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The Proceeds of Crime Act 2002 (Administrative Forfeiture Notices) (England and Wales and Northern Ireland) Regulations 2017

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Statutory Instruments

2017 No. 1223

Proceeds Of Crime, England And Wales

Proceeds Of Crime, Northern Ireland

The Proceeds of Crime Act 2002 (Administrative Forfeiture Notices) (England and Wales and Northern Ireland) Regulations 2017

Made

6th December 2017

Laid before Parliament

11th December 2017

Coming into force

31st January 2018

The Secretary of State makes the following Regulations in exercise of the powers conferred by sections 297A(3), 303Z10(1) and 459(2)(a) of the Proceeds of Crime Act 2002(1).

PART 1Introduction

Citation, commencement, extent and interpretation

1.—(1) These Regulations may be cited as the Proceeds of Crime Act 2002 (Administrative Forfeiture Notices) (England and Wales and Northern Ireland) Regulations 2017, and come into force on 31st January 2018.

(2) The extent of these Regulations is as follows—

(a)Part 1 extends to England and Wales and Northern Ireland;

(b)Parts 2 and 3 extend to England and Wales;

(c)Part 4 extends to Northern Ireland.

(3) In these Regulations—

“the Act” means the Proceeds of Crime Act 2002;

“child” means a person under 18 years;

“electronic communication” has the meaning given by section 15(1) of the Electronic Communications Act 2000(2);

“protected person” means—

(a)

in England and Wales, a person who lacks capacity within the meaning of the Mental Capacity Act 2005(3) in relation to an account forfeiture notice;

(b)

in Northern Ireland, means a person who is 16 years or over who lacks capacity to understand the nature of an account forfeiture notice because of an impairment of, or a disturbance in the functioning of, the mind or brain;

(c)

in Scotland, an adult who is incapable, within the meaning of the Adults with Incapacity (Scotland) Act 2000(4), of understanding the nature of an account forfeiture notice.

PART 2Account Forfeiture Notices – Forfeiture of Money Held in Bank and Building Society Accounts

Giving of an account forfeiture notice

2.—(1) Subject to paragraph (2), an account forfeiture notice must be given by a senior officer to—

(a)any person to whom notice of an order made under section 303Z3(2) of the Act has been given, and

(b)any person who has been identified as being affected by such an order but who has not been given notice of the order.

(2) Where—

(a)there is no person who falls within paragraph (1), or

(b)it is not possible to give a notice in accordance with regulation 3(1) to any such person,

the account forfeiture notice must be given by way of publication in accordance with regulation 3(2).

(3) Where an account forfeiture notice is to be given to a person outside the United Kingdom—

(a)nothing in these Regulations authorises or requires any person to do anything which is contrary to the law of the country where the account forfeiture notice is to be given, and

(b)the duty for the account forfeiture notice to be given by way of publication under paragraph (2)(b) does not apply.

(4) Regulation 6 makes further provision for cases where an individual to whom an account forfeiture notice is to be given is a child or protected person.

Manner in which an account forfeiture notice must be given

3.—(1) An account forfeiture notice which is given to a person must be given—

(a)by post in accordance with regulation 4, or

(b)by means of electronic communication in accordance with regulation 5.

(2) An account forfeiture notice which is required to be given by way of publication must be published—

(a)in the London Gazette, if the senior officer believes any affected person may be in England or Wales;

(b)in the Belfast Gazette, if the senior officer believes any affected person may be in Northern Ireland;

(c)in the Edinburgh Gazette, if senior officer believes any affected person may be in Scotland.

Giving an account forfeiture notice by post

4.—(1) In order to give an account forfeiture notice to a person by post, it must be sent by posting it to an address which has been given by that person for the purpose of receipt of an account forfeiture notice under these Regulations.

(2) If no such address has been given, the account forfeiture notice must be sent to an address which is shown in the following table (or where it is possible to post the notice to more than one of the addresses in the table, to any such address).

Person to whom an account forfeiture notice is to be givenAddress
(1)

2000 c. 12. “Limited liability partnership” is defined in section 1(2) of that Act.

IndividualLast known residential address
Individual in their business capacityLast known residential address or principal or last known place of business
Individual in their capacity as a partner in a partnershipLast known residential address or principal or last known place of business of the partnership
Limited liability partnership (within the meaning of the Limited Liability Partnerships Act 2000)(1)Principal office of the partnership or any place of business of the partnership
Corporation (other than a company)Principal office of the corporation or any place where the corporation carries on its activities
CompanyPrincipal office of the company or any place of business of the company

(3) The account forfeiture notice is to be treated as having been given at the time at which the notice would be delivered in the ordinary course of post.

Giving an account forfeiture notice by means of electronic communication

5.—(1) An account forfeiture notice may be given by means of fax, email or other means of electronic communication where the intended recipient has previously indicated in writing—

(a)that they are willing to accept the giving of an account forfeiture notice by that means of electronic communication, and

(b)the fax number, email address or other electronic identification to which the account forfeiture notice must be sent.

(2) Where a senior officer intends to give an account forfeiture notice by means of electronic communication (other than by fax), the senior officer must first ask the intended recipient whether there are any limitations to the intended recipient’s agreement to accept service by such means (for example, the format in which documents are to be sent and the maximum size of attachments that may be received).

(3) Giving an account forfeiture notice by means of electronic communication is effected by sending or transmitting the notice in accordance with the written indication given by the intended recipient under paragraph (1), having complied with any reasonable limitations specified by the intended recipient in response to a request under paragraph (2).

(4) The account forfeiture notice is to be treated as having been given on the day on which it is sent or transmitted if the electronic communication containing it is sent or transmitted at or before 4.30pm.

(5) If the electronic communication is sent or transmitted after 4.30pm, the notice is to be treated as having been given the following day.

Giving an account forfeiture notice to a child or a protected person

6.—(1) Where the intended recipient of an account forfeiture notice is known to be a child who is not also a protected person, the account forfeiture notice must be given to the child and to—

(a)one of the child’s parents or guardians, or

(b)if there is no parent or guardian, an adult with whom the child resides or in whose care the child is.

(2) Where the intended recipient of an account forfeiture notice is known to be a protected person, the account forfeiture notice must be given to the protected person and—

(a)where the protected person is resident in England and Wales, to one of the following persons—

(i)the attorney under a registered enduring power of attorney that relates to the protected person;

(ii)the donee of a lasting power of attorney that relates to the protected person;

(iii)the deputy appointed in relation to the protected person by the Court of Protection;

(b)where the protected person is resident in Northern Ireland, to one of the following persons—

(i)the attorney under a registered enduring power of attorney that relates to the protected person;

(ii)the controller appointed in relation to the protected person by the Office of Care and Protection;

(c)where the protected person is resident in Scotland, to one of the following persons—

(i)the continuing attorney under a continuing power of attorney that relates to the protected person;

(ii)the welfare attorney under a welfare power of attorney that relates to the protected person;

(iii)the person authorised under an intervention order in respect of the protected person;

(iv)the person authorised under a guardianship order in respect of the protected person;

(v)the person authorised under a withdrawal certificate in respect of the funds of the protected person.

(3) If there is no person falling within a description in paragraph (2)(a), (b) or (c), as applicable, the account forfeiture notice must be given to an adult with whom the protected person resides or in whose care the protected person is (as well as to the protected person).

(4) Any reference in these Regulations to a person to whom an account forfeiture notice is to be given includes the person to be given the account forfeiture notice in addition to a child or protected person under paragraphs (1) to (3).

PART 3Amendment of the Administrative Forfeiture of Cash (Forfeiture Notices) (England and Wales) Regulations 2015

7.—(1) The Administrative Forfeiture of Cash (Forfeiture Notices) (England and Wales) Regulations 2015(5) are amended as follows.

(2) In regulation 3 (giving of a forfeiture notice) after paragraph (2) insert—

(3) Where a forfeiture notice is to be given outside the United Kingdom—

(a)nothing in these Regulations authorises or requires any person to do anything which is contrary to the law of the country where the account forfeiture notice is to be given, and

(b)the duty for the account forfeiture notice to be given by way of publication under paragraph (2)(b) does not apply..

(3) In regulation 4 (manner in which a forfeiture notice must be given)—

(a)in paragraph (1), for “Subject to paragraph (3), a forfeiture notice” substitute “A forfeiture notice”;

(b)for paragraph (2) substitute—

(2) An account forfeiture notice which is required to be given by way of publication must be published—

(a)in the London Gazette, if the senior officer believes any affected person may be in England or Wales;

(b)in the Belfast Gazette, if the senior officer believes any affected person may be in Northern Ireland;

(c)in the Edinburgh Gazette, if senior officer believes any affected person may be in Scotland..

(c)omit paragraph (3).

(4) In regulation 7—

(a)in paragraph (1), after “given to” insert “the child and”;

(b)for paragraph (2) substitute—

(2) Where the intended recipient of a forfeiture notice is known to be a protected person, the forfeiture notice must be given to the protected person and—

(a)where the protected person is resident in England and Wales, to one of the following persons—

(i)the attorney under a registered enduring power of attorney that relates to the protected person;

(ii)the donee of a lasting power of attorney that relates to the protected person;

(iii)the deputy appointed in relation to the protected person by the Court of Protection;

(b)where the protected person is resident in Northern Ireland, to one of the following persons—

(i)the attorney under a registered enduring power of attorney that relates to the protected person;

(ii)the controller appointed in relation to the protected person by the Office of Care and Protection;

(c)where the protected person is resident in Scotland, to one of the following persons—

(i)the continuing attorney under a continuing power of attorney that relates to the protected person;

(ii)the welfare attorney under a welfare power of attorney that relates to the protected person;

(iii)the person authorised under an intervention order in respect of the protected person;

(iv)the person authorised under a guardianship order in respect of the protected person;

(v)the person authorised under a withdrawal certificate in respect of the funds of the protected person.;

(c)in paragraph (5), for the definition of “protected person” substitute—

“protected person” means—

(a)in England and Wales, a person who lacks capacity within the meaning of the Mental Capacity Act 2005(6) in relation to a forfeiture notice;

(b)in Northern Ireland, means a person who is 16 years or over who lacks capacity to understand the nature of a forfeiture notice because of an impairment of, or a disturbance in the functioning of, the mind or brain;

(c)in Scotland, an adult who is incapable, within the meaning of the Adults with Incapacity (Scotland) Act 2000(7), of understanding the nature of a forfeiture notice..

(5) Omit regulation 8 (giving a forfeiture notice to a person outside the United Kingdom).

PART 4Amendment of the Administrative Forfeiture of Cash (Forfeiture Notices) (Northern Ireland) Regulations 2016

8.—(1) The Administrative Forfeiture of Cash (Forfeiture Notices) (Northern Ireland) Regulations 2016(8) are amended as follows.

(2) In regulation 3 (giving of a forfeiture notice) after paragraph (2) insert—

(3) Where a forfeiture notice is to be given outside the United Kingdom—

(a)nothing in these Regulations authorises or requires any person to do anything which is contrary to the law of the country where the account forfeiture notice is to be given, and

(b)the duty for the account forfeiture notice to be given by way of publication under paragraph (2)(b) does not apply..

(3) In regulation 4 (manner in which a forfeiture notice must be given), for paragraph (2) substitute—

(2) An account forfeiture notice which is required to be given by way of publication must be published—

(a)in the London Gazette, if the senior officer believes any affected person may be in England or Wales;

(b)in the Belfast Gazette, if the senior officer believes any affected person may be in Northern Ireland;

(c)in the Edinburgh Gazette, if senior officer believes any affected person may be in Scotland..

(4) In regulation 7—

(a)in paragraph (1), after “given to” insert “the child and”;

(b)for paragraph (2) substitute—

(2) Where the intended recipient of a forfeiture notice is known to be a protected person, the forfeiture notice must be given to the protected person and—

(a)where the protected person is resident in England and Wales, to one of the following persons—

(i)the attorney under a registered enduring power of attorney that relates to the protected person;

(ii)the donee of a lasting power of attorney that relates to the protected person;

(iii)the deputy appointed in relation to the protected person by the Court of Protection;

(b)where the protected person is resident in Northern Ireland, to one of the following persons—

(i)the attorney under a registered enduring power of attorney that relates to the protected person;

(ii)the controller appointed in relation to the protected person by the Office of Care and Protection;

(c)where the protected person is resident in Scotland, to one of the following persons—

(i)the continuing attorney under a continuing power of attorney that relates to the protected person;

(ii)the welfare attorney under a welfare power of attorney that relates to the protected person;

(iii)the person authorised under an intervention order in respect of the protected person;

(iv)the person authorised under a guardianship order in respect of the protected person;

(v)the person authorised under a withdrawal certificate in respect of the funds of the protected person.;

(c)in paragraph (5), for the definition of “protected person” substitute—

“protected person” means—

(a)in England and Wales, a person who lacks capacity within the meaning of the Mental Capacity Act 2005(9) in relation to a forfeiture notice;

(b)in Northern Ireland, means a person who is 16 years or over who lacks capacity to understand the nature of a forfeiture notice because of an impairment of, or a disturbance in the functioning of, the mind or brain;

(c)in Scotland, an adult who is incapable, within the meaning of the Adults with Incapacity (Scotland) Act 2000(10), of understanding the nature of a forfeiture notice..

Ben Wallace

Minister of State

Home Office

6th December 2017

EXPLANATORY NOTE

(This note is not part of these Regulations)

Part 1 of these Regulations sets out how a senior officer must give an account forfeiture notice under section 303Z9 of the Proceeds of Crime Act 2002 (c. 29) (“the Act”). An account forfeiture notice relates to money in a bank account or a building society account in respect of which there is a reasonable suspicion that it is the proceeds of crime, or is intended to be used in unlawful conduct, and in respect of which an account freezing order under section 303Z3 of the Act has been made. An account forfeiture notice informs the recipient of the senior officer’s intention to forfeit the money without a hearing before a magistrates’ court (“administrative forfeiture”). The provisions for administrative forfeiture do not apply in Scotland, and are not being commenced in Northern Ireland at this time.

Regulation 2 provides that an account forfeiture notice must be given to persons known to be affected by an order freezing the money in the account. If there are no persons falling within the description, or it would not be possible to give such a person a notice in accordance with the requirements of the Regulations, then the notice must be given instead by publication (unless the affected persons are outside the United Kingdom).

Regulation 3 sets out the manner in which an account forfeiture notice must be given. A notice being given to such a person may be sent by post or by means of an electronic communication. A notice given by publication must be published in the London Gazette, the Belfast Gazette and/or the Edinburgh Gazette, as applicable.

Regulation 4 sets out the requirements for giving an account forfeiture notice by post, and makes provision for when the notice is to be treated as having been given. Regulation 5 sets out the requirements for giving an account forfeiture notice by means of electronic communication, and makes provision for when the notice is to be treated as having been given.

Regulation 6 concerns the giving of an account forfeiture notice to a person known to be a child who is not a person lacking sufficient mental capacity (a “protected person”), or to a protected person.

Parts 3 and 4 of these Regulations amend the existing regulations (for England and Wales and Northern Ireland respectively) which govern the way in which an administrative forfeiture notice is to be given under the cash forfeiture provisions in Chapter 3 of the Act. A cash forfeiture notice may be given by a senior officer in respect of detained cash if the cash is reasonably suspected to derive from, or be intended for use in, unlawful conduct. A cash forfeiture notice informs the recipient of the senior officer’s intention to forfeit the cash without a hearing before a magistrates’ court. The amendments made by Parts 3 and 4 of these Regulations ensure that the same provisions for giving a notice to someone outside the United Kingdom will apply for forfeiture notices relating to cash as apply for forfeiture notices relating to money in bank or building society accounts. In addition, the amendments ensure that cash forfeiture notices can be given by publication, or given to a child or a protected person, in any UK jurisdiction.

An impact assessment has not been produced for this instrument as no impact is foreseen on the private, voluntary or public sectors.

(1)

2002 c. 29. Section 297A was inserted by section 65(1) of the Policing and Crime Act 2009 (c. 26); amended by paragraphs 14 and 28 of Part 1 of Schedule 21 to the Crime and Courts Act 2013 (c. 22); and amended by section 34(1) and (7) and paragraphs 1 and 19 of Schedule 1 to the Criminal Finances Act 2017 (c.22). Sections 303Z1 to 303Z19 were inserted by section 16 of the Criminal Finances Act 2017.

(2)

2000 c. 7. Section 15(1) was amended by paragraph 158 of Schedule 17 to the Communications Act 2003 (c. 21).

(5)

S.I. 2015/857. Relevant amendments made by S.I. 2015/1854.

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