The Drug Trafficking Offences Act 1986 (United States of America) Order 1989

Article 3(2)

SCHEDULE 1 MODIFICATIONS OF THE DRUG TRAFFICKING OFFENCES ACT 1986

1.  For section 1 there shall be substituted the following section:

“1.    Confiscation orders

(1) An order made by a court of the United States of America for the purpose of recovering payments or other rewards received in connection with drug trafficking or their value is referred to in this Act as a “confiscation order”, and for the purposes of its registration under section 26A of this Act, “external confiscation order” means any such order.

(2) In subsection (1) above the reference to an order includes any order, decree, direction or judgment, however described.

(3) A person against whom a confiscation order has been made or a person against whom proceedings which may result in a confiscation order being made have been, or are to be, instituted in a court of the United States of America, is referred to in this Act as “the defendant”.”.

2.  Sections 2 to 4 shall be omitted.

3.  In section 5–

(a) for subsection (1) there shall be substituted the following subsection:

“(1) In this Act “realisable property” means, subject to subsection (2) below–

(a) in relation to a confiscation order made in respect of specified property, the property which is specified in the order; and

(b) in any other case, any property held by the defendant.”

(b) subsections (3) to (10) shall be omitted.

4.  Section 6 shall be omitted.

5.  In section 7–

(a) for subsection (1)(a) there shall be substituted:

“(a) proceedings have been instituted against the defendant in the United States of America,”;

(b) for subsection (1)(c) there shall be substituted:

“(c) either a confiscation order has been made in the proceedings or it appears to the High Court that there are reasonable grounds for thinking that a confiscation order may be made in them”;

(c) for subsection (2) there shall be substituted the following subsection:

“(2) Those powers are also exercisable where the High Court is satisfied that proceedings are to be instituted against a person in the United States of America and it appears to the court that a confiscation order may be made in them.”;

(d) subsection (3) shall be omitted; and

(e) for subsection (4) there shall be substituted the following subsection:

“(4) Where the High Court has made an order under section 8(1) of 9(1) of this Act by virtue of subsection (2) above, it shall discharge the order if the proposed proceedings are not instituted within twenty-eight days.”.

6.  In section 8–

(a) for subsection (2)(a) and (b) there shall be substituted:

“(a) where an application under subsection (4) below relates to a confiscation order made in respect of specified property, to the property which is specified in that order; and

(b) in any other case–

(i) to all realisable property, whether the property is described in the restraint order or not, and

(ii) to realisable property, being property transferred to the defendant after the making of the restraint order.”;

(b) in subsection (4) for the words “the prosecutor” there shall be substituted the words “or on behalf of the government of the United States of America”;

(c) for subsection (5)(b) there shall be substituted:

“(b) shall be discharged when the proceedings in relation to which the order was made are concluded.”;

(d) in subsection (7)(b) and in subsection (8) for the words “Great Britain” there shall be substituted the words “England and Wales”;

(e) in subsection (11), for the words “the prosecutor” there shall be substituted the words “A person applying for a restraint order on behalf of the government of the United States of America”.

7.  In section 9–

(a) for subsection (1)(a) and (b) there shall be substituted the following:

“(a) where a fixed amount is payable under a confiscation order, of an amount not exceeding the amount so payable, and

(b) in any other case, of an amount equal to the value from time to time of the property charged.”;

(b) in subsection (3) for the words “the prosecutor” there shall be substituted the words “or on behalf of the government of the United States of America”;

(c) in subsection (4)(a) the words “or by a person to whom the defendant has directly or indirectly made a gift caught by this Act” shall be omitted;

(d) in subsection (7) for the words “for the offence” there shall be substituted the words “against the defendant in the United States of America”.

8.  In section 10, subsection (6) shall be omitted.

9.  After section 10 there shall be inserted the following section:

“10A.   Notwithstanding anything in rule 3(2) of Order 115 of the Rules of the Supreme Court 1965(1), an application under section 8(4) or 9(3) of this Act shall be supported by an affidavit which shall–

(a) state, where applicable, the grounds for believing that a confiscation order may be made in the proceedings instituted or to be instituted in the United States of America;

(b) to the best of the deponent’s ability, give particulars of the realisable property in respect of which the order is sought and specify the person or persons holding such property;

(c) where proceedings have not been instituted in the United States of America, indicate when it is intended that they should be instituted there,

and the affidavit may, unless the court otherwise directs, contain statements of information or belief with the sources and grounds thereof.”.

10.  In section 11–

(a) for subsection (1) of section 11 there shall be substituted the following subsection:

“(1) Where a confiscation order has been registered in the High Court under section 26A of this Act, the High Court may, on an application by or on behalf of the government of the United States of America, exercise the powers conferred by subsections (2) to (6) below.”; and

(b) in subsection (6) the words “or, as the case may be, the recipient of a gift caught by this Act” shall be omitted.

11.  The following section shall be substituted for section 12:

“Application of proceeds of realisation and other sums.

12.— (1) Subject to subsection (2) below, the following sums in the hands of a receiver appointed under section 8 or 11 of this Act or in pursuance of a charging order, that is–

(a) the proceeds of the enforcement of any charge imposed under section 9 of this Act,

(b) the proceeds of the realisation, other than by the enforcement of such a charge, of any property under section 8 or 11 of this Act, 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 section 17A(2) of this Act and then shall, after such payments (if any) as the High Court may direct have been made out of those sums, be paid to the High Court and applied for the purposes specified in subsections (3) to (5) below and in the order so specified.

(2) Where a fixed amount is payable under the confiscation order and, after that amount has been fully paid, any such sums remain in the hands of such a receiver, the receiver shall distribute those sums–

(a) among such of those who held property which has been realised under this Act, 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) Any sums paid to the High Court under subsection (1) above shall first be applied to pay the receiver’s remuneration and expenses.

(4) Next, any amount paid under section 18(2) of this Act shall be reimbursed.

(5) Any sums remaining after all the payments required to be made under the foregoing provisions of this section have been made shall be paid to the Secretary of State and any sums so received by the Secretary of State shall be paid into the Consolidated Fund.”.

12.  In section 13–

(a) in subsection (2), for the words from “making available” to the end of the subsection there shall be substituted the words “recovering property which is liable to be recovered under a confiscation order registered in the High Court under section 26A of this Act or, as the case may be, with a view to making available for recovery property which may become liable to be recovered under any confiscation order which may be made in the defendant’s case.”;

(b) subsection (3) shall be omitted;

(c) in subsection (4), the words “or the recipient of any such gift” shall be omitted; and

(d) in subsection (6), the words “or of the recipient of any such gift” shall be omitted.

13.  Section 14 shall be omitted.

14.  In section 15–

(a) subsection (6) shall be omitted; and

(b) in subsection (7), for the words “the date on which the Insolvency Act 1986 comes into force” there shall be substituted the words “29th December 1986 (the date on which the Insolvency Act 1986 came into force)”.

15.  In section 16, subsection (6) shall be omitted.

16.  In subsection (6) of section 17, for the words “the date on which the Insolvency Act 1986 comes into force” there shall be substituted the words “29th December 1986 (the date on which the Insolvency Act 1986 came into force)”.

17.  In subsection (2) of section 17A, the words “or (3)(za)” shall be omitted.

18.  In subsection (2) of section 18, the letter “B” and the words “by the prosecutor or, in a case where proceedings for a drug trafficking offence are not instituted,” shall be omitted.

19.  Section 19 and sections 24 to 26 shall be omitted.

20.  Sections 27 to 32 shall be omitted.

21.  In section 33–

(a) in subsection (1), the words “(2) or”, and

(b) subsections (2) and (3)

shall be omitted.

22.  Sections 34 to 37 shall be omitted.

23.  In section 38–

(a) in subsection (1)–

(i) the definitions of “authorised government department”, “drug trafficking offence” and “interest” shall be omitted;

(ii) before the definition of “constable” there shall be inserted the following words:

““a court of the United States of America” means a court of the United States of America or of any of its states or territories;”; and

(iii) after the definition of “drug trafficking” there shall be inserted the following words:

““proceeds of drug trafficking” includes any payments or other rewards received by a person at any time (whether before or after the commencement of the Drug Trafficking Offences Act 1986 (United States of America) Order 1989) in connection with drug trafficking carried on by him or another;”;

(b) in subsection (2) for the list of expressions and relevant provisions there shall be substituted the following list:

“Expression	Relevant provision
Charging order	Section 9(2)
Confiscation order	Section 1
Dealing with property	Section 8(7)
Defendant	Section 1
Realisable property	Section 5(1)
Restraint order	Section 8(1)”;

(c) subsections (4) and (10) shall be omitted;

(d) in subsection (11), for the words from “are instituted” to the end of the subsection, there shall be substituted the words “the United States when an indictment, information or complaint has been filed against a person in respect of an offence.”; and

(e) in subsection (12)(b), for the words from “payment” to the end of the subsection there shall be substituted the words “the recovery of all property liable to be recovered, or the payment of any amount due, or otherwise).”.

24.  In section 39, subsections (2) and (4) shall be omitted.

25.  Section 40 shall be omitted.

(1)

S.I. 1965/1776. Order 115 was inserted by R.S.C. (Amendment No. 3) 1986 (S.I. 1986/2289).