The Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014 No. 3141

Statutory Instruments

2014 No. 3141

Criminal Law

Data Protection

The Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014

Made

2nd December 2014

Coming into force in accordance with regulation 1

The Secretary of State, being a Minister designated for the purposes of section 2(2) of the European Communities Act 1972 M1 in relation to criminal justice M2 and data protection M3 , in exercise of the powers conferred by that section, makes the following Regulations.

A draft of the Regulations has been laid before and approved by resolution of each House of Parliament in accordance with section 2(2) of, and paragraph 2(2) of Schedule 2 to, that Act.

Marginal Citations

M1 1972 c. 68; section 2(2) was amended by section 27(1)(a) of the Legislative and Regulatory Reform Act 2006 (c. 51), and by section 3(3) of, and Part 1 of the Schedule to, the European Union (Amendment) Act 2008 (c. 7).

M2 S.I. 2012/2752.

M3 S.I. 1998/2793.

PART 1 U.K. General

Citation and commencement U.K.

1.  These Regulations—

(a) may be cited as the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014; and

(b) come into force on the day after the day on which they are made.

F1 PART 2 U.K. Proceeds of Crime (Foreign Property and Foreign Orders)

Textual Amendments

F1 Pt. 2 revoked (31.12.2020) by The Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/742), regs. 1, 110(2) (with reg. 111) (as amended by S.I. 2020/1408, regs. 1, 5); 2020 c. 1, Sch. 5 para. 1(1)

F1 CHAPTER 1 U.K. General

Extent U.K.

F1 2.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Interpretation U.K.

F1 3.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Consequential amendments U.K.

F1 4.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1 CHAPTER 2 E+W England and Wales

Interpretation E+W

F1 5.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Domestic restraint orders: certification E+W

F1 6.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Sending domestic restraint orders and certificates overseas E+W

F1 7.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Sending overseas restraint orders to the court E+W

F1 8.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Giving effect to overseas restraint orders E+W

F1 9.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Registration and enforcement of overseas restraint orders E+W

F1 10.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Domestic confiscation orders: certification E+W

F1 11.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Sending domestic confiscation orders and certificates overseas E+W

F1 12.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Sending overseas confiscation orders to the court E+W

F1 13.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Giving effect to overseas confiscation orders E+W

F1 14.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Registration and enforcement of overseas confiscation orders E+W

F1 15.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1 CHAPTER 3 S Scotland

Provision in relation to the proceeds of crime as respects Scotland S

F1 16.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1 CHAPTER 4 N.I. Northern Ireland

Provision in relation to the proceeds of crime in relation to Northern Ireland N.I.

F1 17.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1 CHAPTER 5 U.K. Notification, communication etc., and application to saved orders

Notification, communication etc. U.K.

F1 18.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1 England and Wales E+W

Saved restraint orders E+W

F1 19.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Saved confiscation orders E+W

F1 20.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1 Scotland S

Saved restraint orders S

F1 21.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Saved confiscation orders S

F1 22.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1 Northern Ireland N.I.

Saved restraint orders N.I.

F1 23.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Saved confiscation orders N.I.

F1 24.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART 3 U.K. Mutual Recognition of Financial Penalties

Extent U.K.

25.  Any amendment or repeal made by Schedule 3 (mutual recognition of financial penalties: amendments of Criminal Justice and Immigration Act 2008) has the same extent as the enactment to which it relates, except that the amendment made by paragraph 9(2) of that Schedule extends to England and Wales and Northern Ireland.

Mutual recognition of financial penalties U.K.

26.  Schedule 3 amends provisions of the Criminal Justice and Immigration Act 2008 M4 relating to mutual recognition of financial penalties.

Marginal Citations

M4 2008 c. 4.

F2 PART 4 U.K. Data Protection in relation to Police and Judicial Cooperation in Criminal Matters

Textual Amendments

F2 Pt. 4 omitted (25.5.2018) by virtue of Data Protection Act 2018 (c. 12), s. 212(1), Sch. 19 para. 380 (with ss. 117, 209, 210, Sch. 20 paras. 2, 6, 15, 43); S.I. 2018/625, reg. 2(1)(g)

F2 CHAPTER 1 U.K. General

Interpretation U.K.

F2 27.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Scope U.K.

F2 28.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2 CHAPTER 2 U.K. Duties of competent authorities and rights of data subjects

Duties of competent authorities U.K.

F2 29.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Principles of lawfulness, proportionality and purpose U.K.

F2 30.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Rectification, erasure and blocking U.K.

F2 31.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Establishment of time limits for erasure and review U.K.

F2 32.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Processing of sensitive personal data U.K.

F2 33.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Automated individual decisions U.K.

F2 34.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Verification of quality of data that are transmitted or made available U.K.

F2 35.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Time limits U.K.

F2 36.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Logging and documentation U.K.

F2 37.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Processing of personal data received from or made available by an authority in another Member State U.K.

F2 38.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Compliance with national processing restrictions U.K.

F2 39.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Transfer to competent authorities in third countries or to international bodies U.K.

F2 40.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Transmission to private parties U.K.

F2 41.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Information on request of the competent authority U.K.

F2 42.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Information for the data subject U.K.

F2 43.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Right of access U.K.

F2 44.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Right to compensation U.K.

F2 45.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Confidentiality of processing U.K.

F2 46.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Security of processing U.K.

F2 47.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Prior consultation U.K.

F2 48.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2 CHAPTER 3 U.K. Miscellaneous

Unlawful obtaining etc. of personal data within the scope of this Part U.K.

F2 49.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Application of the Data Protection Act 1998 U.K.

F2 50.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Other functions of the Commissioner U.K.

F2 51.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Consequential provisions U.K.

F2 52.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3 PART 5 U.K. Exchange of Information and Intelligence between Law Enforcement Authorities

Textual Amendments

F3 Pt. 5 revoked (31.12.2020) by The Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/742), regs. 1, 43 (with regs. 42(2), 44-47) (as amended by S.I. 2020/1408, regs. 1, 15-18); 2020 c. 1, Sch. 5 para. 1(1)

Interpretation U.K.

F3 53.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Duty to provide information or intelligence U.K.

F3 54.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Time limits U.K.

F3 55.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Requests for information or intelligence U.K.

F3 56.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Spontaneous exchange of information or intelligence U.K.

F3 57.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Requirements for the sharing of information or intelligence U.K.

F3 58.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Reasons to withhold information or intelligence U.K.

F3 59.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Circulars U.K.

F3 60.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Joint investigation teams U.K.

F3 61.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F4 PART 6 U.K. Exchange of Information Relating to Criminal Convictions

Textual Amendments

F4 Pt. 6 revoked (31.12.2020) by The Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/742), regs. 1, 26 (with regs. 27, 28) (as amended by S.I. 2020/1408, regs. 1, 12, 13); 2020 c. 1, Sch. 5 para. 1(1)

Interpretation U.K.

F4 62.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Designation as a “central authority” U.K.

F4 63.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Obligations upon conviction of a national of a member State U.K.

F4 64.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Obligations upon receipt of information under Article 4(2) and (3) of the Framework Decision U.K.

F4 65.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Requests for information under Article 6 of the Framework Decision for the purposes of criminal proceedings, other purposes and by a person U.K.

F4 66.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Replies to a request for information under Article 6 of the Framework Decision in relation to criminal proceedings and proceedings other than criminal proceedings U.K.

F4 67.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Replies to a request for information under Article 6 of the Framework Decision by a third country U.K.

F4 68.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Replies to a request for information under Article 6 of the Framework Decision to a central authority of a member State other than the member State of the person's nationality U.K.

F4 69.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Form of reply to a request for information under Article 6 of the Framework Decision U.K.

F4 70.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Deadlines for replies to a request for information under Article 6 of the Framework Decision U.K.

F4 71.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Conditions for the use of personal data U.K.

F4 72.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Format and other ways of organising and facilitating exchanges of information on convictions U.K.

F4 73.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Further rules relating to the format of transmission of information: legal classification, etc U.K.

F4 74.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F5 PART 7 U.K. European Supervision Order

Textual Amendments

F5 Pt. 7 omitted (31.12.2020) by virtue of The Criminal Justice (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/780), regs. 1(1), 16(2) (with regs. 16A, 16B) (as amended by S.I. 2020/1408, regs. 1, 48); 2020 c. 1, Sch. 5 para. 1(1)

F5 CHAPTER 1 U.K. Extent

Extent U.K.

F5 75.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F5 CHAPTER 2 E+W European supervision orders: England and Wales

Interpretation E+W

F5 76.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F5 Recognition of supervision measures: requests to other member States E+W

Requests to other member States for monitoring supervision measures E+W

F5 77.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Requirements that may be imposed in connection with a request E+W

F5 78.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Recognition of request E+W

F5 79.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Power to withdraw certificate E+W

F5 80.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Duties where measures being monitored by executing State E+W

F5 81.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Request to extend maximum period for which measures may be monitored E+W

F5 82.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Court becoming responsible again for monitoring measures E+W

F5 83.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Consultation and exchange of information E+W

F5 84.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F5 Recognition of supervision measures: requests from other member States E+W

Requests from other member States for monitoring supervision measures E+W

F5 85.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Procedural requirements relating to decision under regulation 85(4) E+W

F5 86.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Adaptation of supervision measures E+W

F5 87.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Recognition of decision on supervision measures E+W

F5 88.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Duties of court responsible for monitoring supervision measures E+W

F5 89.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Power to stop monitoring where no response to notification of breach E+W

F5 90.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Power of arrest where magistrates' court responsible for monitoring supervision measures E+W

F5 91.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Renewal or modification of supervision measures which are being monitored E+W

F5 92.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Court ceasing to be responsible for monitoring measures E+W

F5 93.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Consultation and exchange of information E+W

F5 94.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F5 CHAPTER 3 N.I. European supervision orders: Northern Ireland

Interpretation N.I.

F5 95.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F5 Recognition of supervision measures: requests to other member States N.I.

Requests to other member States for monitoring supervision measures N.I.

F5 96.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Requirements that may be imposed in connection with a request N.I.

F5 97.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Recognition of request N.I.

F5 98.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Power to withdraw certificate N.I.

F5 99.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Duties where measures being monitored by executing State N.I.

F5 100.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Request to extend maximum period for which measures may be monitored N.I.

F5 101.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Court becoming responsible again for monitoring measures N.I.

F5 102.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Consultation and exchange of information N.I.

F5 103.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F5 Recognition of supervision measures: requests from other member States N.I.

Requests from other member States for monitoring supervision measures N.I.

F5 104.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Procedural requirements relating to decision under regulation 104(4) N.I.

F5 105.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Adaptation of supervision measures N.I.

F5 106.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Effect of recognition of decision on supervision measures N.I.

F5 107.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Duties of court responsible for monitoring supervision measures N.I.

F5 108.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Power to stop monitoring where no response to notification of breach N.I.

F5 109.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Power of arrest where magistrates' court responsible for monitoring supervision measures N.I.

F5 110.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Renewal or modification of supervision measures which are being monitored N.I.

F5 111.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Court ceasing to be responsible for monitoring measures N.I.

F5 112.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Consultation and exchange of information N.I.

F5 113.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART 8 U.K. Prisoner Transfer

Transfer of prisoners U.K.

114.—(1) The Repatriation of Prisoners Act 1984 M5 is amended as follows.

(2) In section 3A M6 (prosecution of other offences), in subsections (1)(a) and (3)(d) (in both places), for “Great Britain” substitute “ the United Kingdom ”.

(3) In section 6A M7 (transit)—

(a) in subsections (1)(b) and (3)(b), for “Great Britain” substitute “ the United Kingdom ”;

(b) in subsection (6), for “Great Britain” substitute “ the United Kingdom ”;

(c) in subsection (7), for “Great Britain” substitute “ the United Kingdom ”;

(d) in subsection (9)—

(i) in paragraph (a)(ii), for “Great Britain” substitute “ the United Kingdom ”;

(ii) after paragraph (a) insert—

“(aa) the Department of Justice in Northern Ireland, in a case where it is proposed that the person who is the subject of a request under subsection (1)(b) or (3)(b) will, whilst in transit—

(i) be present only in Northern Ireland, or

(ii) arrive in Northern Ireland before being taken to another part of the United Kingdom;”;

(e) in subsection (10) for “Great Britain”, in both places, substitute “ the United Kingdom ”.

(4) In section 6B (transit: supplementary), in subsections (4) and (11)(a) (in both places), for “Great Britain” substitute “ the United Kingdom ”.

(5) For section 6C substitute—

“6C    Transit through different parts of the United Kingdom

(1) Where—

(a) a transit order is issued by the Minister for one part of the United Kingdom (“jurisdiction A”), and

(b) it is proposed that the person who is the subject of the order will whilst in transit be taken to another part of the United Kingdom (“jurisdiction B”),

the Minister for jurisdiction A must notify the Minister for jurisdiction B.

(2) Notification need not be given where the Minister for jurisdiction B has agreed in writing to the transit order.

(3) Unless the Minister for jurisdiction B agrees in writing to the transit order, the order authorises the detention of the person subject to it in jurisdiction A only.

(4) But where the person escapes or is unlawfully at large, the order also authorises—

(a) the arrest of the person under section 6B(5) in a part of the United Kingdom other than jurisdiction A, and

(b) the detention of the person in that part by a constable (within the meaning of that section) for the purpose of taking the person to jurisdiction A.

(5) For the purposes of this section—

(a) the Minister for England and Wales, is the Secretary of State,

(b) the Minister for Scotland is the Scottish Ministers, and

(c) the Minister for Northern Ireland is the Department of Justice in Northern Ireland.”

(6) In section 6D (transit: unscheduled arrivals), in subsections (1)(c), (2), (3) (in both places) and (4), for “Great Britain” substitute “ the United Kingdom ”.

(7) In section 8 (interpretation and certificates) M8 —

(a) in subsection (1), omit the definition of “international arrangements”, and

(b) after subsection (2) insert—

“(2A) In this Act—

(a) “international arrangements” includes any arrangements between the United Kingdom and a British overseas territory, and

(b) references to a country or territory being a party to international arrangements include references to the country or territory being required to comply with provisions of a Framework Decision of the Council of the European Union (and references to international arrangements are to be construed accordingly).”.

(8) In section 9 M9 (short title, commencement and extent)—

(a) in subsection (3), omit “Subject to subsection (3A)”;

(b) omit subsection (3A).

Marginal Citations

M5 1984 c. 47.

M6 Section 3A was inserted by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), section 130.

M7 Sections 6A to 6D were inserted by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, section 131(1).

M8 Section 8 was amended by section 96 of, and Schedule 26 and Schedule 28 to, the Criminal Justice and Immigration Act 2008; S.I. 1999/1820; and S.I. 2010/976.

M9 Section 9 was amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, section 131(2).

Karen Bradley

Parliamentary Under Secretary of State

Home Office

Regulation 16

F6 SCHEDULE 1 S Proceeds of Crime (Foreign Property and Foreign Orders): Scotland

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F6 Sch. 1 revoked (31.12.2020) by The Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/742), regs. 1, 110(3) (with reg. 111) (as amended by S.I. 2020/1408, regs. 1, 5); 2020 c. 1, Sch. 5 para. 1(1)

Regulation 17

F7 SCHEDULE 2 N.I. Proceeds of Crime (Foreign Property and Foreign Orders): Northern Ireland

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F7 Sch. 2 revoked (31.12.2020) by The Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/742), regs. 1, 110(4) (with reg. 111) (as amended by S.I. 2020/1408, regs. 1, 5); 2020 c. 1, Sch. 5 para. 1(1)

Regulation 26

SCHEDULE 3 U.K. Mutual recognition of financial penalties: amendments of Criminal Justice and Immigration Act 2008

1.  The Criminal Justice and Immigration Act 2008 is amended as follows. U.K.

2.—(1) Section 81 (procedure on issue of certificate: England and Wales) is amended as follows. U.K.

(2) In subsection (2), for the words from “fines” to “other case)” substitute “ the relevant officer ”.

(3) After subsection (2) insert—

“(2A) The “relevant officer” means—

(a) the fines officer (in the case of a certificate issued by the officer), or

(b) the designated officer for the magistrates' court (in any other case).”.

(4) For subsection (4) substitute—

“(4) Subsections (4A) to (4C) apply where a certified copy of the decision is given to the central authority or competent authority of a member State in accordance with subsection (3).

(4A) No further steps to enforce the decision may be taken in England and Wales unless—

(a) an event mentioned in Article 15(2)(a) of the Framework Decision on financial penalties occurs in relation to the decision, or

(b) the relevant officer or the Lord Chancellor informs the central authority or competent authority as mentioned in subsection (4C)(b).

(4B) The relevant officer or the Lord Chancellor must inform the central authority or competent authority without delay if the officer receives any sum of money which the person concerned has paid voluntarily in respect of the decision requiring payment of the financial penalty.

(4C) The relevant officer or the Lord Chancellor must inform the central authority or competent authority forthwith of any decision or measure as a result of which the decision requiring payment of the financial penalty—

(a) ceases to be enforceable, or

(b) is withdrawn from the competent authority for any other reason.”.

3.—(1) Section 83 (procedure on issue of certificate: Northern Ireland) M10 is amended as follows. U.K.

(2) For subsection (4) substitute—

“(4) Subsections (4A) to (4C) apply where a certified copy of the decision is given to the central authority or competent authority of a member State in accordance with subsection (3).

(4A) No further steps to enforce the decision may be taken in Northern Ireland unless—

(a) an event mentioned in Article 15(2)(a) of the Framework Decision on financial penalties occurs in relation to the decision, or

(b) the designated officer or the Department of Justice informs the central authority or competent authority as mentioned in subsection (4C)(b).

(4B) The designated officer or the Department of Justice must inform the central authority or competent authority without delay if the officer receives any sum of money which the person concerned has paid voluntarily in respect of the decision requiring payment of the financial penalty.

(4C) The designated officer or the Department of Justice must inform the central authority or competent authority forthwith of any decision or measure as a result of which the decision requiring payment of the financial penalty—

(a) ceases to be enforceable, or

(b) is withdrawn from the competent authority for any other reason.”.

Marginal Citations

M10 Section 83 was amended by S.I. 2010/976.

4.  In section 84 (requests from other member States: England and Wales) M11 , in subsection (1)(a), for sub-paragraphs (i) and (ii) substitute— U.K.

“(i) a decision, or a certified copy of a decision, requiring payment of a financial penalty, and

(ii) a certificate requesting enforcement under the Framework Decision on financial penalties, and”.

Marginal Citations

M11 Section 84 was amended by S.I. 2010/976.

5.—(1) Section 85 (procedure on receipt of certificate by designated officer) is amended as follows. U.K.

(2) In subsection (1), for paragraphs (a) and (b) substitute—

“(a) a decision, or a certified copy of a decision, requiring payment of a financial penalty,

(b) a certificate requesting enforcement under the Framework Decision on financial penalties, and”.

(3) After subsection (4) insert—

“(4A) If the magistrates' court is of the view that one or more of the grounds for refusal mentioned in paragraphs A1, 2A and 6 of Schedule 19 may apply, the designated officer for the magistrates' court or the Lord Chancellor must, before the magistrates' court takes a decision under subsection (3)—

(a) consult the competent authority or central authority concerned, and

(b) request the authority to supply without delay any further information required.”.

(4) After subsection (7) insert—

“(7A) But any power of a magistrates' court to impose a relevant alternative sanction in connection with a default in paying the financial penalty—

(a) may be exercised only if its exercise is authorised by the certificate, and

(b) is subject to any provision of the certificate specifying the maximum level of sanction that may be imposed.

(7B) “Any power of a magistrates' court to impose a relevant alternative sanction” means any of the following powers conferred on a magistrates' court by virtue of subsection (6)—

(a) the power under section 76 of the Magistrates' Courts Act 1980 to issue a warrant committing a person to prison;

(b) the power under Schedule 6 to the Courts Act 2003 to make an order requiring a person to perform unpaid work;

(c) the power under section 300 of the Criminal Justice Act 2003 to order a person to comply with an unpaid work requirement, a curfew requirement or an attendance centre requirement;

(d) the power under section 301 of that Act to order a person to be disqualified for holding or obtaining a driving licence;

(e) the power under section 39 of this Act to order a person aged under 18 to comply with an unpaid work requirement, a curfew requirement or an attendance centre requirement.”.

(5) After subsection (7B) (as inserted by sub-paragraph (4) above) insert—

“(7C) If the person required to pay the financial penalty to which the certificate relates provides evidence that all or part of the penalty has been paid in any State, the designated officer for the magistrates' court or the Lord Chancellor must—

(a) consult the competent authority or central authority concerned, and

(b) request the authority to supply without delay any further information required.”.

(6) For subsection (8) substitute—

“(8) If—

(a) the certificate requesting enforcement under the Framework Decision on financial penalties states that part of the financial penalty has been paid,

(b) the Lord Chancellor is informed, in accordance with Article 15(3) of that Decision, that all or part of the financial penalty has been paid, or

(c) the magistrates' court is satisfied, having regard to evidence provided as mentioned in subsection (7C) and following consultation under that subsection, that all or part of the financial penalty has been paid in any State,

the references in subsections (6) and (7A) to the financial penalty are to be read as references to so much of the penalty as remains unpaid (and, accordingly, if none of the penalty remains unpaid, subsection (6) ceases to have effect in relation to the penalty).”.

(7) In relation to any time before the coming into force of section 61 of the Criminal Justice and Court Services Act 2000 (abolition of sentences of detention in a young offender institution), section 85(7B) of the Criminal Justice and Immigration Act 2008 applies as if after paragraph (a) there were inserted—

“(aa) the power under section 108 of the Powers of Criminal Courts (Sentencing) Act 2000 to commit a person to detention;”.

(8) In relation to any time before the coming into force of section 303(b)(iii) of the Criminal Justice Act 2003 (repeal of sections 35 and 40 of the Crime (Sentences) Act 1997), section 85(7B) of the Criminal Justice and Immigration Act 2008 applies as if after paragraph (aa), as treated as inserted by sub-paragraph (7) above, there were inserted—

“(ab) the power under section 35 of the Crime (Sentences) Act 1997 to make a community service order or a curfew order;

(ac) the power under section 40 of that Act to order a person to be disqualified for holding or obtaining a driving licence;”.

(9) In relation to any time before the coming into force of section 6(1) of the Criminal Justice and Immigration Act 2008 (abolition of certain youth orders) as respects the abolition of attendance centre orders, section 85(7B) of that Act applies as if after paragraph (ac), as treated as inserted by sub-paragraph (8) above, there were inserted—

“(ad) the power under section 60 of the Powers of Criminal Courts (Sentencing) Act 2000 to order a person to attend an attendance centre;”.

6.—(1) Section 86 (modification of Magistrates' Courts Act 1980) is amended as follows. U.K.

(2) After subsection (2) insert—

“(3) Where a transfer of fine order is made under section 90 of the Magistrates' Courts Act 1980 as applied by section 85(6) of this Act—

(a) subsections (6A) to (7) of section 88 of this Act apply in relation to the powers conferred by Article 96 of the Magistrates' Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)) (transfer of fines to Northern Ireland) as a result of the order as they apply in relation to the powers conferred on a magistrates' court by virtue of section 88(6) of this Act, and

(b) for this purpose—

(i) references in those subsections to the financial penalty are to be treated as references to the financial penalty to which the order relates, and

(ii) references in those subsections to the certificate are to be treated as references to the certificate by virtue of which the order is made.”.

(3) In the heading, at the end insert “ etc ”.

7.  In section 87 (requests from other member States: Northern Ireland) M12 , in subsection (1)(a), for sub-paragraphs (i) and (ii) substitute— U.K.

“(i) a decision, or a certified copy of a decision, requiring payment of a financial penalty, and

(ii) a certificate requesting enforcement under the Framework Decision on financial penalties, and”.

Marginal Citations

M12 Section 87 was amended by S.I. 2010/976.

8.—(1) Section 88 (procedure on receipt of certificate by clerk of petty sessions) M13 is amended as follows. U.K.

(2) In subsection (1), for paragraphs (a) and (b) substitute—

“(a) a decision, or a certified copy of a decision, requiring payment of a financial penalty,

(b) a certificate requesting enforcement under the Framework Decision on financial penalties, and”.

(3) After subsection (4) insert—

“(4A) If the magistrates' court is of the view that one or more of the grounds for refusal mentioned in paragraphs A1, 2A and 6 of Schedule 19 may apply, the designated officer for the magistrates' court or the Department of Justice must, before the magistrates' court takes a decision under subsection (3)—

(a) consult the competent authority or central authority concerned, and

(b) request the authority to supply without delay any further information required.”.

(4) After subsection (6) insert—

“(6A) But any power of a magistrates' court to impose a relevant alternative sanction in connection with a default in paying the financial penalty—

(a) may be exercised only if its exercise is authorised by the certificate, and

(b) is subject to any provision of the certificate specifying the maximum level of sanction that may be imposed.

(6B) “Any power of a magistrates' court to impose a relevant alternative sanction” means any of the following powers conferred on a magistrates' court by virtue of subsection (6)—

(a) the power under Article 92(1)(b) or (c) of the Magistrates' Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 12)) to issue a warrant committing a person to prison;

(b) the power under Article 37 of the Criminal Justice (Children) (Northern Ireland) Order 1998 (S.I. 1998/1504 (N.I. 9) to make an attendance centre order;

(c) the power under Article 48 of the Criminal Justice (Children) (Northern Ireland) Order 1998 to commit a person aged 16 to 18 to custody in a young offenders' institution.”.

(5) After subsection (6B) (as inserted by sub-paragraph (4) above) insert—

“(6C) If the person required to pay the financial penalty to which the certificate relates provides evidence that all or part of the penalty has been paid in any State, the designated officer for the magistrates' court or the Department of Justice must—

(a) consult the competent authority or central authority concerned, and

(b) request the authority to supply without delay any further information required.”.

(6) For subsection (7) substitute—

“(7) If—

(a) the certificate requesting enforcement under the Framework Decision on financial penalties states that part of the financial penalty has been paid,

(b) the Department of Justice is informed, in accordance with Article 15(3) of that Decision, that all or part of the financial penalty has been paid, or

(c) the magistrates' court is satisfied, having regard to evidence provided as mentioned in subsection (6C) and following consultation under that subsection, that all or part of the financial penalty has been paid in any State,

the references in subsections (6) and (6A) to the financial penalty are to be read as references to so much of the penalty as remains unpaid (and, accordingly, if none of the penalty remains unpaid, subsection (6) ceases to have effect in relation to the penalty).”.

Marginal Citations

M13 Section 88 was amended by S.I. 2010/976.

9.—(1) Section 89 (modification of Magistrates' Courts (Northern Ireland) Order 1981) M14 is amended as follows. U.K.

(2) After subsection (5) insert—

“(6) Where a transfer of fine order is made under Article 95 of the Magistrates' Courts (Northern Ireland) Order 1981 as applied by section 88(6) of this Act—

(a) subsections (7A) to (8) of section 85 of this Act apply in relation to the powers conferred by section 91 of the Magistrates' Courts Act 1980 (transfer of fines from Northern Ireland) as a result of the order as they apply in relation to the powers conferred on a magistrates' court by virtue of section 85(6) of this Act, and

(b) for this purpose—

(i) references in those subsections to the financial penalty are to be treated as references to the financial penalty to which the order relates, and

(ii) references in those subsections to the certificate are to be treated as references to the certificate by virtue of which the order is made.”.

(3) In the heading, at the end insert “ etc ”.

Marginal Citations

M14 Section 89(5) was amended by S.I. 2010/976.

10.  In section 90 (transfer of certificates to central authority for Scotland) M15 , in subsection (1)(a), for sub-paragraphs (i) and (ii) substitute— U.K.

“(i) a decision, or a certified copy of a decision, requiring payment of a financial penalty, and

(ii) a certificate requesting enforcement under the Framework Decision on financial penalties, but”.

Marginal Citations

M15 Section 90 was amended by S.I. 2010/976.

11.—(1) Section 90A (transfer of certificates by Department of Justice to Lord Chancellor and vice versa) M16 is amended as follows. U.K.

(2) In subsection (1)(a), for sub-paragraphs (i) and (ii) substitute—

“(i) a decision, or a certified copy of a decision, requiring payment of a financial penalty, and

(ii) a certificate requesting enforcement under the Framework Decision on financial penalties, or”.

(3) In subsection (3)(a), for sub-paragraphs (i) and (ii) substitute—

“(i) a decision, or a certified copy of a decision, requiring payment of a financial penalty, and

(ii) a certificate requesting enforcement under the Framework Decision on financial penalties, or”.

Marginal Citations

M16 Section 90A was inserted by S.I. 2010/976.

12.—(1) Section 91 (recognition of financial penalties: general) M17 is amended as follows. U.K.

(2) In subsection (2), after “85(3)” insert “, (4A)” and after “ 88(3) ” insert “ , (4A) ”.

(3) In subsection (4), omit “81(4), 83(4)”.

Marginal Citations

M17 Section 91 was amended by S.I. 2010/976.

13.  In section 92 (interpretation of sections 80 to 91 etc) M18 , in the definition of “decision” in subsection (2), for “in sections 85(4) and 88(4))” substitute “ where the context requires otherwise) ”. U.K.

Marginal Citations

M18 Section 92 was amended by S.I. 2010/976.

14.  In section 147 (orders, rules and regulations) M19 , in subsection (5)(d), omit “81(4) or”. U.K.

Marginal Citations

M19 Section 147 was amended by S.I. 2010/976.

15.  In section 152 (extent)— U.K.

(a) in subsection (3)(e), for “and (7)” substitute “ to (7B) ”, and

(b) in subsection (4)(b), for “to 89” substitute “ , 88 and 89(1) to (5) ”.

16.—(1) Schedule 19 (grounds for refusal to enforce financial penalties) M20 is amended as follows. U.K.

(2) Before paragraph 1 insert—

“A1.   The certificate is incomplete or obviously does not correspond to the decision.”.

(3) After paragraph 2 insert—

“2A.   Enforcement of the financial penalty is statute-barred under the law of the relevant part of the United Kingdom and the decision was made in respect of conduct that, under the law of that part of the United Kingdom, falls within its jurisdiction.”.

(4) In paragraph 3, omit sub-paragraph (2).

(5) After paragraph 3 insert—

“3A.   The decision was made in respect of conduct—

(a) that occurred in the relevant part of the United Kingdom, and

(b) does not constitute an offence under the law of that part of the United Kingdom.”.

(6) In paragraph 4, omit sub-paragraph (2).

(7) After paragraph 5 insert—

“5A.   It appears that the decision was in fact made for the purpose of punishing the liable person on account of the liable person's race, ethnic origin, religion, nationality, language, gender, sexual orientation or political opinions.”.

(8) For paragraph 6 substitute—

“6.— (1) The certificate indicates that the proceedings in which the decision was made were conducted in writing but does not confirm that the liable person was informed of—

(a) the right to contest the proceedings, and

(b) the time limits that applied to the exercise of that right.

(2) The certificate indicates that the proceedings in which the decision was made provided for a hearing to take place and that the liable person did not attend but does not contain the statement described in—

(a) Article 7(2)(i)(i) (liable person summoned in person or by other means actually notified of scheduled date and place of hearing and informed that decision may be made in his or her absence),

(b) Article 7(2)(i)(ii) (liable person's defence conducted at hearing by authorised legal representative),

(c) Article 7(2)(i)(iii) (liable person indicated intention not to contest decision or did not exercise right to further hearing or appeal within time limit), or

(d) Article 7(2)(j) (liable person expressly waived right to attend and indicated intention not to contest proceedings).

(3) In this paragraph references to Articles are to Articles of the Framework Decision on financial penalties.”.

(9) In paragraph 47, in sub-paragraph (1), after paragraph (b) insert—

“(c) “relevant part of the United Kingdom” means—

(i) England and Wales, in the application of this Schedule to England and Wales, and

(ii) Northern Ireland, in the application of this Schedule to Northern Ireland.”

Marginal Citations

M20 Schedule 19 was amended by S.I. 2010/976.

Regulation 27

SCHEDULE 4 U.K. UK competent authorities

PART 1 U.K.

The Association of Chief Police Officers

The Chief Officer of a Police force for a Police Area in England and Wales

The Chief Constable of the Police Service of Northern Ireland

The Chief Constable of the Police Service of Scotland

F8 ...

Textual Amendments

F8 Words in Sch. 4 omitted (3.12.2014) by virtue of The Criminal Justice and Data Protection (Protocol No. 36) (Amendment) Regulations 2014 (S.I. 2014/3191), regs. 1(b), 2(12)(a)

The Crown Agent

The Director-General of the Northern Ireland Prison Service

The Director of Public Prosecutions

[F9 The Director of Public Prosecutions for Northern Ireland]

Textual Amendments

F9 Words in Sch. 4 substituted (3.12.2014) by The Criminal Justice and Data Protection (Protocol No. 36) (Amendment) Regulations 2014 (S.I. 2014/3191), regs. 1(b), 2(12)(b)

The Financial Conduct Authority

F10 ...

Textual Amendments

F10 Words in Sch. 4 omitted (3.12.2014) by virtue of The Criminal Justice and Data Protection (Protocol No. 36) (Amendment) Regulations 2014 (S.I. 2014/3191), regs. 1(b), 2(12)(c)

The Health and Safety Executive

Her Majesty's Revenue and Customs

F10 ...

Textual Amendments

F10 Words in Sch. 4 omitted (3.12.2014) by virtue of The Criminal Justice and Data Protection (Protocol No. 36) (Amendment) Regulations 2014 (S.I. 2014/3191), regs. 1(b), 2(12)(c)

The Information Commissioner

The Lord Advocate

F10 ...

Textual Amendments

F10 Words in Sch. 4 omitted (3.12.2014) by virtue of The Criminal Justice and Data Protection (Protocol No. 36) (Amendment) Regulations 2014 (S.I. 2014/3191), regs. 1(b), 2(12)(c)

The Ministry of Defence Police Service

F10 ...

Textual Amendments

F10 Words in Sch. 4 omitted (3.12.2014) by virtue of The Criminal Justice and Data Protection (Protocol No. 36) (Amendment) Regulations 2014 (S.I. 2014/3191), regs. 1(b), 2(12)(c)

The National Crime Agency

The Northern Ireland Department of Justice

The Port of Dover Police

A Procurator Fiscal

The Scottish Court Service

The Scottish Information Commissioner

The Scottish Ministers

The Scottish Police Authority

[F11 The Secretary of State for Business, Energy and Industrial Strategy]

Textual Amendments

F11 Words in Sch. 4 Pt. 1 inserted (9.11.2016) by The Secretaries of State for Business, Energy and Industrial Strategy, for International Trade and for Exiting the European Union and the Transfer of Functions (Education and Skills) Order 2016 (S.I. 2016/992), art. 1(2), Sch. para. 52(a) (with art. 13)

The Secretary of State forF12 ... Communities and Local Government

Textual Amendments

F12 Words in Sch. 4 omitted (3.12.2014) by virtue of The Criminal Justice and Data Protection (Protocol No. 36) (Amendment) Regulations 2014 (S.I. 2014/3191), regs. 1(b), 2(12)(d)

[F13 The Secretary of State for Defence]

Textual Amendments

F13 Words in Sch. 4 inserted (3.12.2014) by The Criminal Justice and Data Protection (Protocol No. 36) (Amendment) Regulations 2014 (S.I. 2014/3191), regs. 1(b), 2(12)(e)(i)

F14 ...

Textual Amendments

F14 Words in Sch. 4 Pt. 1 omitted (9.11.2016) by virtue of The Secretaries of State for Business, Energy and Industrial Strategy, for International Trade and for Exiting the European Union and the Transfer of Functions (Education and Skills) Order 2016 (S.I. 2016/992), art. 1(2), Sch. para. 52(b) (with art. 13)

The Secretary of State forF12 ... Environment, Food and Rural Affairs

Textual Amendments

F12 Words in Sch. 4 omitted (3.12.2014) by virtue of The Criminal Justice and Data Protection (Protocol No. 36) (Amendment) Regulations 2014 (S.I. 2014/3191), regs. 1(b), 2(12)(d)

[F15 The Secretary of State for Foreign and Commonwealth Affairs]

Textual Amendments

F15 Words in Sch. 4 inserted (3.12.2014) by The Criminal Justice and Data Protection (Protocol No. 36) (Amendment) Regulations 2014 (S.I. 2014/3191), regs. 1(b), 2(12)(e)(ii)

The Secretary of State forF12 ... Health [F16 and Social Care]

Textual Amendments

F12 Words in Sch. 4 omitted (3.12.2014) by virtue of The Criminal Justice and Data Protection (Protocol No. 36) (Amendment) Regulations 2014 (S.I. 2014/3191), regs. 1(b), 2(12)(d)

F16 Words in Sch. 4 Pt. 1 inserted (11.4.2018) by The Secretaries of State for Health and Social Care and for Housing, Communities and Local Government and Transfer of Functions (Commonhold Land) Order 2018 (S.I. 2018/378), art. 1(2), Sch. para. 21(s) (with art. 14)

[F17 The Secretary of State for the Home Department]

Textual Amendments

F17 Words in Sch. 4 inserted (3.12.2014) by The Criminal Justice and Data Protection (Protocol No. 36) (Amendment) Regulations 2014 (S.I. 2014/3191), regs. 1(b), 2(12)(e)(iii)

[F17 The Secretary of State for Justice]

Textual Amendments

F17 Words in Sch. 4 inserted (3.12.2014) by The Criminal Justice and Data Protection (Protocol No. 36) (Amendment) Regulations 2014 (S.I. 2014/3191), regs. 1(b), 2(12)(e)(iii)

The Secretary of State forF12 ... Transport

Textual Amendments

F12 Words in Sch. 4 omitted (3.12.2014) by virtue of The Criminal Justice and Data Protection (Protocol No. 36) (Amendment) Regulations 2014 (S.I. 2014/3191), regs. 1(b), 2(12)(d)

The Secretary of State forF12 ... Work and Pensions

Textual Amendments

F12 Words in Sch. 4 omitted (3.12.2014) by virtue of The Criminal Justice and Data Protection (Protocol No. 36) (Amendment) Regulations 2014 (S.I. 2014/3191), regs. 1(b), 2(12)(d)

The Serious Fraud Office

PART 2 U.K.

An agency or other body established by a legal instrument adopted under Title VI of the Treaty on European Union (as it had effect before 1st December 2009) or Chapter 1, 4 or 5 of Title V of Part Three of the Treaty on the Functioning of the European Union that is in the UK.

Regulation 51

SCHEDULE 5 U.K. Functions of the Commissioner under the Act: modifications

Column 1	Column 2
this Act (the Data Protection Act 1998)	Part 4 of these Regulations
the data protection principles, or any of them	the requirements of Part 4 of these Regulations
data controller	UK competent authority
section 7 of the Act (right of access to personal data)	regulation 44 of these Regulations (right of access)
section 4(4) of the Act (duty to comply with the data protection principles)	the provision made by Part 4 of these Regulations
section 54A of and paragraph 12 of Schedule 9 to the Act	section 54A of the Act

Regulations 85 and 104

F18 SCHEDULE 6 E+W+N.I. Grounds for refusal to monitor supervision measures

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F18 Sch. 6 omitted (31.12.2020) by virtue of The Criminal Justice (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/780), regs. 1(1), 16(3) (with regs. 16A, 16B) (as amended by S.I. 2020/1408, regs. 1, 48); 2020 c. 1, Sch. 5 para. 1(1)

Explanatory Note

(This note is not part of the Regulations)

These Regulations give effect to Commission Decision 2014/858/EU (OJ No. L 345, 1.12.2014, p. 6) and Council Decision 2014/857/EU (OJ No. L 345, 1.12.2014, p. 1) (together “the Protocol 36 Decisions”), made under Article 10(5) of Protocol (No. 36) on transitional provisions (“Protocol 36”) to the Treaty on European Union, the Treaty on the Functioning of the European Union (“TEU” and “TFEU” respectively) and the Treaty establishing the European Atomic Energy Community.

Article 10(4), first sub-paragraph, of Protocol 36 gave the United Kingdom the power to notify the Council that it did not accept, with respect to acts of the Union in the field of police cooperation and judicial cooperation in criminal matters which had been adopted before the entry into force of the Treaty of Lisbon (“the relevant acts”), the powers of the Commission and of the Court of Justice as referred to in Article 10(1) of Protocol 36. By letter to the President of the Council of 24th July 2013, the United Kingdom made use of this power, with the consequence that the relevant acts ceased to apply to the United Kingdom on 1st December 2014.

Article 10(5) of Protocol 36 allows the United Kingdom to notify the Council of its wish to re-participate in the relevant acts. By letter to the President of the Council, the United Kingdom made use of this power under Article 10(5) of Protocol 36 in relation to some of the relevant acts. For those relevant acts which are part of the Schengen acquis, the process for re-participation is set out in Protocol (No. 19) on the Schengen aquis integrated into the framework of the European Union. For all other relevant acts, the process for re-participation is set out in Protocol (No. 21) on the position of the United Kingdom and Ireland in respect of the area of Freedom, Security and Justice and in Article 331(1) TFEU.

Under these processes, the Protocol 36 Decisions were adopted and the United Kingdom's re-participation in some of the relevant acts has been confirmed.

Pursuant to the Protocol 36 Decisions, the United Kingdom must transpose a number of provisions in the relevant acts which it is re-participating in. These Regulations make such transposing provision in relation to Council Framework Decision 2002/465/JHA of 13th June 2002 on joint investigation teams (OJ L 162, 20.6.2002, p.1) (“JITs”), Council Framework Decision 2005/214/JHA of 24th February 2005 on the application of the principle of mutual recognition to financial penalties (OJ L 76, 22.3.2005, p.16) (“MRFP”), Council Framework Decision 2006/783/JHA of 6th October 2006 on the application of the principle of mutual recognition to confiscation orders (OJ L 328, 24.11.2006, p.59) (“confiscation orders Framework Decision”), Council Framework Decision 2006/960/JHA of 18th December 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union (OJ L 386, 29.12.2006, p.89) (“the Swedish Initiative”), Council Framework Decision 2008/909/JHA of 27th November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (OJ L 327, 5.12.2008, p.27) (“Prisoner Transfer Framework Decision”), Council Framework Decision 2008/977/JHA of 27th November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters (OJ L 350, 30.12.2008, p.60) (“DPFD”), Council Framework Decision 2009/315/JHA of 26th February 2009 on the organisation and content of the exchange of information extracted from the criminal record between Member States (OJ L 93, 7.4.2009, p.23), Council Decision 2009/316/JHA of 6th April 2009 on the establishment of the European Criminal Records Information System (ECRIS) in application of Article 11 of Framework Decision 2009/315/JHA (OJ L 93, 7.4.2009, p.33) (together “ECRIS”), and Council Framework Decision 2009/829/JHA of 23rd October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention (OJ L 294, 11.11.2009, p.20) (“ESO”).

Pursuant to the operation of Article 10(2) and (4) of Protocol 36, these Regulations also make transposing provision in relation to Council Framework Decision 2003/577/JHA of 22nd July 2003 on the execution in the European Union of orders freezing property or evidence (OJ L 196, 2.8.2003, p.45) (“freezing orders Framework Decision”).

Part 2 of, and Schedules 1 and 2 to, these Regulations make provision in relation to the freezing and confiscation of criminal assets, including the instrumentalities of crime (instrumentalities are assets used for criminal conduct). Part 2 (and Schedules 1 and 2) transposes the freezing orders Framework Decision (to the extent that the Framework Decision has not already been transposed by the Crime (International Co-operation) Act 2003) and the confiscation orders Framework Decision, including that measure as amended by Council Framework Decision 2009/299/JHA of 26th February 2009 amending, inter alia, the confiscation orders Framework Decision, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial (“Trials in absentia”).

The Proceeds of Crime Act 2002 makes provision for the freezing and confiscation of criminal property (Part 2 in relation to England and Wales, Part 3 as respects Scotland and Part 4 in relation to Northern Ireland) by means of restraint orders and confiscation orders. Chapters 2 to 4 of Part 2 (and Schedules 1 and 2) make for England and Wales, Scotland and Northern Ireland, respectively, provision to enable the restraint and confiscation orders made by UK court's against property in other member States, to be enforced by the authorities in those states. These Regulations also make provision to allow our domestic courts to recognise and enforce restraint and confiscation orders made against property in the UK, or persons normally resident in the UK, made by the authorities in other member States. Chapter 5 makes provision in relation to various communication requirements set out in the Framework Decisions, and for saved orders made under predecessor legislation to the Proceeds of Crime Act 2002 to be enforced by the authorities in other member States.

Part 3 of, and Schedule 3 to, these Regulations completes the transposition of the MRFP, including the provisions of MRFP as amended by Trials in absentia. MRFP was largely transposed in the Criminal Justice and Immigration Act 2008. Paragraphs 2 and 3 of Schedule 3 make amendments as regards the issuing of a certificate in England and Wales and Northern Ireland requesting enforcement of a financial penalty in another member State. Paragraphs 5 to 8 make amendments as regards the enforcement of a financial penalty in England and Wales and Northern Ireland which has been transferred under MRFP, including provision that any alternative sanction may only be applied in so far as it is authorised by the transferring Member State. Paragraph 9 makes amendments as regards the enforcement of a financial penalty in England and Wales which has been transferred under MRFP and transferred from Northern Ireland to England and Wales. Paragraph 16 makes amendments as regards the grounds on which a court in England and Wales and Northern Ireland must refuse to enforce a financial penalty transferred under MRFP. Paragraphs 4, 5(2), 7, 8(2) and 11 to 15 make amendments consequential on the amendments in Schedule 3.

Part 4 of these Regulations transposes the DPFD. In relation to the DPFD, these Regulations establish a legal framework which applies to competent authorities in EEA States when transmitting or making available personal data to competent authorities in other EEA States for the prevention, investigation, detection or prosecution of criminal penalties. In implementing the DPFD this Part applies instead of the Data Protection Act 1998, except as provided for by this Part.

In implementing the DPFD Part 4 provides, amongst other things, for principles that govern the processing of personal data (with extra safeguards where the data is especially sensitive); a power for competent authorities to undertake automated processing; rules that permit the sharing of data with non-EEA States; procedures for monitoring the length of time for which personal data is held; a right for a individual to ask for inaccurate data to be rectified, erased or blocked; and a right for an individual to seek limited information about processing done in relation to them.

Part 5 of these Regulations transposes the Swedish Initiative, and one provision for JITs on information exchange and use of data. This Part imposes obligations on competent authorities in the United Kingdom to supply information or intelligence when requested by competent authorities of other States in accordance with the Framework Decision. In addition, this Part enables competent authorities in the United Kingdom to request information and intelligence from competent authorities in other States in accordance with the Framework Decision.

Part 6 of these Regulations transposes ECRIS which sets out a framework for the computerised exchange of information on convictions in the European Union. Part 6 implements the obligations in ECRIS firstly by designating the Chief Constable of Hampshire Constabulary as a “central authority”, which is the body responsible for the tasks relating to the exchange of information on convictions for the whole of the UK. Part 6 also sets out obligations to store information on convictions and procedures to be followed when replying to requests for information from other member States.

Part 7 of these Regulations (Chapter 2 for England and Wales, Chapter 3 for Northern Ireland) transposes the ESO which sets out a framework for the mutual recognition of decisions on supervision measures (bail conditions) in the European Union. Chapter 2 makes provision enabling: (a) certain domestic courts to make a request to a competent authority in another member State to monitor the supervision measures in relation to a person granted bail under the Bail Act 1976 (the Bail Act is modified so that conditions of bail can include those that can only be complied with in the relevant member State); and (b) a magistrates' court to recognise a decision on supervision measures imposed on a person by a competent authority in another member State, and to take steps to secure the monitoring of those measures.

Chapter 2 (and Schedule 6) also makes provision for the applicable supervision measures, the procedural requirements, the grounds for refusal, the effect of recognition of a decision on supervision measures, the duties and powers of the courts in relation to the supervision measures, arrest and detention for breach (suspected or anticipated) of a supervision measure in certain circumstances, and the exchange of information. Chapter 3 largely mirrors the provisions in Chapter 2, but with reference to the relevant legislative provisions in Northern Ireland.

Part 8 provides for the extension to Northern Ireland of speciality and transit provisions in the Repatriation of the Prisoners Act 1984 in respect of prisoner transfer arrangements and ensures that the term “international arrangements” in that Act is capable of applying to the Prisoner Transfer Framework Decision.

An impact assessment in respect of the Government's anticipated exercise of its power under Article 10(5) of Protocol 36, of the anticipated Protocol 36 Decisions, and the relevant acts covered by these Regulations was laid before Parliament in July 2014 (Cm 8897), and can be found at https://www.gov.uk/government/publications/decision-pursuant-to-article-105-of-protocol-36-to-the-treaty-on-the-functioning-of-the-european-union.