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Proceeds of Crime Act 2002

Part 11: Co-operation

Section 443: Enforcement in different parts of the United Kingdom

593.This section provides for restraint, receivership and confiscation orders, including ancillary orders, and investigation orders and warrants under Part 8, made in each of three jurisdictions of the United Kingdom to be enforced in the other. The arrangements for such enforcement are to be made by Order in Council. Subsection (2) enables provision to be made so that the functions of a receiver or, in Scotland, an administrator may be recognised in the other jurisdictions. The section also provides for the amendment and application of other legislation for the specific narrow purpose of achieving the successful conversion of orders between the different jurisdictions.

Section 444: External requests and orders

594.Section 444 provides for the freezing of property in the United Kingdom which may be needed to satisfy overseas orders in relation to the recovery of criminal proceeds, and for the enforcement of such orders by the realisation of property in any part of the United Kingdom. Such provision is to be made by Order in Council, and corresponds to provisions in Parts 2, 3 & 4 or Part 5 (excluding Chapter 3). Similar provisions in existing legislation are to be found in sections 39 and 40 of the Drug Trafficking Act 1994, sections 96 and 97 of the Criminal Justice Act 1988, sections 40 and 41 of the Proceeds of Crime (Scotland) Act 1995 and Article 42 of the Proceeds of Crime (Northern Ireland) Order 1996.

595.It should be noted that there is another scheme, in section 9 of the Criminal Justice (International Co-operation) Act 1990, for the enforcement in the United Kingdom, also by Order in Council, of forfeiture orders made overseas. However, these forfeiture orders are restricted to orders for the disposal of “instrumentalities” of crime (i.e. items used, or intended for use, in the commission of criminal offences). The Act makes no change to section 9 and does not affect the operation of the Orders in Council made under it.

596.It should also be noted that section 444 will, as in domestic cases under Parts 2 to 4 of the Act, enable restraint orders to be granted from the start of a criminal investigation. The Home Secretary may therefore, by Order in Council under this section, provide for the United Kingdom’s courts to restrain assets at the request of a foreign jurisdiction at an earlier stage in proceedings than is possible at present.

597.Under current legislation, assistance in freezing property and enforcing overseas orders may only be granted to countries and territories which have been “designated” for the purpose. Section 444 dispenses with the designation procedure and has been constructed so that asset recovery assistance can, like other forms of judicial co-operation under the Criminal Justice (International Co-operation) Act 1990 be granted to an external jurisdiction without the need for the country concerned to be designated.

Section 445: External investigations

598.Section 445 makes provision for investigative powers to be made available in respect of overseas investigations. These will be provided by Order in Council which will be subject to annulment in pursuance of a resolution of either House (section 459(4)). The domestic investigation orders and warrants are provided in Part 8; subsection (1) allows these powers to be made available for external investigations and permits the creation of offences which are equivalent to offences created in Part 8 in relation to external investigations. Such offences would include the offence of prejudicing an investigation and the offence of failing to comply with a customer information or disclosure order in respect of an overseas investigation. External investigations are defined at section 447(3) as the overseas equivalents to domestic confiscation, money laundering and civil recovery investigations. Subsection (3) provides that disclosure orders will not be available for external money laundering investigations. Subsection (2) allows for investigation powers corresponding to those in Part 8 to be applied, with any necessary modifications, for use in response to a request from an overseas authority.

Section 447: Interpretation

599.Section 447(2) makes an external order, which is made in relation to the recovery of the proceeds of crime, enforceable in the United Kingdom regardless of the form it takes. It could be an order made against a person (an “in personam” order) or an order made against property (an “in rem” order, as in civil forfeiture proceedings in the USA). It could be a forfeiture order (an order changing the title of property), an order to a person to pay a sum of money or some other kind of order.

600.The external order must have been made by an overseas court (as defined by subsection (10)). It is immaterial what kind of court proceedings the external order is made in. It could be made in criminal proceedings, civil proceedings or some other court proceedings. However, non-court orders such as “administrative” confiscation orders made by police officers and similar authorities are excluded from this scheme.

601.An external order is defined as being for the recovery of specified property or a specified sum of money (subsection (2)(b)). This will enable external orders to be enforced, whether they are orders for the recovery of particular tainted property or orders for specified sums of money that may be satisfied out of any property, legally or illegally obtained.

602.Subsection (11) defines “overseas authority”. This section of the Act refers to “overseas authority” rather than “overseas government” because it will not always be the government of a country which has responsibility for the functions outlined at subsection (11)(a) – (c).

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