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Proceeds of Crime Act 2002

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[F1ForfeitureU.K.

Textual Amendments

F1Pt. 5 Ch. 3A inserted (27.4.2017 for specified purposes, 31.10.2017 for the insertion of ss. 303G, 303H for E.W.S. so far as not already in force, 30.1.2018 for the insertion of s. 303E(4) for E.W.S. so far as not already in force, 16.4.2018 for E.W.S. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 15, 58(1)(6); S.I. 2017/991, reg. 2(d); S.I. 2018/78, regs. 2(a), 4(b)

303OForfeitureU.K.

(1)While property is detained under this Chapter, an application for the forfeiture of the whole or any part of it may be made—

(a)to a magistrates' court by a person specified in subsection (2);

(b)to the sheriff by the Scottish Ministers.

(2)The persons referred to in subsection (1)(a) are—

(a)the Commissioners for Her Majesty's Revenue and Customs,

(b)a constable,

(c)an SFO officer, or

(d)an accredited financial investigator who falls within a description specified in an order made for the purposes of this Chapter by the Secretary of State [F2or the Welsh Ministers] under section 453.

(3)The court or sheriff may order the forfeiture of the property or any part of it if satisfied that—

(a)the property is a listed asset, and

(b)what is to be forfeited is recoverable property or intended by any person for use in unlawful conduct.

(4)An order under subsection (3) made by a magistrates' court may provide for payment under section 303U of reasonable legal expenses that a person has reasonably incurred, or may reasonably incur, in respect of—

(a)the proceedings in which the order is made, or

(b)any related proceedings under this Chapter.

(5)A sum in respect of a relevant item of expenditure is not payable under section 303U in pursuance of provision under subsection (4) unless—

(a)the person who applied for the order under subsection (3) agrees to its payment, or

(b)the court has assessed the amount allowed in respect of that item and the sum is paid in respect of the assessed amount.

(6)For the purposes of subsection (5)—

(a)a “relevant item of expenditure” is an item of expenditure to which regulations under section 286B would apply if the order under subsection (3) had instead been a recovery order;

(b)an amount is “allowed” in respect of a relevant item of expenditure if it would have been allowed by those regulations;

(c)if the person who applied for the order under subsection (3) was a constable, an SFO officer or an accredited financial investigator, that person may not agree to the payment of a sum unless the person is a senior officer or is authorised to do so by a senior officer.

(7)“Senior officer” has the same meaning in subsection (6)(c) as it has in section 303E.

(8)Subsection (3) ceases to apply on the transfer of an application made under this section in accordance with section 303R(1)(a) or (b).

(9)Where an application for the forfeiture of any property is made under this section, the property is to be detained (and may not be released under any power conferred by this Chapter) until any proceedings in pursuance of the application (including any proceedings on appeal) are concluded.

(10)Where the property to which the application relates is being detained under this Chapter as part of an item of property, having been seized under section 303J(2), subsection (9) is to be read as if it required the continued detention of the whole of the item of property.

Textual Amendments

Modifications etc. (not altering text)

303PAssociated and joint propertyU.K.

(1)Sections 303Q and 303R apply if—

(a)an application is made under section 303O in respect of property detained under this Chapter,

(b)the court or sheriff is satisfied that the property is a listed asset,

(c)the court or sheriff is satisfied that all or part of the property is recoverable property or intended by any person for use in unlawful conduct, and

(d)there exists property that is associated with the property in relation to which the court or sheriff is satisfied as mentioned in paragraph (c).

(2)Sections 303Q and 303R also apply in England and Wales and Northern Ireland if—

(a)an application is made under section 303O in respect of property detained under this Chapter,

(b)the court is satisfied that the property is a listed asset,

(c)the court is satisfied that all or part of the property is recoverable property, and

(d)the property in relation to which the court is satisfied as mentioned in paragraph (c) belongs to joint tenants and one of the tenants is an excepted joint owner.

(3)In this section and sections 303Q and 303R “associated property” means property of any of the following descriptions that is not itself the forfeitable property—

(a)any interest in the forfeitable property;

(b)any other interest in the property in which the forfeitable property subsists;

(c)if the forfeitable property is a tenancy in common, the tenancy of the other tenant;

(d)if (in Scotland) the forfeitable property is owned in common, the interest of the other owner;

(e)if the forfeitable property is part of a larger property, but not a separate part, the remainder of that property.

References to property being associated with forfeitable property are to be read accordingly.

(4)In this section and sections 303Q and 303R the “forfeitable property” means the property in relation to which the court or sheriff is satisfied as mentioned in subsection (1)(c) or (2)(c) (as the case may be).

303QAgreements about associated and joint propertyU.K.

(1)Where—

(a)this section applies, and

(b)the person who applied for the order under section 303O (on the one hand) and the person who holds the associated property or who is the excepted joint owner (on the other hand) agree,

the magistrates' court or sheriff may, instead of making an order under section 303O(3), make an order requiring the person who holds the associated property or who is the excepted joint owner to make a payment to a person identified in the order.

(2)The amount of the payment is (subject to subsection (3)) to be the amount which the persons referred to in subsection (1)(b) agree represents—

(a)in a case where this section applies by virtue of section 303P(1), the value of the forfeitable property;

(b)in a case where this section applies by virtue of section 303P(2), the value of the forfeitable property less the value of the excepted joint owner's share.

(3)The amount of the payment may be reduced if the person who applied for the order under section 303O agrees that the other party to the agreement has suffered loss as a result of the seizure of the forfeitable property and any associated property under section 303J and its subsequent detention.

(4)The reduction that is permissible by virtue of subsection (3) is such amount as the parties to the agreement agree is reasonable, having regard to the loss suffered and any other relevant circumstances.

(5)An order under subsection (1) may, so far as required for giving effect to the agreement, include provision for vesting, creating or extinguishing any interest in property.

(6)An order under subsection (1) made by a magistrates' court may provide for payment under subsection (12) of reasonable legal expenses that a person has reasonably incurred, or may reasonably incur, in respect of—

(a)the proceedings in which the order is made, or

(b)any related proceedings under this Chapter.

(7)A sum in respect of a relevant item of expenditure is not payable under subsection (12) in pursuance of provision under subsection (6) unless—

(a)the person who applied for the order under section 303O agrees to its payment, or

(b)the court has assessed the amount allowed in respect of that item and the sum is paid in respect of the assessed amount.

(8)For the purposes of subsection (7)—

(a)a “relevant item of expenditure” is an item of expenditure to which regulations under section 286B would apply if the order under subsection (1) had instead been a recovery order;

(b)an amount is “allowed” in respect of a relevant item of expenditure if it would have been allowed by those regulations.

(9)For the purposes of section 308(2), on the making of an order under subsection (1), the forfeitable property is to be treated as if it had been forfeited.

(10)If there is more than one item of associated property or more than one excepted joint owner, the total amount to be paid under subsection (1), and the part of that amount which is to be provided by each person who holds any such associated property or who is an excepted joint owner, is to be agreed between both (or all) of them and the person who applied for the order under section 303O.

(11)If the person who applied for the order under section 303O was a constable, an SFO officer or an accredited financial investigator, that person may enter into an agreement for the purposes of any provision of this section only if the person is a senior officer or is authorised to do so by a senior officer.

“Senior officer” has the same meaning in this subsection as it has in section 303E.

(12)An amount received under an order under subsection (1) must be applied as follows—

(a)first, it must be applied in making any payment of legal expenses which, after giving effect to subsection (7), are payable under this subsection in pursuance of provision under subsection (6);

(b)second, it must be applied in payment or reimbursement of any reasonable costs incurred in storing or insuring the forfeitable property and any associated property whilst detained under this Part;

(c)third, it must be paid—

(i)if the order was made by a magistrates' court, into the Consolidated Fund;

(ii)if the order was made by the sheriff, into the Scottish Consolidated Fund.

303RAssociated and joint property: default of agreementU.K.

(1)Where this section applies and there is no agreement under section 303Q, the magistrates' court or sheriff—

(a)must transfer the application made under section 303O to the relevant court if satisfied that the value of the forfeitable property and any associated property is £10,000 or more;

(b)may transfer the application made under section 303O to the relevant court if satisfied that the value of the forfeitable property and any associated property is less than £10,000.

(2)The “relevant court” is—

(a)the High Court, where the application under section 303O was made to a magistrates' court;

(b)the Court of Session, where the application under section 303O was made to the sheriff.

(3)Where (under subsection (1)(a) or (b)) an application made under section 303O is transferred to the relevant court, the relevant court may order the forfeiture of the property to which the application relates, or any part of that property, if satisfied that—

(a)the property is a listed asset, and

(b)what is to be forfeited is recoverable property or intended by any person for use in unlawful conduct.

(4)An order under subsection (3) made by the High Court may include provision of the type that may be included in an order under section 303O(3) made by a magistrates' court by virtue of section 303O(4).

(5)If provision is included in an order of the High Court by virtue of subsection (4) of this section, section 303O(5) and (6) apply with the necessary modifications.

(6)The relevant court may, as well as making an order under subsection (3), make an order—

(a)providing for the forfeiture of the associated property or (as the case may be) for the excepted joint owner's interest to be extinguished, or

(b)providing for the excepted joint owner's interest to be severed.

(7)Where (under subsection (1)(b)) the magistrates' court or sheriff decides not to transfer an application made under section 303O to the relevant court, the magistrates' court or sheriff may, as well as making an order under section 303O(3), make an order—

(a)providing for the forfeiture of the associated property or (as the case may be) for the excepted joint owner's interest to be extinguished, or

(b)providing for the excepted joint owner's interest to be severed.

(8)An order under subsection (6) or (7) may be made only if the relevant court, the magistrates' court or the sheriff (as the case may be) thinks it just and equitable to do so.

(9)An order under subsection (6) or (7) must provide for the payment of an amount to the person who holds the associated property or who is an excepted joint owner.

(10)In making an order under subsection (6) or (7), and including provision in it by virtue of subsection (9), the relevant court, the magistrates' court or the sheriff (as the case may be) must have regard to—

(a)the rights of any person who holds the associated property or who is an excepted joint owner and the value to that person of that property or (as the case may) of that person's share (including any value that cannot be assessed in terms of money), and

(b)the interest of the person who applied for the order under section 303O in realising the value of the forfeitable property.

(11)If the relevant court, the magistrates' court or the sheriff (as the case may be) is satisfied that—

(a)the person who holds the associated property or who is an excepted joint owner has suffered loss as a result of the seizure of the forfeitable property and any associated property under section 303J and its subsequent detention, and

(b)the circumstances are exceptional,

an order under subsection (6) or (7) may require the payment of compensation to that person.

(12)The amount of compensation to be paid by virtue of subsection (11) is the amount the relevant court, the magistrates' court or the sheriff (as the case may be) thinks reasonable, having regard to the loss suffered and any other relevant circumstances.

(13)Compensation to be paid by virtue of subsection (11) is to be paid in the same way that compensation is to be paid under section 303W.

303SSections 303O to 303R: appealsU.K.

(1)Any party to proceedings for an order for the forfeiture of property under section 303O may appeal against—

(a)the making of an order under section 303O;

(b)the making of an order under section 303R(7);

(c)a decision not to make an order under section 303O unless the reason that no order was made is that an order was instead made under section 303Q;

(d)a decision not to make an order under section 303R(7).

Paragraphs (c) and (d) do not apply if the application for the order under section 303O was transferred in accordance with section 303R(1)(a) or (b).

(2)Where an order under section 303Q is made by a magistrates' court, any party to the proceedings for the order (including any party to the proceedings under section 303O that preceded the making of the order) may appeal against a decision to include, or not to include, provision in the order under subsection (6) of section 303Q.

(3)An appeal under this section lies—

(a)in relation to England and Wales, to the Crown Court;

(b)in relation to Scotland, to the Sheriff Appeal Court;

(c)in relation to Northern Ireland, to a county court.

(4)An appeal under this section must be made before the end of the period of 30 days starting with the day on which the court makes the order or decision.

(5)The court hearing the appeal may make any order it thinks appropriate.

(6)If the court upholds an appeal against an order forfeiting property, it may order the release of the whole or any part of the property.

303TRealisation of forfeited propertyU.K.

(1)If property is forfeited under section 303O or 303R, a relevant officer must realise the property or make arrangements for its realisation.

(2)But the property is not to be realised—

(a)before the end of the period within which an appeal may be made (whether under section 303S or otherwise), or

(b)if an appeal is made within that period, before the appeal is determined or otherwise disposed of.

(3)The realisation of property under subsection (1) must be carried out, so far as practicable, in the manner best calculated to maximise the amount obtained for the property.

303UProceeds of realisationU.K.

(1)The proceeds of property realised under section 303T must be applied as follows—

(a)first, they must be applied in making any payment required to be made by virtue of section 303R(9);

(b)second, they must be applied in making any payment of legal expenses which, after giving effect to section 303O(5) (including as applied by section 303R(5)), are payable under this subsection in pursuance of provision under section 303O(4) or, as the case may be, 303R(4);

(c)third, they must be applied in payment or reimbursement of any reasonable costs incurred in storing or insuring the property whilst detained under this Part and in realising the property;

(d)fourth, they must be paid—

(i)if the property was forfeited by a magistrates' court or the High Court, into the Consolidated Fund;

(ii)if the property was forfeited by the sheriff or the Court of Session, into the Scottish Consolidated Fund.

(2)If what is realised under section 303T represents part only of an item of property seized under section 303J and detained under this Chapter, the reference in subsection (1)(c) to costs incurred in storing or insuring the property is to be read as a reference to costs incurred in storing or insuring the whole of the item of property.]

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