine or other sum adjudged to be paid by or imposed on a conviction does not include a reference to an amount payable under a confiscation order made under section 47 of this Act.

The Bankruptcy Amendment (Northern Ireland) Order 1980

2Article 31 of the [S.I.1980/561 (N.I.4).] Bankruptcy Amendment (Northern Ireland) Order 1980 shall have effect as if amounts payable under confiscation orders made under section 47 of this Act were debts excepted under paragraph (1)(a) of that Article.

The Fines and Penalties (Northern Ireland) Order 1984

3In Article 17(2) of the [S.I.1984/703 (N.I.3).] Fines and Penalties (Northern Ireland) Order 1984 after paragraph (i) there shall be inserted—

(j)the Table in section 35(2) of the Criminal Justice Act (Northern Ireland) 1945 as it has effect by virtue of paragraph 2(1)(b) of Schedule 4 to the Northern Ireland (Emergency Provisions) Act 1991.

The Elected Authorities (Northern Ireland) Act 1989

4(1)The [1989 c. 3.] Elected Authorities (Northern Ireland) Act 1989 shall be amended as follows.

(2)In section 6(5), in the definition of “proscribed organisation” for the words “section 21 of the Northern Ireland (Emergency Provisions) Act 1978” there shall be substituted the words “section 28 of the Northern Ireland (Emergency Provisions) Act 1991”.

(3)In Schedule 2 for the words “Schedule 2 to the Northern Ireland (Emergency Provisions) Act 1978” there shall be substituted the words “Schedule 2 to the Northern Ireland (Emergency Provisions) Act 1991”.

The Prevention of Terrorism (Temporary Provisions) Act 1989

5(1)The [1989 c. 4.] Prevention of Terrorism (Temporary Provisions) Act 1989 shall be amended as follows.

(2)In section 10(3) for the words “section 21 of the Northern Ireland (Emergency Provisions) Act 1978” there shall be substituted the words “section 28 of the Northern Ireland (Emergency Provisions) Act 1991”.

(3)In section 17(1)(a)—

(a)for the words “section 21 of the Northern Ireland (Emergency Provisions) Act 1978” there shall be substituted the words “section 27 or 28 of the Northern Ireland (Emergency Provisions) Act 1991”;

(b)for the words “section 21 of the said Act of 1978” there shall be substituted the words “section 28 of the said Act of 1991”;

(c)for the words “section 21(4) of that Act” there shall be substituted the words “section 28(3) of that Act”.

(4)In section 27(10) for the words “section 21 of the Northern Ireland (Emergency Provisions) Act 1978” there shall be substituted the words “section 28 of the Northern Ireland (Emergency Provisions) Act 1991”.

(5)For subsection (11) of section 27 there shall be substituted—

(11)The provisions excluded by subsection (10) above from subsection (5) shall remain in force until 15th June 1992 and then expire but shall be—

(a)included in the provisions to which subsection (3) of section 69 of the said Act of 1991 applies (provisions that can be continued in force, repealed or revived by order); and

(b)treated as part of that Act for the purposes of subsection (9) of that section (repeal at end of five years).

(6)In paragraph 7(4) of Schedule 3 for the words “sections 14 and 15 of the Northern Ireland (Emergency Provisions) Act 1987” there shall be substituted the words “sections 44 and 45 of the Northern Ireland (Emergency Provisions) Act 1991”.

(7)In paragraph 8(1) of Schedule 4, in the definition of “a Northern Ireland order” after the words “paragraph 23” there shall be inserted the words “or 25A”.

(8)In paragraph 18(1) of Schedule 4, in the definition of “a Northern Ireland order” after the words “paragraph 23” there shall be inserted the words “or 25A”.

(9)After paragraph 25 of Schedule 4 there shall be inserted—

25A(1)The power to make a restraint order under the provisions of paragraphs 23 and 24 above shall be exercisable by the Secretary of State in any case in which it appears to him that the information which it would be necessary to provide in support of an application to the High Court or a judge under those provisions would, if disclosed, be likely to place any person in danger or prejudice the capability of members of the Royal Ulster Constabulary or a person authorised under section 57 of the Northern Ireland (Emergency Provisions) Act 1991 to investigate an offence under Part III of this Act.

(2)In their application by virtue of sub-paragraph (1) above paragraphs 23 to 25 above shall have effect with the necessary modifications and as if references to the High Court were references to the Secretary of State.

(3)An order made by the Secretary of State by virtue of this paragraph may be varied or discharged by the High Court under paragraph 23(5) or 24(2) above.

25B(1)A person who, without lawful authority or reasonable excuse (the proof of which lies on him), contravenes a restraint order is guilty of an offence and liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding fourteen years or a fine or both;

(b)on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.

(2)Nothing in sub-paragraph (1) above shall be taken to prejudice any power of the High Court to deal with the contravention of a restraint order as a contempt of court.

The Police and Criminal Evidence (Northern Ireland) Order 1989

6(1)The [S.I.1989/1341 (N.I.12).] Police and Criminal Evidence (Northern Ireland) Order 1989 shall be amended as follows.

(2)In Article 4(3), for paragraph (b) there shall be substituted—

(b)section 19, section 20 (insofar as the powers under that section are exercisable by a constable) and section 26 of the Northern Ireland (Emergency Provisions) Act 1991, and.

(3)In Article 30(3) for the words “section 14(2) of the Northern Ireland (Emergency Provisions) Act 1978” there shall be substituted the words “section 18(2) of the Northern Ireland (Emergency Provisions) Act 1991”.

(4)In Article 54(2) for the words “section 15(3)(b) of the Northern Ireland (Emergency Provisions) Act 1978” there shall be substituted the words “section 19(6)(b) of the Northern Ireland (Emergency Provisions) Act 1991”.

(5)In Article 74(9) for the words “section 8 of the Northern Ireland (Emergency Provisions) Act 1978” there shall be substituted the words “section 11 of the Northern Ireland (Emergency Provisions) Act 1991”.

(6)In Article 76(2)(b) for the words “subsection (1) of section 8 of the Northern Ireland (Emergency Provisions) Act 1978” there shall be substituted the words “subsection (1) of section 11 of the Northern Ireland (Emergency Provisions) Act 1991”.

The Insolvency (Northern Ireland) Order 1989

7Article 255 of the [S.I.1989/2405 (N.I.19).] Insolvency (Northern Ireland) Order 1989 shall have effect as if the reference to a fine included a reference to a confiscation order made under section 47 of this Act.

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

8In Article 2(4)(b) of the [S.I.1990/2588 (N.I.17).] Criminal Justice (Confiscation) (Northern Ireland) Order 1990 after “1989” there shall be inserted the words “or a relevant offence within the meaning of Part VII of the Northern Ireland (Emergency Provisions) Act 1991”.

Section 70(4).

SCHEDULE 8Repeals and Revocations

Part IEnactments

ChapterShort titleExtent of repeal
1978 c. 5.The Northern Ireland (Emergency Provisions) Act 1978.The whole Act.
1978 c. 23.The Judicature (Northern Ireland) Act 1978.In Part II of Schedule 5 the entry relating to the Northern Ireland (Emergency Provisions) Act 1978.
1980 c. 47.The Criminal Appeal (Northern Ireland) Act 1980.In Schedule 4, paragraph 14.
1982 c. 28.The Taking of Hostages Act 1982.Section 2(3).
1982 c. 36.The Aviation Security Act 1982.In Schedule 2, paragraph 6.
1983 c. 18.The Nuclear Material (Offences) Act 1983.Section 4(3).
1987 c. 30.The Northern Ireland (Emergency Provisions) Act 1987.The whole Act.
1989 c. 4.The Prevention of Terrorism (Temporary Provisions) Act 1989.Sections 21 to 24.Section 27(2) and (12).In section 28(2)(a) the words “sections 21 to 24”.In Schedule 8, paragraphs 3 and 8.
1989 c. 6.The Official Secrets Act 1989.In Schedule 1, paragraph 2.
1990 c. 31.The Aviation and Maritime Security Act 1990.In Schedule 3, paragraph 5.

Part IIOrders and Regulations

NumberTitleExtent of revocation
S.I.1979/ 746.The Northern Ireland (Emergency Provisions) Act 1978 (Amendment) Order 1979.The whole Order.
S.I.1981/ 155 (N.I.2).The Firearms (Northern Ireland) Order 1981.In Schedule 4, paragraphs 3 and 4.
S.I.1981/ 228 (N.I.8).The Legal Aid, Advice and Assistance (Northern Ireland) Order 1981.In Schedule 3 the entry relating to the Northern Ireland (Emergency Provisions) Act 1978.
S.I.1981/ 1675 (N.I.26).The Magistrates' Courts (Northern Ireland) Order 1981.In Schedule 6, paragraph 48.
S.I.1986/75.The Northern Ireland (Emergency Provisions) Act 1978 (Amendment) Order 1986.The whole Order.
S.I.1989/ 510.The Northern Ireland (Emergency Provisions) (Amendment) Regulations 1989.The whole Regulations.
S.I.1989/ 1341 (N.I.12).The Police and Criminal Evidence (Northern Ireland) Order 1989.In Schedule 2 the entry relating to the Northern Ireland (Emergency Provisions) Act 1978.
S.I.1989/ 1501.The Northern Ireland (Emergency Provisions) Act 1978 (Amendment) Order 1989.The whole Order.
S.I.1990/ 758.The Northern Ireland (Emergency Provisions) Act 1978 (Amendment) Order 1990.The whole Order.

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