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Proceeds of Crime Act 2002

Changes over time for: Proceeds of Crime Act 2002 (without Schedules)

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Proceeds of Crime Act 2002 is up to date with all changes known to be in force on or before 23 June 2025. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. Help about Changes to Legislation

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Part 1U.K.[F1Introductory]

Textual Amendments

F21 The Agency and its DirectorU.K.

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Textual Amendments

F32 Director’s functions: generalU.K.

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Textual Amendments

[F42AContribution to the reduction of crimeU.K.

(1)A relevant authority must exercise its functions under this Act in the way which it considers is best calculated to contribute to the reduction of crime.

(2)In this section “a relevant authority” means—

(a)[F5the National Crime Agency],

(b)the Director of Public Prosecutions,

(c)the Director of Public Prosecutions for Northern Ireland,

F6(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F7...

(e)the Director of the Serious Fraud Office.

[F8(f)Her Majesty's Revenue and Customs, or

(g)the Financial Conduct Authority.]

(3)In considering under subsection (1) the way which is best calculated to contribute to the reduction of crime a relevant authority must have regard to any guidance given to it by—

(a)in the case of [F9the National Crime Agency], the Secretary of State,

(b)in the case of the Director of Public Prosecutions F10... or the Director of the Serious Fraud Office, the Attorney General, F11...

(c)in the case of the Director of Public Prosecutions for Northern Ireland, the Advocate General for Northern Ireland [F12, and

(d)in the case of Her Majesty's Revenue and Customs or the Financial Conduct Authority, the Treasury.]

(4)The guidance must indicate that the reduction of crime is in general best secured by means of criminal investigations and criminal proceedings.

(5)The reference in this section to the Advocate General for Northern Ireland is to be read, before the coming into force of section 27(1) of the Justice (Northern Ireland) Act 2002 (c. 26), as a reference to the Attorney General for Northern Ireland.

Textual Amendments

F5Words in s. 2A(2)(a) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 109; S.I. 2013/1682, art. 3(v)

F7Word in s. 2A(2) omitted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by virtue of Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 18(2)(a); S.I. 2018/78, reg. 5(1)(e); S.I. 2021/724, reg. 4(e)

F8S. 2A(2)(f)(g) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 18(2)(b); S.I. 2018/78, reg. 5(1)(e); S.I. 2021/724, reg. 4(e)

F9Words in s. 2A(3)(a) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 109; S.I. 2013/1682, art. 3(v)

F11Word in s. 2A(3)(b) omitted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by virtue of Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 18(3)(a); S.I. 2018/78, reg. 5(1)(e); S.I. 2021/724, reg. 4(e)

F12S. 2A(3)(d) and word inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 18(3)(b); S.I. 2018/78, reg. 5(1)(e); S.I. 2021/724, reg. 4(e)

2B[F13The National Crime Agency and its officers]U.K.

F14(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)Anything which [F15the National Crime Agency] is authorised or required to do under this Act (whether directly or through its staff) may be done by a person providing services under arrangements made by [F16that Agency] if the person is authorised by [F16that Agency] (whether generally or specifically) for that purpose.

F17(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

2CProsecuting authoritiesU.K.

(1)Anything which the Director of Public Prosecutions is authorised or required to do under, or in relation to, Part 5 or 8 of this Act may be done by a member of his staff if the member of staff is authorised by the Director (generally or specifically) for that purpose.

(2)Anything which F18... the Director of the Serious Fraud Office is authorised or required to do under, or in relation to, Part [F192, 4,] 5, [F207] or 8 of this Act may be done by a member of his staff if the member of staff is authorised by the Director F21... (generally or specifically) for that purpose.

(3)Anything which a relevant Director or a member of his staff is authorised or required to do under, or in relation to, Part [F222, 4,] 5 or 8 of this Act may be done by a person providing services under arrangements made by the relevant Director if the person is authorised by the relevant Director (whether generally or specifically) for that purpose.

[F23(3A)Subsection (3) does not apply to the functions of the Director of Public Prosecutions for Northern Ireland F24... under section 302A] [F25, 303X [F26, 303Z19, 303Z53 or 303Z65]].

(4)In this section “relevant Director” means—

(a)the Director of Public Prosecutions,

(b)the Director of Public Prosecutions for Northern Ireland,

F27(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)the Director of the Serious Fraud Office.]

Textual Amendments

F19Words in s. 2C(2) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. for specified purposes, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 2(2); S.I. 2018/78, reg. 3(z); S.I. 2021/724, reg. 3(a)

F20Word in s. 2C(2) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 19(2); S.I. 2018/78, reg. 5(1)(d); S.I. 2021/724, reg. 4(e)

F22Words in s. 2C(3) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. for specified purposes, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 2(3); S.I. 2018/78, reg. 3(z); S.I. 2021/724, reg. 3(a)

F25Words in s. 2C(3A) inserted (27.4.2017 for specified purposes, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 19(3); S.I. 2021/724, reg. 4(e)

F26Words in s. 2C(3A) substituted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 2; S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

3 Accreditation and trainingU.K.

(1)The [F28National Crime Agency] must [F29provide] a system for the accreditation of financial investigators.

(2)The system of accreditation must include provision for—

(a)the monitoring of the performance of accredited financial investigators, and

(b)the withdrawal of accreditation from any person who contravenes or fails to comply with any condition subject to which he was accredited [F30, and

(c)securing that decisions under that system which concern—

(i)the grant or withdrawal of accreditations, or

(ii)the monitoring of the performance of accredited financial investigators,

are taken without regard to their effect on operations by the National Crime Agency or any other person].

(3)A person may be accredited—

(a)in relation to this Act;

(b)in relation to particular provisions of this Act.

(4)But the accreditation may be limited to specified purposes.

(5)A reference in this Act to an accredited financial investigator is to be construed accordingly.

F31(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)The [F32National Crime Agency] must make provision for the training of persons in—

(a)financial investigation, and

(b)the operation of this Act.

F33(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F344 Co-operationU.K.

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

Textual Amendments

F355 Advice and assistanceU.K.

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

Textual Amendments

Part 2E+WConfiscation: England and Wales

Modifications etc. (not altering text)

C6Pt. 2: power to modify conferred (20.3.2015) by Crime and Courts Act 2013 (c. 22), ss. 47, 61(2); S.I. 2015/813, art. 2(b)

C8Pt. 2 applied (12.2.2019 for specified purposes, 13.8.2020 in so far as not already in force) by Counter-Terrorism and Border Security Act 2019 (c. 3), s. 27(1)(g), Sch. 3 para. 33(5) (with s. 25(9)); S.I. 2020/792, reg. 2(g)

Confiscation ordersE+W

6 Making of orderE+W

(1)The Crown Court must proceed under this section if the following two conditions are satisfied.

(2)The first condition is that a defendant falls within any of the following paragraphs—

(a)he is convicted of an offence or offences in proceedings before the Crown Court;

(b)he is committed to the Crown Court for sentence in respect of an offence or offences under [F36section 3, 4 or 6] [F37[F36section 3, 3A, 3B, 3C, 4, 4A or 6] of the Sentencing Act] [F37any provision of sections 14 to 20 of the Sentencing Code];

(c)he is committed to the Crown Court in respect of an offence or offences under section 70 below (committal with a view to a confiscation order being considered).

(3)The second condition is that—

(a)the prosecutor F38... asks the court to proceed under this section, or

(b)the court believes it is appropriate for it to do so.

(4)The court must proceed as follows—

(a)it must decide whether the defendant has a criminal lifestyle;

(b)if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct;

(c)if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct.

(5)If the court decides under subsection (4)(b) or (c) that the defendant has benefited from the conduct referred to it must—

(a)decide the recoverable amount, and

(b)make an order (a confiscation order) requiring him to pay that amount.

[F39Paragraph (b) applies only if, or to the extent that, it would not be disproportionate to require the defendant to pay the recoverable amount.]

(6)But the court must treat the duty in subsection (5) as a power if it believes that any victim of the conduct has at any time started or intends to start proceedings against the defendant in respect of loss, injury or damage sustained in connection with the conduct.

[F40(6A)The court must also treat the duty in subsection (5) as a power if—

(a)an order has been made, or it believes an order may be made, against the defendant under section 4 (criminal unlawful profit orders) of the Prevention of Social Housing Fraud Act 2013 in respect of profit made by the defendant in connection with the conduct, or

(b)it believes that a person has at any time started or intends to start proceedings against the defendant under section 5 (civil unlawful profit orders) of that Act in respect of such profit.]

(7)The court must decide any question arising under subsection (4) or (5) on a balance of probabilities.

(8)The first condition is not satisfied if the defendant absconds (but section 27 may apply).

(9)References in this Part to the offence (or offences) concerned are to the offence (or offences) mentioned in subsection (2).

Textual Amendments

F36Words in s. 6(2)(b) substituted (18.6.2012 for specified purposes, 5.11.2012 for specified purposes, 28.5.2013 for specified purposes) by Criminal Justice Act 2003 (c. 44), s. 336(3)(4), Sch. 3 para. 75(2); S.I. 2012/1320, art. 4(1)(c)(2)(3) (with art. 5) (see S.I. 2012/2574, art. 4(2) and S.I. 2013/1103, art. 4); S.I. 2012/2574, art. 2(2)(3)(c), Sch. (with arts. 3, 4) (as amended (4.11.2012) by S.I. 2012/2761, art. 2) (with S.I. 2013/1103, art. 4); S.I. 2013/1103, art. 2(1)(c)(2)(3) (with arts. 3, 4)

Commencement Information

I1S. 6 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch. (with arts. 3(1), 7, 10-13) (as amended (6.3.2003) by S.I. 2003/531, art. 3)

7 Recoverable amountE+W

(1)The recoverable amount for the purposes of section 6 is an amount equal to the defendant’s benefit from the conduct concerned.

(2)But if the defendant shows that the available amount is less than that benefit the recoverable amount is—

(a)the available amount, or

(b)a nominal amount, if the available amount is nil.

(3)But if section 6(6) [F41or 6(6A)] applies the recoverable amount is such amount as—

(a)the court believes is just, but

(b)does not exceed the amount found under subsection (1) or (2) (as the case may be).

(4)In calculating the defendant’s benefit from the conduct concerned for the purposes of subsection (1), [F42the following must be ignored—

(a)any property in respect of which a recovery order is in force under section 266,

(b)any property which has been forfeited in pursuance of a forfeiture notice under section 297A [F43or an account forfeiture notice under section 303Z9], F44...

(c)any property in respect of which a forfeiture order is in force under section 298(2)][F45, 303O(3), 303R(3) [F46, 303Z14(4), 303Z41(4), 303Z45(3) or 303Z60(4)]] [F47, and

(d)any property which is the forfeitable property in relation to an order under section 303Q(1) [F48or 303Z44(1)].]

(5)If the court decides the available amount, it must include in the confiscation order a statement of its findings as to the matters relevant for deciding that amount.

Textual Amendments

F41Words in s. 7(3) inserted (15.10.2013 for E., 5.11.2013 for W.) by Prevention of Social Housing Fraud Act 2013 (c. 3), s. 12, Sch. para. 13; S.I. 2013/2622, art. 2; S.I. 2013/2861, art. 2

F43Words in s. 7(4)(b) inserted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 20(a); S.I. 2018/78, reg. 5(3)(b)(i)(ii)

F44Word in s. 7(4)(b) omitted (27.4.2017 for specified purposes, 16.4.2018 in so far as not already in force) by virtue of Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 20(b); S.I. 2018/78, reg. 5(3)(c)

F45Words in s. 7(4)(c) inserted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 20(c); S.I. 2018/78, reg. 5(3)(b)(i)(ii)

F46Words in s. 7(4)(c) substituted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 3(2)(a); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

F47S. 7(4)(d) and word inserted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 20(d); S.I. 2018/78, reg. 5(3)(b)(i)(ii)

F48Words in s. 7(4)(d) inserted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 3(2)(b); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

Commencement Information

I2S. 7 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

8 Defendant’s benefitE+W

(1)If the court is proceeding under section 6 this section applies for the purpose of—

(a)deciding whether the defendant has benefited from conduct, and

(b)deciding his benefit from the conduct.

(2)The court must—

(a)take account of conduct occurring up to the time it makes its decision;

(b)take account of property obtained up to that time.

(3)Subsection (4) applies if—

(a)the conduct concerned is general criminal conduct,

(b)a confiscation order mentioned in subsection (5) has at an earlier time been made against the defendant, and

(c)his benefit for the purposes of that order was benefit from his general criminal conduct.

(4)His benefit found at the time the last confiscation order mentioned in subsection (3)(c) was made against him must be taken for the purposes of this section to be his benefit from his general criminal conduct at that time.

(5)If the conduct concerned is general criminal conduct the court must deduct the aggregate of the following amounts—

(a)the amount ordered to be paid under each confiscation order previously made against the defendant;

(b)the amount ordered to be paid under each confiscation order previously made against him under any of the provisions listed in subsection (7).

(6)But subsection (5) does not apply to an amount which has been taken into account for the purposes of a deduction under that subsection on any earlier occasion.

(7)These are the provisions—

(a)the Drug Trafficking Offences Act 1986 (c. 32);

(b)Part 1 of the Criminal Justice (Scotland) Act 1987 (c. 41);

(c)Part 6 of the Criminal Justice Act 1988 (c. 33);

(d)the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));

(e)Part 1 of the Drug Trafficking Act 1994 (c. 37);

(f)Part 1 of the Proceeds of Crime (Scotland) Act 1995 (c. 43);

(g)the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9));

(h)Part 3 or 4 of this Act.

(8)The reference to general criminal conduct in the case of a confiscation order made under any of the provisions listed in subsection (7) is a reference to conduct in respect of which a court is required or entitled to make one or more assumptions for the purpose of assessing a person’s benefit from the conduct.

Commencement Information

I3S. 8 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

9 Available amountE+W

(1)For the purposes of deciding the recoverable amount, the available amount is the aggregate of—

(a)the total of the values (at the time the confiscation order is made) of all the free property then held by the defendant minus the total amount payable in pursuance of obligations which then have priority, and

(b)the total of the values (at that time) of all tainted gifts.

(2)An obligation has priority if it is an obligation of the defendant—

(a)to pay an amount due in respect of a fine or other order of a court which was imposed or made on conviction of an offence and at any time before the time the confiscation order is made, or

(b)to pay a sum which would be included among the preferential debts if the defendant’s bankruptcy had commenced on the date of the confiscation order or his winding up had been ordered on that date.

(3)“Preferential debts” has the meaning given by section 386 of the Insolvency Act 1986 (c. 45).

Commencement Information

I4S. 9 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

10 Assumptions to be made in case of criminal lifestyleE+W

(1)If the court decides under section 6 that the defendant has a criminal lifestyle it must make the following four assumptions for the purpose of—

(a)deciding whether he has benefited from his general criminal conduct, and

(b)deciding his benefit from the conduct.

(2)The first assumption is that any property transferred to the defendant at any time after the relevant day was obtained by him—

(a)as a result of his general criminal conduct, and

(b)at the earliest time he appears to have held it.

(3)The second assumption is that any property held by the defendant at any time after the date of conviction was obtained by him—

(a)as a result of his general criminal conduct, and

(b)at the earliest time he appears to have held it.

(4)The third assumption is that any expenditure incurred by the defendant at any time after the relevant day was met from property obtained by him as a result of his general criminal conduct.

(5)The fourth assumption is that, for the purpose of valuing any property obtained (or assumed to have been obtained) by the defendant, he obtained it free of any other interests in it.

(6)But the court must not make a required assumption in relation to particular property or expenditure if—

(a)the assumption is shown to be incorrect, or

(b)there would be a serious risk of injustice if the assumption were made.

(7)If the court does not make one or more of the required assumptions it must state its reasons.

(8)The relevant day is the first day of the period of six years ending with—

(a)the day when proceedings for the offence concerned were started against the defendant, or

(b)if there are two or more offences and proceedings for them were started on different days, the earliest of those days.

(9)But if a confiscation order mentioned in section 8(3)(c) has been made against the defendant at any time during the period mentioned in subsection (8)—

(a)the relevant day is the day when the defendant’s benefit was calculated for the purposes of the last such confiscation order;

(b)the second assumption does not apply to any property which was held by him on or before the relevant day.

(10)The date of conviction is—

(a)the date on which the defendant was convicted of the offence concerned, or

(b)if there are two or more offences and the convictions were on different dates, the date of the latest.

Commencement Information

I5S. 10 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

[F4910ADetermination of extent of defendant's interest in propertyE+W

(1)Where it appears to a court making a confiscation order that—

(a)there is property held by the defendant that is likely to be realised or otherwise used to satisfy the order, and

(b)a person other than the defendant holds, or may hold, an interest in the property,

the court may, if it thinks it appropriate to do so, determine the extent (at the time the confiscation order is made) of the defendant's interest in the property.

(2)The court must not exercise the power conferred by subsection (1) unless it gives to anyone who the court thinks is or may be a person holding an interest in the property a reasonable opportunity to make representations to it.

(3)A determination under this section is conclusive in relation to any question as to the extent of the defendant's interest in the property that arises in connection with—

(a)the realisation [F50or destruction] of the property, or the transfer of an interest in the property, with a view to satisfying the confiscation order, or

(b)any action or proceedings taken for the purposes of any such realisation or transfer.

(4)Subsection (3)—

(a)is subject to section 51(8B), and

(b)does not apply in relation to a question that arises in proceedings before the Court of Appeal or the Supreme Court.

(5)In this Part, the “extent” of the defendant's interest in property means the proportion that the value of the defendant's interest in it bears to the value of the property itself.]

Textual Amendments

F50Words in s. 10A(3)(a) inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 9; S.I. 2024/269, reg. 4(a)

[F5111 Time for paymentE+W

(1)Unless subsection (2) applies, the full amount ordered to be paid under a confiscation order must be paid on the day on which the order is made.

(2)If the court making the confiscation order is satisfied that the defendant is unable to pay the full amount on that day, it may make an order requiring whatever cannot be paid on that day to be paid—

(a)in a specified period, or

(b)in specified periods each of which relates to a specified amount.

(3)A specified period—

(a)must start with the day on which the confiscation order is made, and

(b)must not exceed three months.

(4)If—

(a)within any specified period the defendant applies to the Crown Court for that period to be extended, and

(b)the court is satisfied that, despite having made all reasonable efforts, the defendant is unable to pay the amount to which the specified period relates within that period,

the court may make an order extending the period (for all or any part or parts of the amount in question).

(5)An extended period—

(a)must start with the day on which the confiscation order is made, and

(b)must not exceed six months.

(6)An order under subsection (4)—

(a)may be made after the end of the specified period to which it relates, but

(b)must not be made after the end of the period of six months starting with the day on which the confiscation order is made.

(7)Periods specified or extended under this section must be such that, where the court believes that a defendant will by a particular day be able—

(a)to pay the amount remaining to be paid, or

(b)to pay an amount towards what remains to be paid,

that amount is required to be paid no later than that day.

(8)The court must not make an order under subsection (2) or (4) unless it gives the prosecutor an opportunity to make representations.]

Textual Amendments

Commencement Information

I6S. 11 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

12 Interest on unpaid sumsE+W

(1)If [F52any amount required to be paid] by a person under a confiscation order is not paid when it is required to be paid, he [F53must pay interest on that amount] for the period for which it remains unpaid.

(2)The rate of interest is the same rate as that for the time being specified in section 17 of the Judgments Act 1838 (c. 110) (interest on civil judgment debts).

[F54(3)If—

(a)an application has been made under section 11(4) for a specified period to be extended,

(b)the application has not been determined by the court, and

(c)the period of six months starting with the day on which the confiscation order was made has not ended,

the amount on which interest is payable under this section does not include the amount to which the specified period relates.]

(4)In applying this Part the amount of the interest must be treated as part of the amount to be paid under the confiscation order.

Textual Amendments

Modifications etc. (not altering text)

Commencement Information

I7S. 12 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

13 Effect of order on court’s other powersE+W

(1)If the court makes a confiscation order it must proceed as mentioned in subsections (2) and (4) in respect of the offence or offences concerned.

(2)The court must take account of the confiscation order before—

(a)it imposes a fine on the defendant, or

(b)it makes an order falling within subsection (3).

(3)These orders fall within this subsection—

(a)an order involving payment by the defendant, other than [F55an order under [F56section 46 of the Sentencing Code] (criminal courts charge) or] [F57a priority order];

(b)an order under section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders);

(c)an order under [F58Chapter 4 of Part 7 of the Sentencing Code] (deprivation orders);

(d)an order under section 23 [F59or 23A] of the Terrorism Act 2000 (c. 11) (forfeiture orders).

[F60(3A)In this section “priority order” means any of the following—

(a)a compensation order under [F61Chapter 2 of Part 7 of the Sentencing Code];

(b)an order requiring payment of a surcharge under [F62section 42 of the Sentencing Code];

(c)an unlawful profit order under section 4 of the Prevention of Social Housing Fraud Act 2013.]

[F63(d)a slavery and trafficking reparation order under section 8 of the Modern Slavery Act 2015.]

(4)Subject to subsection (2), the court must leave the confiscation order out of account in deciding the appropriate sentence for the defendant.

[F64(5)Subsection (6) applies if—

(a)the Crown Court makes both a confiscation order and one or more priority orders against the same person in the same proceedings, and

(b)the court believes the person will not have sufficient means to satisfy all those orders in full.]

(6)In such a case the court must direct that so much of the [F65amount payable under the priority order (or orders)] as it specifies is to be paid out of any sums recovered under the confiscation order; and the amount it specifies must be the amount it believes will not be recoverable because of the insufficiency of the person’s means.

Textual Amendments

F57Words in s. 13(3)(a) substituted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 6(2), 88(1); S.I. 2015/820, reg. 3(c)

F63S. 13(3A)(d) inserted by 2015 c. 30 Sch. 5 para. 15 (as substituted) (17.3.2016) by The Modern Slavery Act 2015 (Consequential Amendments) Regulations 2016 (S.I. 2016/244), regs. 1(1), 26

F65Words in s. 13(6) substituted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 6(5), 88(1); S.I. 2015/820, reg. 3(c)

Commencement Information

I8S. 13 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

[F6613AOrders for securing compliance with confiscation orderE+W

(1)This section applies where the court makes a confiscation order.

(2)The court may make such order as it believes is appropriate for the purpose of ensuring that the confiscation order is effective (a “compliance order”).

(3)The court must consider whether to make a compliance order—

(a)on the making of the confiscation order, and

(b)if it does not make a compliance order then, at any later time (while the confiscation order is still in effect) on the application of the prosecutor.

(4)In considering whether to make a compliance order, the court must, in particular, consider whether any restriction or prohibition on the defendant's travel outside the United Kingdom ought to be imposed for the purpose mentioned in subsection (2).

(5)The court may discharge or vary a compliance order on an application made by—

(a)the prosecutor;

(b)any person affected by the order.

Textual Amendments

F66Ss. 13A, 13B inserted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 7, 88(1) (with s. 86(1)); S.I. 2015/820, reg. 3(d)

13BAppeals against orders under section 13AE+W

(1)If on an application under section 13A(3)(b) the Crown Court decides not to make a compliance order, the prosecutor may appeal to the Court of Appeal against the decision.

(2)The following persons may appeal to the Court of Appeal in respect of the Crown Court's decision to make, discharge or vary a compliance order—

(a)the prosecutor;

(b)any person affected by the order.

(3)On an appeal under subsection (1) or (2) the Court of Appeal may—

(a)confirm the decision, or

(b)make such order as it believes is appropriate.

(4)An appeal lies to the Supreme Court against a decision of the Court of Appeal under subsection (3).

(5)An appeal under subsection (4) lies at the instance of any person who was a party to the proceedings before the Court of Appeal.

(6)On an appeal under subsection (4) the Supreme Court may—

(a)confirm the decision of the Court of Appeal, or

(b)make such order as it believes is appropriate.

(7)In this section “compliance order” means an order made under section 13A.]

Textual Amendments

F66Ss. 13A, 13B inserted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 7, 88(1) (with s. 86(1)); S.I. 2015/820, reg. 3(d)

Procedural mattersE+W

14 PostponementE+W

(1)The court may—

(a)proceed under section 6 before it sentences the defendant for the offence (or any of the offences) concerned, or

(b)postpone proceedings under section 6 for a specified period.

(2)A period of postponement may be extended.

(3)A period of postponement (including one as extended) must not end after the permitted period ends.

(4)But subsection (3) does not apply if there are exceptional circumstances.

(5)The permitted period is the period of two years starting with the date of conviction.

(6)But if—

(a)the defendant appeals against his conviction for the offence (or any of the offences) concerned, and

(b)the period of three months (starting with the day when the appeal is determined or otherwise disposed of) ends after the period found under subsection (5),

the permitted period is that period of three months.

(7)A postponement or extension may be made—

(a)on application by the defendant;

(b)on application by the prosecutor F67...;

(c)by the court of its own motion.

(8)If—

(a)proceedings are postponed for a period, and

(b)an application to extend the period is made before it ends,

the application may be granted even after the period ends.

(9)The date of conviction is—

(a)the date on which the defendant was convicted of the offence concerned, or

(b)if there are two or more offences and the convictions were on different dates, the date of the latest.

(10)References to appealing include references to applying under section 111 of the Magistrates’ Courts Act 1980 (c. 43) (statement of case).

(11)A confiscation order must not be quashed only on the ground that there was a defect or omission in the procedure connected with the application for or the granting of a postponement.

(12)But subsection (11) does not apply if before it made the confiscation order the court—

(a)imposed a fine on the defendant;

(b)made an order falling within section 13(3);

(c)made an order under [F68Chapter 2 of Part 7 of the Sentencing Code] (compensation orders) [F69;

[F70(ca)made an order under [F71section 42 of the Sentencing Code] (orders requiring payment of surcharge);]

(d)made an order under section 4 of the Prevention of Social Housing Fraud Act 2013 (unlawful profit orders)].

Textual Amendments

F69S. 14(12)(d) inserted (15.10.2013 for E., 5.11.2013 for W.) by Prevention of Social Housing Fraud Act 2013 (c. 3), s. 12, Sch. para. 15; S.I. 2013/2622, art. 2; S.I. 2013/2861, art. 2

Commencement Information

I9S. 14 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

15 Effect of postponementE+W

(1)If the court postpones proceedings under section 6 it may proceed to sentence the defendant for the offence (or any of the offences) concerned.

(2)In sentencing the defendant for the offence (or any of the offences) concerned in the postponement period the court must not—

(a)impose a fine on him,

(b)make an order falling within section 13(3), F72...

(c)make an order for the payment of compensation under [F73Chapter 2 of Part 7 of the Sentencing Code] [F74, F75...

[F76(ca)make an order for the payment of a surcharge under [F77section 42 of the Sentencing Code], or]

(d)make an unlawful profit order under section 4 of the Prevention of Social Housing Fraud Act 2013].

(3)If the court sentences the defendant for the offence (or any of the offences) concerned in the postponement period, after that period ends it may vary the sentence by—

(a)imposing a fine on him,

(b)making an order falling within section 13(3), F78...

(c)making an order for the payment of compensation under [F79Chapter 2 of Part 7 of the Sentencing Code ] [F80, F81...

[F82(ca)making an order for the payment of a surcharge under [F83section 42 of the Sentencing Code], or]

(d)making an unlawful profit order under section 4 of the Prevention of Social Housing Fraud Act 2013].

(4)But the court may proceed under subsection (3) only within the period of 28 days which starts with the last day of the postponement period.

(5)For the purposes of—

(a)section 18(2) of the Criminal Appeal Act 1968 (c. 19) (time limit for notice of appeal or of application for leave to appeal), and

(b)paragraph 1 of Schedule 3 to the Criminal Justice Act 1988 (c. 33) (time limit for notice of application for leave to refer a case under section 36 of that Act),

the sentence must be regarded as imposed or made on the day on which it is varied under subsection (3).

(6)If the court proceeds to sentence the defendant under subsection (1), section 6 has effect as if the defendant’s particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

(7)The postponement period is the period for which proceedings under section 6 are postponed.

Textual Amendments

F72Word in s. 15(2)(b) omitted (15.10.2013 for E., 5.11.2013 for W.) by virtue of Prevention of Social Housing Fraud Act 2013 (c. 3), s. 12, Sch. para. 16(2)(a); S.I. 2013/2622, art. 2; S.I. 2013/2861, art. 2

F74S. 15(2)(d) and word inserted (15.10.2013 for E., 5.11.2013 for W.) by Prevention of Social Housing Fraud Act 2013 (c. 3), s. 12, Sch. para. 16(2)(b); S.I. 2013/2622, art. 2; S.I. 2013/2861, art. 2

F75Word in s. 15(2)(c) omitted (1.6.2015) by virtue of Serious Crime Act 2015 (c. 9), s. 88(1), Sch. 4 para. 22(2)(a); S.I. 2015/820, reg. 3(q)(iii)

F78Word in s. 15(3)(b) omitted (15.10.2013 for E., 5.11.2013 for W.) by virtue of Prevention of Social Housing Fraud Act 2013 (c. 3), s. 12, Sch. para. 16(3)(a); S.I. 2013/2622, art. 2; S.I. 2013/2861, art. 2

F80S. 15(3)(d) and word inserted (15.10.2013 for E., 5.11.2013 for W.) by Prevention of Social Housing Fraud Act 2013 (c. 3), s. 12, Sch. para. 16(3)(b); S.I. 2013/2622, art. 2; S.I. 2013/2861, art. 2

F81Word in s. 15(3)(c) omitted (1.6.2015) by virtue of Serious Crime Act 2015 (c. 9), s. 88(1), Sch. 4 para. 22(3)(a); S.I. 2015/820, reg. 3(q)(iii)

Commencement Information

I10S. 15 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

16 Statement of informationE+W

(1)If the court is proceeding under section 6 in a case where section 6(3)(a) applies, the prosecutor F84... must give the court a statement of information within the period the court orders.

(2)If the court is proceeding under section 6 in a case where section 6(3)(b) applies and it orders the prosecutor to give it a statement of information, the prosecutor must give it such a statement within the period the court orders.

(3)If the prosecutor F85... believes the defendant has a criminal lifestyle the statement of information is a statement of matters the prosecutor F86...believes are relevant in connection with deciding these issues—

(a)whether the defendant has a criminal lifestyle;

(b)whether he has benefited from his general criminal conduct;

(c)his benefit from the conduct.

(4)A statement under subsection (3) must include information the prosecutor F87... believes is relevant—

(a)in connection with the making by the court of a required assumption under section 10;

(b)for the purpose of enabling the court to decide if the circumstances are such that it must not make such an assumption.

(5)If the prosecutor F88... does not believe the defendant has a criminal lifestyle the statement of information is a statement of matters the prosecutor F89... believes are relevant in connection with deciding these issues—

(a)whether the defendant has benefited from his particular criminal conduct;

(b)his benefit from the conduct.

(6)If the prosecutor F90... gives the court a statement of information—

(a)he may at any time give the court a further statement of information;

(b)he must give the court a further statement of information if it orders him to do so, and he must give it within the period the court orders.

[F91(6A)A statement of information (other than one to which subsection (6B) applies) must include any information known to the prosecutor which the prosecutor believes is or would be relevant for the purpose of enabling the court to decide—

(a)whether to make a determination under section 10A, or

(b)what determination to make (if the court decides to make one).

(6B)If the court has decided to make a determination under section 10A, a further statement of information under subsection (6)(b) must, if the court so orders, include specified information that is relevant to the determination.]

(7)If the court makes an order under this section it may at any time vary it by making another one.

Textual Amendments

F91S. 16(6A)(6B) inserted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 2(1), 88(1); S.I. 2015/820, reg. 3(a)

Commencement Information

I11S. 16 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

17 Defendant’s response to statement of informationE+W

(1)If the prosecutor F92... gives the court a statement of information and a copy is served on the defendant, the court may order the defendant—

(a)to indicate (within the period it orders) the extent to which he accepts each allegation in the statement, and

(b)so far as he does not accept such an allegation, to give particulars of any matters he proposes to rely on.

(2)If the defendant accepts to any extent an allegation in a statement of information the court may treat his acceptance as conclusive of the matters to which it relates for the purpose of deciding the issues referred to in section 16(3) or (5) (as the case may be).

(3)If the defendant fails in any respect to comply with an order under subsection (1) he may be treated for the purposes of subsection (2) as accepting every allegation in the statement of information apart from—

(a)any allegation in respect of which he has complied with the requirement;

(b)any allegation that he has benefited from his general or particular criminal conduct.

(4)For the purposes of this section an allegation may be accepted or particulars may be given in a manner ordered by the court.

(5)If the court makes an order under this section it may at any time vary it by making another one.

(6)No acceptance under this section that the defendant has benefited from conduct is admissible in evidence in proceedings for an offence.

Textual Amendments

Commencement Information

I12S. 17 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

18 Provision of information by defendantE+W

(1)This section applies if—

(a)the court is proceeding under section 6 in a case where section 6(3)(a) applies, or

(b)it is proceeding under section 6 in a case where section 6(3)(b) applies or it is considering whether to proceed.

(2)For the purpose of obtaining information to help it in carrying out its functions [F93 (including functions under section 10A)] the court may at any time order the defendant to give it information specified in the order.

(3)An order under this section may require all or a specified part of the information to be given in a specified manner and before a specified date.

(4)If the defendant fails without reasonable excuse to comply with an order under this section the court may draw such inference as it believes is appropriate.

(5)Subsection (4) does not affect any power of the court to deal with the defendant in respect of a failure to comply with an order under this section.

(6)If the prosecutor F94... accepts to any extent an allegation made by the defendant—

(a)in giving information required by an order under this section, or

(b)in any other statement given to the court in relation to any matter relevant to [F95deciding—

(i)the available amount under section 9, or

(ii)whether to make a determination under section 10A, or what determination to make (if the court decides to make one),]

the court may treat the acceptance as conclusive of the matters to which it relates.

(7)For the purposes of this section an allegation may be accepted in a manner ordered by the court.

(8)If the court makes an order under this section it may at any time vary it by making another one.

(9)No information given under this section which amounts to an admission by the defendant that he has benefited from criminal conduct is admissible in evidence in proceedings for an offence.

Textual Amendments

F93Words in s. 18(2) inserted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 2(2)(a), 88(1); S.I. 2015/820, reg. 3(a)

F95Words in s. 18(6)(b) substituted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 2(2)(b), 88(1); S.I. 2015/820, reg. 3(a)

Commencement Information

I13S. 18 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

[F9618AProvision of information as to defendant's interest in propertyE+W

(1)This section applies if the court—

(a)is considering whether to make a determination under section 10A of the extent of the defendant's interest in any property, or

(b)is deciding what determination to make (if the court has decided to make a determination under that section).

In this section “interested person” means a person (other than the defendant) who the court thinks is or may be a person holding an interest in the property.

(2)For the purpose of obtaining information to help it in carrying out its functions under section 10A the court may at any time order an interested person to give it information specified in the order.

(3)An order under this section may require all or a specified part of the information to be given in a specified manner and before a specified date.

(4)If an interested person fails without reasonable excuse to comply with an order under this section the court may draw such inference as it believes is appropriate.

(5)Subsection (4) does not affect any power of the court to deal with the person in respect of a failure to comply with an order under this section.

(6)If the prosecutor accepts to any extent an allegation made by an interested person—

(a)in giving information required by an order under this section, or

(b)in any other statement given to the court in relation to any matter relevant to a determination under section 10A,

the court may treat the acceptance as conclusive of the matters to which it relates.

(7)For the purposes of this section an allegation may be accepted in a manner ordered by the court.

(8)If the court makes an order under this section it may at any time vary it by making another one.

(9)No information given by a person under this section is admissible in evidence in proceedings against that person for an offence.]

Textual Amendments

ReconsiderationE+W

19 No order made: reconsideration of caseE+W

(1)This section applies if—

(a)the first condition in section 6 is satisfied but no court has proceeded under that section,

(b)there is evidence which was not available to the prosecutor on the relevant date,

(c)before the end of the period of six years starting with the date of conviction the prosecutor F97... applies to the Crown Court to consider the evidence, and

(d)after considering the evidence the court believes it is appropriate for it to proceed under section 6.

(2)If this section applies the court must proceed under section 6, and when it does so subsections (3) to (8) below apply.

(3)If the court has already sentenced the defendant for the offence (or any of the offences) concerned, section 6 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

(4)Section 8(2) does not apply, and the rules applying instead are that the court must—

(a)take account of conduct occurring before the relevant date;

(b)take account of property obtained before that date;

(c)take account of property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

(5)In section 10—

(a)the first and second assumptions do not apply with regard to property first held by the defendant on or after the relevant date;

(b)the third assumption does not apply with regard to expenditure incurred by him on or after that date;

(c)the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

(6)The recoverable amount for the purposes of section 6 is such amount as—

(a)the court believes is just, but

(b)does not exceed the amount found under section 7.

(7)In arriving at the just amount the court must have regard in particular to—

(a)the amount found under section 7;

(b)any fine imposed on the defendant in respect of the offence (or any of the offences) concerned;

(c)any order which falls within section 13(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by the court in deciding what is the free property held by him for the purposes of section 9;

(d)any order which has been made against him in respect of the offence (or any of the offences) concerned under section 130 [F98of the Powers of Criminal Courts (Sentencing) Act 2000 or Chapter 2 of Part 7 of the Sentencing Code] (compensation orders) [F99;

[F100(da)any order which has been made against the defendant in respect of the offence (or any of the offences) concerned under section 161A of the Criminal Justice Act 2003 [F101or section 42 of the Sentencing Code] (orders requiring payment of surcharge);]

(e)any order which has been made against the defendant in respect of the offence (or any of the offences) concerned under section 4 of the Prevention of Social Housing Fraud Act 2013 (unlawful profit orders)].

(8)If an order for the payment of compensation under section 130 [F102of the Powers of Criminal Courts (Sentencing) Act 2000 or Chapter 2 of Part 7 of the Sentencing Code] [F103, a surcharge under section 161A of the Criminal Justice Act 2003] [F104or section 42 of the Sentencing Code] [F105or an unlawful profit order under section 4 of the Prevention of Social Housing Fraud Act 2013] has been made against the defendant in respect of the offence or offences concerned, section 13(5) and (6) above do not apply [F106in relation to it].

(9)The relevant date is—

(a)if the court made a decision not to proceed under section 6, the date of the decision;

(b)if the court did not make such a decision, the date of conviction.

(10)The date of conviction is—

(a)the date on which the defendant was convicted of the offence concerned, or

(b)if there are two or more offences and the convictions were on different dates, the date of the latest.

Textual Amendments

F105Words in s. 19(8) inserted (15.10.2013 for E., 5.11.2013 for W.) by Prevention of Social Housing Fraud Act 2013 (c. 3), s. 12, Sch. para. 17(3); S.I. 2013/2622, art. 2; S.I. 2013/2861, art. 2

Commencement Information

I14S. 19 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

20 No order made: reconsideration of benefitE+W

(1)This section applies if the following two conditions are satisfied.

(2)The first condition is that in proceeding under section 6 the court has decided that—

(a)the defendant has a criminal lifestyle but has not benefited from his general criminal conduct, or

(b)the defendant does not have a criminal lifestyle and has not benefited from his particular criminal conduct.

F107(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)F108... the second condition is that—

(a)there is evidence which was not available to the prosecutor when the court decided that the defendant had not benefited from his general or particular criminal conduct,

(b)before the end of the period of six years starting with the date of conviction the prosecutor F109... applies to the Crown Court to consider the evidence, and

(c)after considering the evidence the court concludes that it would have decided that the defendant had benefited from his general or particular criminal conduct (as the case may be) if the evidence had been available to it.

(5)If this section applies the court—

(a)must make a fresh decision under section 6(4)(b) or (c) whether the defendant has benefited from his general or particular criminal conduct (as the case may be);

(b)may make a confiscation order under that section.

(6)Subsections (7) to (12) below apply if the court proceeds under section 6 in pursuance of this section.

(7)If the court has already sentenced the defendant for the offence (or any of the offences) concerned, section 6 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

(8)Section 8(2) does not apply, and the rules applying instead are that the court must—

(a)take account of conduct occurring before the date of the original decision that the defendant had not benefited from his general or particular criminal conduct;

(b)take account of property obtained before that date;

(c)take account of property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

(9)In section 10—

(a)the first and second assumptions do not apply with regard to property first held by the defendant on or after the date of the original decision that the defendant had not benefited from his general or particular criminal conduct;

(b)the third assumption does not apply with regard to expenditure incurred by him on or after that date;

(c)the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

(10)The recoverable amount for the purposes of section 6 is such amount as—

(a)the court believes is just, but

(b)does not exceed the amount found under section 7.

(11)In arriving at the just amount the court must have regard in particular to—

(a)the amount found under section 7;

(b)any fine imposed on the defendant in respect of the offence (or any of the offences) concerned;

(c)any order which falls within section 13(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by the court in deciding what is the free property held by him for the purposes of section 9;

(d)any order which has been made against him in respect of the offence (or any of the offences) concerned under [F110section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 or Chapter 2 of Part 7 of the Sentencing Code] (compensation orders) [F111;

[F112(da)any order which has been made against the defendant in respect of the offence (or any of the offences) concerned under section 161A of the Criminal Justice Act 2003 [F113or section 42 of that Code] (orders requiring payment of surcharge);]

(e)any order which has been made against the defendant in respect of the offence (or any of the offences) concerned under section 4 of the Prevention of Social Housing Fraud Act 2013 (unlawful profit orders)].

(12)If an order for the payment of compensation under [F114section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 or Chapter 2 of Part 7 of the Sentencing Code] [F115, a surcharge under section 161A of the Criminal Justice Act 2003] [F116or section 42 of the Sentencing Code] [F117or an unlawful profit order under section 4 of the Prevention of Social Housing Fraud Act 2013] has been made against the defendant in respect of the offence or offences concerned, section 13(5) and (6) above do not apply [F118in relation to it].

(13)The date of conviction is the date found by applying section 19(10).

Textual Amendments

F117Words in s. 20(12) inserted (15.10.2013 for E., 5.11.2013 for W.) by Prevention of Social Housing Fraud Act 2013 (c. 3), s. 12, Sch. para. 18(3); S.I. 2013/2622, art. 2; S.I. 2013/2861, art. 2

Commencement Information

I15S. 20 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

21 Order made: reconsideration of benefitE+W

(1)This section applies if—

(a)a court has made a confiscation order,

(b)there is evidence which was not available to the prosecutor F119... at the relevant time,

(c)the prosecutor F120... believes that if the court were to find the amount of the defendant’s benefit in pursuance of this section it would exceed the relevant amount,

(d)before the end of the period of six years starting with the date of conviction the prosecutor F121... applies to the Crown Court to consider the evidence, and

(e)after considering the evidence the court believes it is appropriate for it to proceed under this section.

(2)The court must make a new calculation of the defendant’s benefit from the conduct concerned, and when it does so subsections (3) to (6) below apply.

(3)If a court has already sentenced the defendant for the offence (or any of the offences) concerned section 6 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

(4)Section 8(2) does not apply, and the rules applying instead are that the court must—

(a)take account of conduct occurring up to the time it decided the defendant’s benefit for the purposes of the confiscation order;

(b)take account of property obtained up to that time;

(c)take account of property obtained after that time if it was obtained as a result of or in connection with conduct occurring before that time.

(5)In applying section 8(5) the confiscation order must be ignored.

(6)In section 10—

(a)the first and second assumptions do not apply with regard to property first held by the defendant after the time the court decided his benefit for the purposes of the confiscation order;

(b)the third assumption does not apply with regard to expenditure incurred by him after that time;

(c)the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him after that time.

(7)If the amount found under the new calculation of the defendant’s benefit exceeds the relevant amount the court—

(a)must make a new calculation of the recoverable amount for the purposes of section 6, and

(b)if it exceeds the amount required to be paid under the confiscation order, may vary the order by substituting for the amount required to be paid such amount as it believes is just.

(8)In applying subsection (7)(a) the court must—

(a)take the new calculation of the defendant’s benefit;

(b)apply section 9 as if references to the time the confiscation order is made were to the time of the new calculation of the recoverable amount and as if references to the date of the confiscation order were to the date of that new calculation.

(9)In applying subsection (7)(b) the court must have regard in particular to—

(a)any fine imposed on the defendant for the offence (or any of the offences) concerned;

(b)any order which falls within section 13(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by the court in deciding what is the free property held by him for the purposes of section 9;

(c)any order which has been made against him in respect of the offence (or any of the offences) concerned under [F122section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 or Chapter 2 of Part 7 of the Sentencing Code] (compensation orders) [F123;

[F124(ca)any order which has been made against the defendant in respect of the offence (or any of the offences) concerned under section 161A of the Criminal Justice Act 2003 [F125or section 42 of the Sentencing Code] (orders requiring payment of surcharge);]

(d)any order which has been made against the defendant in respect of the offence (or any of the offences) concerned under section 4 of the Prevention of Social Housing Fraud Act 2013 (unlawful profit orders)].

(10)But in applying subsection (7)(b) the court must not have regard to an order falling within subsection (9)(c) [F126, (ca) ] [F127or (d)] if a court has made a direction under section 13(6).

(11)In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.

(12)The relevant time is—

(a)when the court calculated the defendant’s benefit for the purposes of the confiscation order, if this section has not applied previously;

(b)when the court last calculated the defendant’s benefit in pursuance of this section, if this section has applied previously.

(13)The relevant amount is—

(a)the amount found as the defendant’s benefit for the purposes of the confiscation order, if this section has not applied previously;

(b)the amount last found as the defendant’s benefit in pursuance of this section, if this section has applied previously.

(14)The date of conviction is the date found by applying section 19(10).

Textual Amendments

F127Words in s. 21(10) inserted (15.10.2013 for E., 5.11.2013 for W.) by Prevention of Social Housing Fraud Act 2013 (c. 3), s. 12, Sch. para. 19(3); S.I. 2013/2622, art. 2; S.I. 2013/2861, art. 2

Commencement Information

I16S. 21 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

22 Order made: reconsideration of available amountE+W

(1)This section applies if—

(a)a court has made a confiscation order,

(b)the amount required to be paid was the amount found under section 7(2), and

(c)an applicant falling within subsection (2) applies to the Crown Court to make a new calculation of the available amount.

(2)These applicants fall within this subsection—

(a)the prosecutor;

F128(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)a receiver appointed under section 50 F129....

(3)In a case where this section applies the court must make the new calculation, and in doing so it must apply section 9 as if references to the time the confiscation order is made were to the time of the new calculation and as if references to the date of the confiscation order were to the date of the new calculation.

(4)If the amount found under the new calculation exceeds the relevant amount the court may vary the order by substituting for the amount required to be paid such amount as—

(a)it believes is just, but

(b)does not exceed the amount found as the defendant’s benefit from the conduct concerned.

(5)In deciding what is just the court must have regard in particular to—

(a)any fine imposed on the defendant for the offence (or any of the offences) concerned;

(b)any order which falls within section 13(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by the court in deciding what is the free property held by him for the purposes of section 9;

(c)any order which has been made against him in respect of the offence (or any of the offences) concerned under [F130section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 or Chapter 2 of Part 7 of the Sentencing Code] (compensation orders).

[F131(d)any order which has been made against the defendant in respect of the offence (or any of the offences) concerned under section 161A of the Criminal Justice Act 2003 [F132or section 42 of the Sentencing Code] (orders requiring payment of surcharge).]

(6)But in deciding what is just the court must not have regard to an order falling within subsection (5)(c) [F133 or (d).] if a court has made a direction under section 13(6).

(7)In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.

(8)The relevant amount is—

(a)the amount found as the available amount for the purposes of the confiscation order, if this section has not applied previously;

(b)the amount last found as the available amount in pursuance of this section, if this section has applied previously.

(9)The amount found as the defendant’s benefit from the conduct concerned is—

(a)the amount so found when the confiscation order was made, or

(b)if one or more new calculations of the defendant’s benefit have been made under section 21 the amount found on the occasion of the last such calculation.

Textual Amendments

Commencement Information

I17S. 22 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

23 Inadequacy of available amount: variation of orderE+W

(1)This section applies if—

(a)a court has made a confiscation order, and

(b)the defendant [F134 or the prosecutor] , or a receiver appointed under section 50 F135..., applies to the Crown Court to vary the order under this section.

(2)In such a case the court must calculate the available amount, and in doing so it must apply section 9 as if references to the time the confiscation order is made were to the time of the calculation and as if references to the date of the confiscation order were to the date of the calculation.

(3)If the court finds that the available amount (as so calculated) is inadequate for the payment of any amount remaining to be paid under the confiscation order it may vary the order by substituting for the amount required to be paid such smaller amount as the court believes is just.

(4)If a person has been [F136made] bankrupt or his estate has been sequestrated, or if an order for the winding up of a company has been made, the court must take into account the extent to which realisable property held by that person or that company may be distributed among creditors.

(5)The court may disregard any inadequacy which it believes is attributable (wholly or partly) to anything done by the defendant for the purpose of preserving property held by the recipient of a tainted gift from any risk of realisation under this Part.

(6)In subsection (4) “company” means any company which may be wound up under the Insolvency Act 1986 (c. 45) or the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)).

Textual Amendments

F134Words in s. 23(1)(b) inserted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 8(1), 88(1); S.I. 2015/820, reg. 3(e)

Commencement Information

I18S. 23 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

24 Inadequacy of available amount: discharge of orderE+W

(1)This section applies if—

(a)a court has made a confiscation order,

(b)[F137the designated officer for a magistrates' court] applies to the Crown Court for the discharge of the order, and

(c)the amount remaining to be paid under the order is less than £1,000.

(2)In such a case the court must calculate the available amount, and in doing so it must apply section 9 as if references to the time the confiscation order is made were to the time of the calculation and as if references to the date of the confiscation order were to the date of the calculation.

(3)If the court—

(a)finds that the available amount (as so calculated) is inadequate to meet the amount remaining to be paid, and

(b)is satisfied that the inadequacy is due wholly to a specified reason or a combination of specified reasons,

it may discharge the confiscation order.

(4)The specified reasons are—

(a)in a case where any of the realisable property consists of money in a currency other than sterling, that fluctuations in currency exchange rates have occurred;

(b)any reason specified by the Secretary of State by order.

(5)The Secretary of State may by order vary the amount for the time being specified in subsection (1)(c).

[F138(6)The discharge of a confiscation order under this section does not prevent the making of an application in respect of the order under section 21(1)(d) or 22(1)(c).

(7)Where on such an application the court determines that the order should be varied under section 21(7) or (as the case may be) 22(4), the court may provide that its discharge under this section is revoked.]

Textual Amendments

F137Words in s. 24(1)(b) substituted (1.4.2005) by Courts Act 2003 (c. 39), s. 110(1), Sch. 8 para. 406(a); S.I. 2005/910, art. 3(y)

F138S. 24(6)(7) inserted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 32(2), 58(1)(6) (with s. 32(7)); S.I. 2018/78, reg. 3(p)

Commencement Information

I19S. 24 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

25 Small amount outstanding: discharge of orderE+W

(1)This section applies if—

(a)a court has made a confiscation order,

(b)[F139the designated officer for a magistrates' court] applies to the Crown Court for the discharge of the order, and

(c)the amount remaining to be paid under the order is £50 or less.

(2)In such a case the court may discharge the order.

(3)The Secretary of State may by order vary the amount for the time being specified in subsection (1)(c).

[F140(4)The discharge of a confiscation order under this section does not prevent the making of an application in respect of the order under section 21(1)(d) or 22(1)(c).

(5)Where on such an application the court determines that the order should be varied under section 21(7) or (as the case may be) 22(4), the court may provide that its discharge under this section is revoked.]

Textual Amendments

F139Words in s. 25(1)(b) substituted (1.4.2005) by Courts Act 2003 (c. 39), s. 110(1), Sch. 8 para. 406(b); S.I. 2005/910, art. 3(y)

F140S. 25(4)(5) inserted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 32(3), 58(1)(6) (with s. 32(7)); S.I. 2018/78, reg. 3(p)

Commencement Information

I20S. 25 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

[F14125ARecovery from estate of deceased defendant impractical: discharge of orderE+W

(1)This section applies if—

(a)a court has made a confiscation order,

(b)the defendant dies while the order is not satisfied, and

(c)the designated officer for a magistrates' court applies to the Crown Court for the discharge of the order.

(2)The court may discharge the order if it appears to the court that—

(a)it is not possible to recover anything from the estate of the deceased for the purpose of satisfying the order to any extent, or

(b)it would not be reasonable to make any attempt, or further attempt, to recover anything from the estate of the deceased for that purpose.]

Textual Amendments

26 InformationE+W

(1)This section applies if—

(a)the court proceeds under section 6 in pursuance of section 19 or 20, or

(b)the prosecutor F142... applies under section 21.

(2)In such a case—

(a)the prosecutor F143... must give the court a statement of information within the period the court orders;

(b)section 16 applies accordingly (with appropriate modifications where the prosecutor F144... applies under section 21);

(c)section 17 applies accordingly;

(d)section 18 applies as it applies in the circumstances mentioned in section 18(1).

Textual Amendments

Commencement Information

I21S. 26 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

Defendant abscondsE+W

27 Defendant convicted or committedE+W

(1)This section applies if the following two conditions are satisfied.

[F145(2)The first condition is that a defendant falls within any of the following paragraphs—

(a)he absconds and, either before or after doing so, he is convicted of an offence or offences in proceedings before the Crown Court;

(b)he absconds after being committed to the Crown Court for sentence in respect of an offence or offences under [F146any provision of sections 14 to 20 of the Sentencing Code];

(c)he absconds after being committed to the Crown Court in respect of an offence or offences under section 70 below (committal with a view to a confiscation order being considered).]

(3)The second condition is that—

(a)the prosecutor F147... applies to the Crown Court to proceed under this section, and

(b)the court believes it is appropriate for it to do so.

(4)If this section applies the court must proceed under section 6 in the same way as it must proceed if the two conditions there mentioned are satisfied; but this is subject to subsection (5).

(5)If the court proceeds under section 6 as applied by this section, this Part has effect with these modifications—

(a)any person the court believes is likely to be affected by an order under section 6 is entitled to appear before the court and make representations;

(b)the court must not make an order under section 6 unless the prosecutor F148... has taken reasonable steps to contact the defendant;

(c)section 6(9) applies as if the reference to subsection (2) were to subsection (2) of this section;

(d)sections 10, 16(4), 17 and 18 must be ignored;

(e)sections 19, 20 and 21 must be ignored while the defendant is still an absconder.

[F149(6)Once the defendant ceases to be an absconder—

(a)section 19 has effect as if subsection (1) read—

“(1)This section applies if—

(a)at a time when the first condition in section 27 was satisfied the court did not proceed under section 6,

(b)before the end of the period of six years starting with the day when the defendant ceased to be an absconder, the prosecutor applies to the Crown Court to proceed under section 6, and

(c)the court believes it is appropriate for it to do so.”;

(b)section 20 has effect as if subsection (4) read—

“(4)The second condition is that—

(a)before the end of the period of six years starting with the day when the defendant ceased to be an absconder, the prosecutor applies to the Crown Court to reconsider whether the defendant has benefited from his general or particular criminal conduct (as the case may be), and

(b)the court believes it is appropriate for it to do so.”;

(c)section 21 has effect as if subsection (1) read—

“(1)This section applies if—

(a)a court has made a confiscation order,

(b)the prosecutor believes that if the court were to find the amount of the defendant's benefit in pursuance of this section it would exceed the relevant amount,

(c)before the end of the period of six years starting with the day when the defendant ceased to be an absconder, the prosecutor applies to the Crown Court to proceed under this section, and

(d)the court believes it is appropriate for it to do so.”;

(d)the modifications set out in subsection (5)(a) to (d) of this section do not apply to proceedings that take place by virtue of section 19, 20 or 21 (as applied by this subsection).]

Textual Amendments

F149S. 27(6) substituted for s. 27(6)(7) (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 9(2), 88(1); S.I. 2015/820, reg. 3(f)

Commencement Information

I22S. 27 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch. (with arts. 3(2), 10-13)

28 Defendant neither convicted nor acquittedE+W

(1)This section applies if the following two conditions are satisfied.

(2)The first condition is that—

(a)proceedings for an offence or offences are started against a defendant but are not concluded,

(b)he absconds, and

(c)the period of [F150three months] (starting with the day the court believes he absconded) has ended.

(3)The second condition is that—

(a)the prosecutor F151... applies to the Crown Court to proceed under this section, and

(b)the court believes it is appropriate for it to do so.

(4)If this section applies the court must proceed under section 6 in the same way as it must proceed if the two conditions there mentioned are satisfied; but this is subject to subsection (5).

(5)If the court proceeds under section 6 as applied by this section, this Part has effect with these modifications—

(a)any person the court believes is likely to be affected by an order under section 6 is entitled to appear before the court and make representations;

(b)the court must not make an order under section 6 unless the prosecutor F152... has taken reasonable steps to contact the defendant;

(c)section 6(9) applies as if the reference to subsection (2) were to subsection (2) of this section;

(d)sections 10, 16(4) and 17 to 20 must be ignored;

(e)section 21 must be ignored while the defendant is still an absconder.

[F153(6)Once the defendant has ceased to be an absconder—

(a)section 21 has effect as if subsection (1) read—

“(1)This section applies if—

(a)a court has made a confiscation order,

(b)the prosecutor believes that if the court were to find the amount of the defendant's benefit in pursuance of this section it would exceed the relevant amount,

(c)before the end of the period of six years starting with the day when the defendant ceased to be an absconder, the prosecutor applies to the Crown Court to proceed under this section, and

(d)the court believes it is appropriate for it to do so.”;

(b)the modifications set out in subsection (5)(a) to (d) of this section do not apply to proceedings that take place by virtue of section 21 (as applied by this subsection).]

(7)If—

(a)the court makes an order under section 6 as applied by this section, and

(b)the defendant is later convicted in proceedings before the Crown Court of the offence (or any of the offences) concerned,

section 6 does not apply so far as that conviction is concerned.

Textual Amendments

F150Words in s. 28(2)(c) substituted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 9(3), 88(1); S.I. 2015/820, reg. 3(f)

Commencement Information

I23S. 28 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch. (with arts. 3(2), 10-13)

29 Variation of orderE+W

(1)This section applies if—

(a)the court makes a confiscation order under section 6 as applied by section 28,

(b)the defendant ceases to be an absconder,

(c)he is convicted of an offence (or any of the offences) mentioned in section 28(2)(a),

(d)he believes that the amount required to be paid was too large (taking the circumstances prevailing when the amount was found for the purposes of the order), and

(e)before the end of the relevant period he applies to the Crown Court to consider the evidence on which his belief is based.

(2)If (after considering the evidence) the court concludes that the defendant’s belief is well founded—

(a)it must find the amount which should have been the amount required to be paid (taking the circumstances prevailing when the amount was found for the purposes of the order), and

(b)it may vary the order by substituting for the amount required to be paid such amount as it believes is just.

(3)The relevant period is the period of 28 days starting with—

(a)the date on which the defendant was convicted of the offence mentioned in section 28(2)(a), or

(b)if there are two or more offences and the convictions were on different dates, the date of the latest.

(4)But in a case where section 28(2)(a) applies to more than one offence the court must not make an order under this section unless it is satisfied that there is no possibility of any further proceedings being taken or continued in relation to any such offence in respect of which the defendant has not been convicted.

Commencement Information

I24S. 29 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

30 Discharge of orderE+W

(1)Subsection (2) applies if—

(a)the court makes a confiscation order under section 6 as applied by section 28,

(b)the defendant is later tried for the offence or offences concerned and acquitted on all counts, and

(c)he applies to the Crown Court to discharge the order.

(2)In such a case the court must discharge the order.

(3)Subsection (4) applies if—

(a)the court makes a confiscation order under section 6 as applied by section 28,

(b)the defendant ceases to be an absconder,

(c)subsection (1)(b) does not apply, and

(d)he applies to the Crown Court to discharge the order.

(4)In such a case the court may discharge the order if it finds that—

(a)there has been undue delay in continuing the proceedings mentioned in section 28(2), or

(b)the prosecutor does not intend to proceed with the prosecution.

(5)If the court discharges a confiscation order under this section it may make such a consequential or incidental order as it believes is appropriate.

Commencement Information

I25S. 30 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

AppealsE+W

31 Appeal by prosecutor [F154etc] F155...E+W

(1)If the Crown Court makes a confiscation order the prosecutor F156... may appeal to the Court of Appeal in respect of the order.

(2)If the Crown Court decides not to make a confiscation order the prosecutor F157... may appeal to the Court of Appeal against the decision.

(3)Subsections (1) and (2) do not apply to an order or decision made by virtue of section [F15810A, ] 19, 20, 27 or 28.

[F159(4)An appeal lies to the Court of Appeal against a determination, under section 10A, of the extent of the defendant's interest in property.

(5)An appeal under subsection (4) lies at the instance of—

(a)the prosecutor;

(b)a person who the Court of Appeal thinks is or may be a person holding an interest in the property, if subsection (6) or (7) applies.

(6)This subsection applies if the person was not given a reasonable opportunity to make representations when the determination was made.

(7)This subsection applies if it appears to the Court of Appeal to be arguable that giving effect to the determination would result in a serious risk of injustice to the person.

(8)An appeal does not lie under subsection (4) where—

(a)the Court of Appeal believes that an application under section 50 is to be made by the prosecutor for the appointment of a receiver,

(b)such an application has been made but has not yet been determined, or

(c)a receiver has been appointed under section 50.]

Textual Amendments

Commencement Information

I26S. 31 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

32 Court’s powers on appealE+W

(1)On an appeal under section 31(1) the Court of Appeal may confirm, quash or vary the confiscation order.

(2)On an appeal under section 31(2) the Court of Appeal may confirm the decision, or if it believes the decision was wrong it may—

(a)itself proceed under section 6 (ignoring subsections (1) to (3)), or

(b)direct the Crown Court to proceed afresh under section 6.

[F160(2A)On an appeal under section 31(4) the Court of Appeal may—

(a)confirm the determination, or

(b)make such order as it believes is appropriate.]

(3)In proceeding afresh in pursuance of this section the Crown Court must comply with any directions the Court of Appeal may make.

(4)If a court makes or varies a confiscation order under this section or in pursuance of a direction under this section it must—

(a)have regard to any fine imposed on the defendant in respect of the offence (or any of the offences) concerned;

(b)have regard to any order which falls within section 13(3) and has been made against him in respect of the offence (or any of the offences) concerned, unless the order has already been taken into account by a court in deciding what is the free property held by the defendant for the purposes of section 9.

(5)If the Court of Appeal proceeds under section 6 or the Crown Court proceeds afresh under that section in pursuance of a direction under this section subsections (6) to (10) apply.

(6)If a court has already sentenced the defendant for the offence (or any of the offences) concerned, section 6 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

(7)If an order has been made against the defendant in respect of the offence (or any of the offences) concerned under [F161section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 or Chapter 2 of Part 7 of the Sentencing Code] (compensation orders)[F162, section 161A of the Criminal Justice Act 2003 [F163or section 42 of the Sentencing Code] (orders requiring payment of surcharge)] [F164or section 4 of the Prevention of Social Housing Fraud Act 2013 (unlawful profit orders)]—

(a)the court must have regard to it, and

(b)section 13(5) and (6) above do not apply [F165in relation to it].

(8)Section 8(2) does not apply, and the rules applying instead are that the court must—

(a)take account of conduct occurring before the relevant date;

(b)take account of property obtained before that date;

(c)take account of property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

(9)In section 10—

(a)the first and second assumptions do not apply with regard to property first held by the defendant on or after the relevant date;

(b)the third assumption does not apply with regard to expenditure incurred by him on or after that date;

(c)the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

(10)Section 26 applies as it applies in the circumstances mentioned in subsection (1) of that section.

(11)The relevant date is the date on which the Crown Court decided not to make a confiscation order.

Textual Amendments

F164Words in s. 32(7) inserted (15.10.2013 for E., 5.11.2013 for W.) by Prevention of Social Housing Fraud Act 2013 (c. 3), s. 12, Sch. para. 20; S.I. 2013/2622, art. 2; S.I. 2013/2861, art. 2

Commencement Information

I27S. 32 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

33 Appeal to [F166Supreme Court] E+W

(1)An appeal lies to the [F167Supreme Court] from a decision of the Court of Appeal on an appeal under section 31.

[F168(2)An appeal under this section lies at the instance of—

(a)the defendant or the prosecutor (except where paragraph (b) applies);

(b)if the proceedings in the Court of Appeal were proceedings on an appeal under section 31(4), any person who was a party to those proceedings.]

(3)On an appeal from a decision of the Court of Appeal to confirm, vary or make a confiscation order the [F169Supreme Court] may confirm, quash or vary the order.

[F170(3A)On an appeal under this section from a decision under section 32(2A) the Supreme Court may—

(a)confirm the decision of the Court of Appeal, or

(b)make such order as it believes is appropriate.]

(4)On an appeal from a decision of the Court of Appeal to confirm the decision of the Crown Court not to make a confiscation order or from a decision of the Court of Appeal to quash a confiscation order the [F169Supreme Court] may—

(a)confirm the decision, or

(b)direct the Crown Court to proceed afresh under section 6 if it believes the decision was wrong.

(5)In proceeding afresh in pursuance of this section the Crown Court must comply with any directions the [F169Supreme Court] may make.

(6)If a court varies a confiscation order under this section or makes a confiscation order in pursuance of a direction under this section it must—

(a)have regard to any fine imposed on the defendant in respect of the offence (or any of the offences) concerned;

(b)have regard to any order which falls within section 13(3) and has been made against him in respect of the offence (or any of the offences) concerned, unless the order has already been taken into account by a court in deciding what is the free property held by the defendant for the purposes of section 9.

(7)If the Crown Court proceeds afresh under section 6 in pursuance of a direction under this section subsections (8) to (12) apply.

(8)If a court has already sentenced the defendant for the offence (or any of the offences) concerned, section 6 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

(9)If an order has been made against the defendant in respect of the offence (or any of the offences) concerned under [F171section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 or Chapter 2 of Part 7 of the Sentencing Code] (compensation orders) [F172, section 161A of the Criminal Justice Act 2003 [F173or section 42 of the Sentencing Code] (orders requiring payment of surcharge) ] [F174or section 4 of the Prevention of Social Housing Fraud Act 2013 (unlawful profit orders)]—

(a)the Crown Court must have regard to it, and

(b)section 13(5) and (6) above do not apply [F175in relation to it].

(10)Section 8(2) does not apply, and the rules applying instead are that the Crown Court must—

(a)take account of conduct occurring before the relevant date;

(b)take account of property obtained before that date;

(c)take account of property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

(11)In section 10—

(a)the first and second assumptions do not apply with regard to property first held by the defendant on or after the relevant date;

(b)the third assumption does not apply with regard to expenditure incurred by him on or after that date;

(c)the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

(12)Section 26 applies as it applies in the circumstances mentioned in subsection (1) of that section.

(13)The relevant date is—

(a)in a case where the Crown Court made a confiscation order which was quashed by the Court of Appeal, the date on which the Crown Court made the order;

(b)in any other case, the date on which the Crown Court decided not to make a confiscation order.

Textual Amendments

F174Words in s. 33(9) inserted (15.10.2013 for E., 5.11.2013 for W.) by Prevention of Social Housing Fraud Act 2013 (c. 3), s. 12, Sch. para. 21; S.I. 2013/2622, art. 2; S.I. 2013/2861, art. 2

Commencement Information

I28S. 33 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

Enforcement authorityE+W

F17634 Enforcement authorityE+W

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

Textual Amendments

Commencement Information

I29S. 34 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

Enforcement as fines etcE+W

35 [F177Enforcement as fines ]E+W

(1)This section applies if a court—

(a)makes a confiscation order, and

F178(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)[F179Sections 129(1) to (3) and (5) and 132(1) to (4) of the Sentencing Code] (functions of court as to fines and enforcing fines) apply as if the amount ordered to be paid were a fine imposed on the defendant by the court making the confiscation order.

[F180(2A)Where a court is fixing a term of imprisonment or detention under [F181section 129(3) of the Sentencing Code] (as applied by subsection (2) above) in respect of an amount ordered to be paid under a confiscation order, the maximum terms are those specified in the second column of the Table for amounts described in the corresponding entry in the first column.

TABLE
AmountMaximum term
£10,000 or less6 months
More than £10,000 but no more than £500,0005 years
More than £500,000 but no more than £1 million7 years
More than £1 million14 years

(2B)In the application of [F182subsection (2) of section 129 of the Sentencing Code] by virtue of subsection (2) above, the reference to [F183subsections (3) to (5)] of that section is to be read as a reference to—

(a)[F184subsections (3) and (5)] of that section, and

(b)subsection (2A) above.

(2C)The Secretary of State may by order—

(a)amend subsection (2A) so as to provide for minimum terms of imprisonment or detention under [F185section 129(3) of the Sentencing Code] (as applied by subsection (2) above) in respect of amounts ordered to be paid under a confiscation order;

(b)amend the Table in subsection (2A) so as to remove, alter or replace any entry (including an entry inserted by virtue of the power in paragraph (a) of this subsection) or to add any entry.]

(3)In the application of Part 3 of the Magistrates’ Courts Act 1980 (c. 43) to an amount payable under a confiscation order—

(a)ignore section 75 of that Act (power to dispense with immediate payment);

(b)such an amount is not a sum adjudged to be paid by a conviction for the purposes of section 81 (enforcement of fines imposed on young offenders) or a fine for the purposes of section 85 (remission of fines) of that Act;

(c)in section 87 of that Act ignore subsection (3) (inquiry into means).

Textual Amendments

F178S. 35(1)(b) and preceding word repealed (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 19(3), Sch. 14; S.I. 2008/755, art. 2(1)(a)(d) (with arts. 3-14)

F180S. 35(2A)-(2C) inserted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 10(1), 88(1); S.I. 2015/820, reg. 3(g)

Modifications etc. (not altering text)

Commencement Information

I30S. 35 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

F18636 Director appointed as enforcement authorityE+W

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

Textual Amendments

Commencement Information

I31S. 36 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

F18737 Director’s application for enforcementE+W

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

Textual Amendments

Commencement Information

I32S. 37 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

38 Provisions about imprisonment or detentionE+W

(1)Subsection (2) applies if—

(a)a warrant committing the defendant to prison or detention is issued for a default in payment of an amount ordered to be paid under a confiscation order in respect of an offence or offences, and

(b)at the time the warrant is issued the defendant is liable to serve a term of custody in respect of the offence (or any of the offences).

(2)In such a case the term of imprisonment or of detention under section 108 of [F188the Powers of Criminal Courts (Sentencing) Act 2000] (detention of persons aged 18 to 20 for default) to be served in default of payment of the amount does not begin to run until after the term mentioned in subsection (1)(b) above.

(3)The reference in subsection (1)(b) to the term of custody the defendant is liable to serve in respect of the offence (or any of the offences) is a reference to the term of imprisonment, or detention in a young offender institution, which he is liable to serve in respect of the offence (or any of the offences).

(4)For the purposes of subsection (3) consecutive terms and terms which are wholly or partly concurrent must be treated as a single term and the following must be ignored—

(a)any sentence suspended under [F189section 264 or 277 of the Sentencing Code] which has not taken effect at the time the warrant is issued;

(b)in the case of a sentence of imprisonment passed with an order under section 47(1) of the Criminal Law Act 1977 (c. 45) (sentences of imprisonment partly served and partly suspended) any part of the sentence which the defendant has not at that time been required to serve in prison;

(c)any term of imprisonment or detention fixed under [F190section 129(3) of the Sentencing Code] (term to be served in default of payment of fine etc) for which a warrant committing the defendant to prison or detention has not been issued at that time.

(5)If the defendant serves a term of imprisonment or detention in default of paying any amount due under a confiscation order, his serving that term does not prevent the confiscation order from continuing to have effect so far as any other method of enforcement is concerned.

Textual Amendments

Modifications etc. (not altering text)

Commencement Information

I33S. 38 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

39 Reconsideration etc: variation of prison termE+W

(1)Subsection (2) applies if—

(a)a court varies a confiscation order under section 21, 22, 23, 29, 32 or 33,

(b)the effect of the variation is to vary the maximum period applicable in relation to the order under [F191section 35(2A)], and

(c)the result is that that maximum period is less than the term of imprisonment or detention fixed in respect of the order under [F192section 129(3) of the Sentencing Code].

(2)In such a case the court must fix a reduced term of imprisonment or detention in respect of the confiscation order under [F193section 129(3) of the Sentencing Code] in place of the term previously fixed.

(3)Subsection (4) applies if paragraphs (a) and (b) of subsection (1) apply but paragraph (c) does not.

(4)In such a case the court may amend the term of imprisonment or detention fixed in respect of the confiscation order under [F194section 129(3) of the Sentencing Code].

(5)If the effect of section 12 is to increase the maximum period applicable in relation to a confiscation order under [F195section 35(2A)], on the application of the [F196prosecutor] the Crown Court may amend the term of imprisonment or detention fixed in respect of the order under [F197section 129(3) of that Code].

F198(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F191Words in s. 39(1)(b) substituted (1.12.2020 immediately before the consolidation date (see 2020 c. 9, ss. 3, 5(2)(3) and 2020 c. 17, ss. 2, 416)) by Sentencing (Pre-consolidation Amendments) Act 2020 (c. 9), s. 5(2)(3), Sch. 2 para. 121(a); S.I. 2012/1236, reg. 2

F192Words in s. 39(1)(c) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 194(2) (with Sch. 27); S.I. 2020/1236, reg. 2

F193Words in s. 39(2) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 194(2) (with Sch. 27); S.I. 2020/1236, reg. 2

F194Words in s. 39(4) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 194(2) (with Sch. 27); S.I. 2020/1236, reg. 2

F195Words in s. 39(5) substituted (1.12.2020 immediately before the consolidation date (see 2020 c. 9, ss. 3, 5(2)(3) and 2020 c. 17, ss. 2, 416)) by Sentencing (Pre-consolidation Amendments) Act 2020 (c. 9), s. 5(2)(3), Sch. 2 para. 121(b)(i); S.I. 2012/1236, reg. 2

F197Words in s. 39(5) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 194(3) (with Sch. 27); S.I. 2020/1236, reg. 2 and words in s. 39(5) substituted (1.12.2020 immediately before the consolidation date (see 2020 c. 9, ss. 3, 5(2)(3) and 2020 c. 17, ss. 2, 416)) by Sentencing (Pre-consolidation Amendments) Act 2020 (c. 9), s. 5(2)(3), Sch. 2 para. 121(b)(ii); S.I. 2012/1236, reg. 2

Modifications etc. (not altering text)

Commencement Information

I34S. 39 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

Restraint ordersE+W

40 Conditions for exercise of powersE+W

(1)The Crown Court may exercise the powers conferred by section 41 if any of the following conditions is satisfied.

(2)The first condition is that—

(a)a criminal investigation has been started in England and Wales with regard to an offence, and

(b)there [F199are reasonable grounds to suspect] that the alleged offender has benefited from his criminal conduct.

(3)The second condition is that—

(a)proceedings for an offence have been started in England and Wales and not concluded, and

(b)there is reasonable cause to believe that the defendant has benefited from his criminal conduct.

(4)The third condition is that—

(a)an application by the prosecutor F200... has been made under section 19, 20, 27 or 28 and not concluded, or the court believes that such an application is to be made, and

(b)there is reasonable cause to believe that the defendant has benefited from his criminal conduct.

(5)The fourth condition is that—

(a)an application by the prosecutor F201... has been made under section 21 and not concluded, or the court believes that such an application is to be made, and

(b)there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the defendant’s benefit exceeds the relevant amount (as defined in that section).

(6)The fifth condition is that—

(a)an application by the prosecutor F202... has been made under section 22 and not concluded, or the court believes that such an application is to be made, and

(b)there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the available amount exceeds the relevant amount (as defined in that section).

(7)The second condition is not satisfied if the court believes that—

(a)there has been undue delay in continuing the proceedings, or

(b)the prosecutor does not intend to proceed.

(8)If an application mentioned in the third, fourth or fifth condition has been made the condition is not satisfied if the court believes that—

(a)there has been undue delay in continuing the application, or

(b)the prosecutor F203... does not intend to proceed.

(9)If the first condition is satisfied—

(a)references in this Part to the defendant are to the alleged offender;

(b)references in this Part to the prosecutor are to the person the court believes is to have conduct of any proceedings for the offence;

(c)section 77(9) has effect as if proceedings for the offence had been started against the defendant when the investigation was started.

Textual Amendments

F199Words in s. 40(2)(b) substituted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 11(1), 88(1); S.I. 2015/820, reg. 3(h)

Commencement Information

I35S. 40 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

41 Restraint ordersE+W

(1)If any condition set out in section 40 is satisfied the Crown Court may make an order (a restraint order) prohibiting any specified person from dealing with any realisable property held by him.

(2)A restraint order may provide that it applies—

(a)to all realisable property held by the specified person whether or not the property is described in the order;

(b)to realisable property transferred to the specified person after the order is made.

[F204(2A)A restraint order must be made subject to an exception enabling relevant legal aid payments to be made (a legal aid exception).

(2B)A relevant legal aid payment is a payment that the specified person is obliged to make—

(a)by regulations under section 23 or 24 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and

(b)in connection with services provided in relation to an offence which falls within subsection (5),

whether the obligation to make the payment arises before or after the restraint order is made.]

(3)A restraint order may be made subject to [F205 other ] exceptions, and an exception may in particular—

(a)make provision for reasonable living expenses and reasonable legal expenses;

(b)make provision for the purpose of enabling any person to carry on any trade, business, profession or occupation;

F206(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)[F207But where an exception to a restraint order is made under subsection (3), it] must not make provision for any legal expenses which—

(a)relate to an offence which falls within subsection (5), and

(b)are incurred by the defendant or by a recipient of a tainted gift.

(5)These offences fall within this subsection—

(a)the offence mentioned in section 40(2) or (3), if the first or second condition (as the case may be) is satisfied;

(b)the offence (or any of the offences) concerned, if the third, fourth or fifth condition is satisfied.

[F208(5A)A legal aid exception—

(a)must be made subject to prescribed restrictions (if any) on—

(i)the circumstances in which payments may be made in reliance on the exception, or

(ii)the amount of the payments that may be made in reliance on the exception,

(b)must be made subject to other prescribed conditions (if any), and

(c)may be made subject to other conditions.

(5B)Any other exception to a restraint order may be made subject to conditions.]

(6)Subsection (7) applies if—

(a)a court makes a restraint order, and

(b)the applicant for the order applies to the court to proceed under subsection (7) (whether as part of the application for the restraint order or at any time afterwards).

(7)The court may make such order as it believes is appropriate for the purpose of ensuring that the restraint order is effective.

[F209(7A)Subsections (7B) and (7C) apply where the Crown Court makes a restraint order (by virtue of the first condition in section 40) as a result of a criminal investigation having been started in England and Wales with regard to an offence.

(7B)The court—

(a)must include in the order a requirement for the applicant for the order to report to the court on the progress of the investigation at such times and in such manner as the order may specify (a “reporting requirement”), and

(b)must discharge the order if proceedings for the offence are not started within a reasonable time (and this duty applies whether or not an application to discharge the order is made under section 42(3)).

(7C)The duty under subsection (7B)(a) does not apply if the court decides that, in the circumstances of the case, a reporting requirement should not be imposed, but the court—

(a)must give reasons for its decision, and

(b)may at any time vary the order so as to include a reporting requirement (and this power applies whether or not an application to vary the order is made under section 42(3)).]

[F210(7D)In considering whether to make an order under subsection (7), the court must, in particular, consider whether any restriction or prohibition on the defendant's travel outside the United Kingdom ought to be imposed for the purpose mentioned in that subsection.]

(8)A restraint order does not affect property for the time being subject to a charge under any of these provisions—

(a)section 9 of the Drug Trafficking Offences Act 1986 (c. 32);

(b)section 78 of the Criminal Justice Act 1988 (c. 33);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));

(d)section 27 of the Drug Trafficking Act 1994 (c. 37);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

(9)Dealing with property includes removing it from England and Wales.

[F211(10)In this section “prescribed” means prescribed by regulations made by the Secretary of State.]

Textual Amendments

F206S. 41(3)(c) omitted (1.6.2015) by virtue of Crime and Courts Act 2013 (c. 22), ss. 46(3)(b), 61(2); S.I. 2015/813, art. 3(b)

F207Words in s. 41(4) substituted (1.6.2015) by Crime and Courts Act 2013 (c. 22), ss. 46(4), 61(2); S.I. 2015/813, art. 3(b)

F208S. 41(5A)(5B) inserted (20.3.2015 for specified purposes, 1.6.2015 in so far as not already in force) by Crime and Courts Act 2013 (c. 22), ss. 46(5), 61(2); S.I. 2015/813, arts. 2(a)(ii), 3(b)

F209S. 41(7A)-(7C) inserted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 11(2), 88(1); S.I. 2015/820, reg. 3(h)

Commencement Information

I36S. 41 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch. (with arts. 5, 10-13)

[F21241ARestraint orders: power to retain seized property etc.E+W

(1)A restraint order may include provision authorising the detention of any property to which it applies if the property—

(a)is seized by an appropriate officer under a relevant seizure power, or

(b)is produced to an appropriate officer in compliance with a production order under section 345.

(2)Provision under subsection (1) may, in particular—

(a)relate to specified property, to property of a specified description or to all property to which the restraint order applies;

(b)relate to property that has already been seized or produced or to property that may be seized or produced in future.

(3)“Appropriate officer” means—

(a)an accredited financial investigator;

(b)a constable;

(c)an officer of Revenue and Customs;

[F213(ca)an immigration officer;]

[F214(d)a National Crime Agency officer,]

(e)a member of staff of the relevant director (within the meaning of section 352(5A)).

(4)“Relevant seizure power” means a power to seize property which is conferred by or by virtue of—

(a)section 47C,

(b)section 352, or

(c)Part 2 or 3 of the Police and Criminal Evidence Act 1984 (including as applied by order under section 114(2) of that Act).

(5)The Secretary of State may by order amend the definition of “relevant seizure power”.]

Textual Amendments

F213S. 41A(3)(ca) inserted (22.11.2014) by Crime and Courts Act 2013 (c. 22), Sch. 21 para. 15 (with Sch. 21 para. 40); S.I. 2014/3098, art. 2(e)

F214S. 41A(3)(d) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 112; S.I. 2013/1682, art. 3(v)

42 Application, discharge and variationE+W

(1)A restraint order—

(a)may be made only on an application by an applicant falling within subsection (2);

(b)may be made on an ex parte application to a judge in chambers.

(2)These applicants fall within this subsection—

(a)the prosecutor;

F215(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)an accredited financial investigator.

(3)An application to discharge or vary a restraint order or an order under section 41(7) may be made to the Crown Court by—

(a)the person who applied for the order;

(b)any person affected by the order.

(4)Subsections (5) to [F216(8)] apply to an application under subsection (3).

(5)The court—

(a)may discharge the order;

(b)may vary the order.

(6)If the condition in section 40 which was satisfied was that proceedings were started or an application was made, the court must discharge the order on the conclusion of the proceedings or of the application (as the case may be).

[F217(6A)The duty in subsection (6) to discharge a restraint order on the conclusion of proceedings does not apply where—

(a)the proceedings are concluded by reason of a defendant's conviction for an offence being quashed,

(b)the order is in force at the time when the conviction is quashed, and

(c)the Court of Appeal has ordered the defendant to be retried for the offence or the prosecutor has applied for such an order to be made.

(6B)But the court must discharge the restraint order—

(a)if the Court of Appeal declines to make an order for the defendant to be retried,

(b)if the Court of Appeal orders the defendant to be retried but proceedings for the retrial are not started within a reasonable time, or

(c)otherwise, on the conclusion of proceedings for the retrial of the defendant.]

[F218(7)If the condition in section 40 which was satisfied was that an investigation was started—

(a)the court must discharge the order if within a reasonable time proceedings for the offence are not started;

(b)otherwise, the court must discharge the order on the conclusion of the proceedings.

(8)If the condition in section 40 which was satisfied was that an application was to be made—

(a)the court must discharge the order if within a reasonable time the application is not made;

(b)otherwise, the court must discharge the order on the conclusion of the application.]

Textual Amendments

F217S. 42(6A)(6B) inserted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 12, 88(1); S.I. 2015/820, reg. 3(i)

F218S. 42(7)(8) substituted for s. 42(7) (1.6.2015) by Serious Crime Act 2015 (c. 9), s. 88(1), Sch. 4 para. 32(3); S.I. 2015/820, reg. 3(q)(iii)

Modifications etc. (not altering text)

Commencement Information

I37S. 42 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

43 Appeal to Court of AppealE+W

(1)If on an application for a restraint order the court decides not to make one, the person who applied for the order may appeal to the Court of Appeal against the decision.

(2)If an application is made under section 42(3) in relation to a restraint order or an order under section 41(7) the following persons may appeal to the Court of Appeal in respect of the Crown Court’s decision on the application—

(a)the person who applied for the order;

(b)any person affected by the order.

(3)On an appeal under subsection (1) or (2) the Court of Appeal may—

(a)confirm the decision, or

(b)make such order as it believes is appropriate.

Commencement Information

I38S. 43 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

44 Appeal to [F219Supreme Court] E+W

(1)An appeal lies to the [F220Supreme Court] from a decision of the Court of Appeal on an appeal under section 43.

(2)An appeal under this section lies at the instance of any person who was a party to the proceedings before the Court of Appeal.

(3)On an appeal under this section the [F221Supreme Court] may—

(a)confirm the decision of the Court of Appeal, or

(b)make such order as it believes is appropriate.

Textual Amendments

Commencement Information

I39S. 44 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

[F22244ADetention of property pending appealE+W

(1)This section applies where—

(a)a restraint order includes provision under section 41A authorising the detention of property, and

(b)the restraint order is discharged under section 42(5) or 43(3)(b).

(2)This section also applies where—

(a)a restraint order includes provision under section 41A authorising the detention of property, and

(b)the restraint order is varied under section 42(5) or 43(3)(b) so as to omit any such provision.

(3)The property may be detained until there is no further possibility of an appeal against—

(a)the decision to discharge or vary the restraint order, or

(b)any decision made on an appeal against that decision.]

Textual Amendments

F22345 SeizureE+W

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

Textual Amendments

Commencement Information

I40S. 45 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

46 Hearsay evidenceE+W

(1)Evidence must not be excluded in restraint proceedings on the ground that it is hearsay (of whatever degree).

(2)Sections 2 to 4 of the Civil Evidence Act 1995 (c. 38) apply in relation to restraint proceedings as those sections apply in relation to civil proceedings.

(3)Restraint proceedings are proceedings—

(a)for a restraint order;

(b)for the discharge or variation of a restraint order;

(c)on an appeal under section 43 or 44.

(4)Hearsay is a statement which is made otherwise than by a person while giving oral evidence in the proceedings and which is tendered as evidence of the matters stated.

(5)Nothing in this section affects the admissibility of evidence which is admissible apart from this section.

Commencement Information

I41S. 46 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

47 SupplementaryE+W

(1)The registration Acts—

(a)apply in relation to restraint orders as they apply in relation to orders which affect land and are made by the court for the purpose of enforcing judgments or recognisances;

(b)apply in relation to applications for restraint orders as they apply in relation to other pending land actions.

(2)The registration Acts are—

(a)the Land Registration Act 1925 (c. 21);

(b)the Land Charges Act 1972 (c. 61);

(c)the Land Registration Act 2002 (c. 9).

(3)But no notice may be entered in the register of title under the Land Registration Act 2002 in respect of a restraint order.

(4)The person applying for a restraint order must be treated for the purposes of section 57 of the Land Registration Act 1925 (inhibitions) as a person interested in relation to any registered land to which—

(a)the application relates, or

(b)a restraint order made in pursuance of the application relates.

Modifications etc. (not altering text)

Commencement Information

I42S. 47 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

[F224Search and seizure powersE+W

Textual Amendments

F224Ss. 47A-47S and cross-heading inserted (22.11.2014 for the insertion of ss. 47A, 47G, 47S(1)-(5) for specified purposes, 1.6.2015 in so far as not already in force) by Policing and Crime Act 2009 (c. 26), ss. 55(2), 116(1); S.I. 2014/3101, art. 3; S.I. 2015/983, art. 2(2)(a)

47ASections 47B to 47S: meaning of “appropriate officer”E+W

(1)In sections 47B to 47S “appropriate officer” means—

(a)an officer of Revenue and Customs,

[F225(aa)an immigration officer;]

(b)a constable, F226...

[F227(ba)an SFO officer, or]

(c)an accredited financial investigator.

(2)In subsection (1)(c) the reference to an accredited financial investigator is a reference to an accredited financial investigator who falls within a description specified in an order made for the purposes of that provision by the Secretary of State [F228or the Welsh Ministers] under section 453.

Textual Amendments

F226Word in s. 47A(1)(b) omitted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by virtue of Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 3(a); S.I. 2018/78, reg. 3(aa)

F227S. 47A(1)(ba) inserted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 3(b); S.I. 2018/78, reg. 3(aa)

Modifications etc. (not altering text)

47BConditions for exercise of powersE+W

(1)An appropriate officer may exercise the power conferred by section 47C if satisfied that any of the following conditions is met.

(2)The first condition is that—

(a)a criminal investigation has been started in England and Wales with regard to an indictable offence,

F229(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)proceedings for the offence have not yet been started against the person in England and Wales,

(d)there [F230are reasonable grounds to suspect] that the person has benefited from conduct constituting the offence, and

(e)a restraint order is not in force in respect of any realisable property.

(3)The second condition is that—

(a)a criminal investigation has been started in England and Wales with regard to an indictable offence,

F231(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)proceedings for the offence have not yet been started against the person in England and Wales, and

(d)a restraint order is in force in respect of any realisable property.

(4)The third condition is that—

(a)proceedings for an indictable offence have been started in England and Wales and have not been concluded,

(b)there is reasonable cause to believe that the defendant has benefited from conduct constituting the offence, and

(c)a restraint order is not in force in respect of any realisable property.

(5)The fourth condition is that—

(a)proceedings for an indictable offence have been started in England and Wales and have not been concluded, and

(b)a restraint order is in force in respect of any realisable property.

(6)The fifth condition is that—

(a)an application by the prosecutor has been made under section 19, 20, 27 or 28 and not concluded, or the officer believes that such an application is to be made, and

(b)there is reasonable cause to believe that the defendant has benefited from criminal conduct.

(7)The sixth condition is that—

(a)an application by the prosecutor has been made under section 21 and not concluded, or the officer believes that such an application is to be made, and

(b)there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the defendant's benefit exceeds the relevant amount (as defined in that section).

(8)The seventh condition is that—

(a)an application by the prosecutor has been made under section 22 and not concluded, or the officer believes that such an application is to be made, and

(b)there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the available amount exceeds the relevant amount (as defined in that section).

(9)The third or fourth condition is not met if the officer believes that—

(a)there has been undue delay in continuing the proceedings, or

(b)the prosecutor does not intend to proceed.

(10)If an application mentioned in the fifth, sixth or seventh condition has been made the condition is not met if the officer believes that—

(a)there has been undue delay in continuing the application, or

(b)the prosecutor does not intend to proceed.

(11)In relation to the first or second condition references in sections 47C to 47S to the defendant are to the person mentioned in that condition.

(12)In relation to the first or second condition section 77(9) has effect as if proceedings for the offence had been started against the defendant when the investigation was started.

Textual Amendments

F229S. 47B(2)(b) omitted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by virtue of Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 2(a); S.I. 2024/269, reg. 4(a)

F230Words in s. 47B(2)(d) substituted (1.3.2016) by Serious Crime Act 2015 (c. 9), ss. 13(1), 88(1); S.I. 2016/148, reg. 3(a)

F231S. 47B(3)(b) omitted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by virtue of Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 2(b); S.I. 2024/269, reg. 4(a)

47CPower to seize propertyE+W

(1)On being satisfied as mentioned in section 47B(1) an appropriate officer may seize any realisable property if the officer has reasonable grounds for suspecting that—

(a)the property may otherwise be made unavailable for satisfying any confiscation order that has been or may be made against the defendant, or

(b)the value of the property may otherwise be diminished as a result of conduct by the defendant or any other person.

(2)But the officer may not [F232under subsection (1)] seize—

(a)cash, or

(b)exempt property.

(3)“Cash” has the same meaning as in section 289.

(4)“Exempt property” means—

(a)such tools, books, vehicles and other items of equipment as are necessary to the defendant for use personally in the defendant's employment, business or vocation;

(b)such clothing, bedding, furniture, household equipment, provisions or other things as are necessary for satisfying the basic domestic needs of the defendant and the defendant's family.

(5)In relation to realisable property which is free property held by the recipient of a tainted gift, references in subsection (4) to the defendant are to be read as references to the recipient of that gift.

Section 47B(11) is subject to this subsection.

[F233(5A)On being satisfied as mentioned in section 47B(1) an appropriate officer may seize any free property if the officer has reasonable grounds for suspecting that it is a cryptoasset-related item.

(5B)A “cryptoasset-related item” is an item of property that is, or that contains or gives access to information that is, likely to assist in the seizure under subsection (1) of any cryptoasset.

(5C)The circumstances in which a cryptoasset is “seized” for the purposes of subsection (1) include circumstances in which it is transferred into a crypto wallet controlled by the appropriate officer.

(5D)If an appropriate officer is lawfully on any premises, the officer may, for the purpose of—

(a)determining whether any property is a cryptoasset-related item, or

(b)enabling or facilitating the seizure under subsection (1) of any cryptoasset,

require any information which is stored in any electronic form and accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible, or from which it can readily be produced in a visible and legible form.

(5E)But subsection (5D) does not authorise an appropriate officer to require a person to produce information which the person would be entitled to refuse to provide on grounds of legal professional privilege in proceedings in the High Court.

(5F)Where an appropriate officer has seized a cryptoasset-related item under subsection (5A), they may use any information obtained from it for the purpose of—

(a)identifying or gaining access to a crypto wallet, and

(b)by doing so, enabling or facilitating the seizure under subsection (1) of any cryptoassets.]

(6)The power conferred by this section—

(a)may be exercised only with the appropriate approval under section 47G unless, in the circumstances, it is not practicable to obtain that approval before exercising the power, and

[F234(aa)where applicable, in accordance with subsection (6A) or (6B).]

[F235(6A)The power conferred by this section is exercisable] by an officer of Revenue and Customs only if the officer has reasonable grounds for suspecting that conduct constituting the relevant offence relates to an assigned matter (within the meaning of the Customs and Excise Management Act 1979).

[F236(6B)The power conferred by this section is exercisable by an immigration officer only if the officer has reasonable grounds for suspecting that conduct constituting the relevant offence—

(a)relates to the entitlement of one or more persons who are not nationals of the United Kingdom to enter, transit across, or be in, the United Kingdom (including conduct which relates to conditions or other controls on any such entitlement), or

(b)is undertaken for the purposes of, or otherwise in relation to, a relevant nationality enactment.]

(7)“Relevant offence” means—

(a)in a case where the officer is satisfied that the first, second, third or fourth condition in section 47B is met, the offence mentioned in that condition,

(b)in a case where the officer is satisfied that any of the other conditions in section 47B is met, the offence (or any of the offences) concerned.

[F237(8)Relevant nationality enactment” means any enactment in—

(a)the British Nationality Act 1981,

(b)the Hong Kong Act 1985,

(c)the Hong Kong (War Wives and Widows) Act 1996,

(d)the British Nationality (Hong Kong) Act 1997,

(e)the British Overseas Territories Act 2002, or

(f)an instrument made under any of those Acts.]

Textual Amendments

F232Words in s. 47C(2) inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 3(2); S.I. 2024/269, reg. 4(a)

F233S. 47C(5A)-(5F) inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 3(3); S.I. 2024/269, reg. 4(a)

47DSearch power: premisesE+W

(1)If an appropriate officer is lawfully on any premises the officer may search the premises for the purpose of finding any property which—

(a)the officer has reasonable grounds for suspecting may be found there, and

(b)if found there, the officer intends to seize under section 47C.

(2)The power conferred by this section may be exercised only with the appropriate approval under section 47G unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

(3)“Premises” has the meaning given by section 23 of the Police and Criminal Evidence Act 1984.

47ESearch power: peopleE+W

(1)An appropriate officer may exercise the following powers if the officer has reasonable grounds for suspecting that a person is carrying property that may be seized under section 47C.

(2)The officer may, so far as the officer thinks it necessary or expedient for the purpose of seizing the property under that section, require the person—

(a)to permit a search of any article with the person,

(b)to permit a search of the person.

(3)An officer exercising a power under subsection (2) may detain the person for so long as is necessary for its exercise.

(4)A power conferred by this section may be exercised only with the appropriate approval under section 47G unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

(5)This section does not require a person to submit to an intimate search or strip search (within the meaning of section 164 of the Customs and Excise Management Act 1979).

47FSearch power: vehiclesE+W

(1)The powers specified in subsection (4) are exercisable if—

(a)an appropriate officer has reasonable grounds for suspecting that a vehicle contains property that may be seized under section 47C, and

(b)it appears to the officer that the vehicle is under the control of a person who is in or in the vicinity of the vehicle.

(2)The powers are exercisable only if the vehicle is—

(a)in any place to which, at the time of the proposed exercise of the powers, the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission, or

(b)in any other place to which at that time people have ready access but which is not a dwelling.

(3)But if the vehicle is in a garden or yard or other land occupied with and used for the purposes of a dwelling, the officer may exercise the powers under subsection (4) only if the officer has reasonable grounds for believing—

(a)that the person does not reside in the dwelling, and

(b)that the vehicle is not in the place in question with the express or implied permission of another who resides in the dwelling.

(4)The officer may, so far as the officer thinks it necessary or expedient for the purpose of seizing the property under section 47C, require the person to—

(a)permit entry to the vehicle,

(b)permit a search of the vehicle.

(5)An officer exercising a power under subsection (4) may detain the vehicle for so long as is necessary for its exercise.

(6)A power conferred by this section may be exercised only with the appropriate approval under section 47G unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

47G“Appropriate approval”E+W

(1)This section has effect for the purposes of sections 47C, 47D, 47E and 47F.

(2)The appropriate approval, in relation to the exercise of a power by an appropriate officer, means the approval of a justice of the peace or (if that is not practicable in any case) the approval of a senior officer.

(3)A senior officer means—

(a)in relation to the exercise of a power by an officer of Revenue and Customs, an officer of Revenue and Customs of a rank designated by the Commissioners for Her Majesty's Revenue and Customs as equivalent to that of a senior police officer,

[F238(aa)in relation to the exercise of a power by an immigration officer, an immigration officer of a rank designated by the Secretary of State as equivalent to that of a senior police officer,]

[F239(ab)in relation to the exercise of a power by a National Crime Agency officer, the Director General of the National Crime Agency or any other National Crime Agency officer authorised by the Director General (whether generally or specifically) for this purpose,]

[F240(ac)in relation to the exercise of a power by an SFO officer, the Director of the Serious Fraud Office,]

(b)in relation to the exercise of a power by a constable, a senior police officer,

[F241(ba)in relation to the exercise of a power by an accredited financial investigator who is—

(i)a member of the civilian staff of a police force in England and Wales (including the metropolitan police force), within the meaning of Part 1 of the Police Reform and Social Responsibility Act 2011, or

(ii)a member of staff of the City of London police force,

a senior police officer,]

(c)in relation to the exercise of a power by an accredited financial investigator [F242who does not fall within any of the preceding paragraphs], an accredited financial investigator who falls within a description specified in an order made for this purpose by the Secretary of State [F243or the Welsh Ministers] under section 453.

(4)A senior police officer means a police officer of at least the rank of inspector.

Textual Amendments

F240S. 47G(3)(ac) inserted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 4; S.I. 2018/78, reg. 3(aa)

F241S. 47G(3)(ba) inserted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 31(2), 58(1)(6); S.I. 2018/78, reg. 3(n)

F242Words in s. 47G(3)(c) inserted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 21; S.I. 2018/78, reg. 5(1)(e)

Modifications etc. (not altering text)

47HExercise of powers without judicial approvalE+W

(1)An appropriate officer must give a written report to the appointed person in any case where—

(a)the officer seizes property under section 47C without the approval of a justice of the peace, and

(b)any of the property seized is not detained for more than 48 hours.

(2)An appropriate officer must also give a written report to the appointed person in any case where—

(a)the officer exercises any of the powers conferred by sections 47D, 47E and 47F without the approval of a justice of the peace, and

(b)no property is seized under section 47C.

(3)A report under this section must give particulars of the circumstances which led the officer to believe that—

(a)the powers were exercisable, and

(b)it was not practicable to obtain the approval of a justice of the peace.

(4)The appointed person means a person appointed for the purposes of this subsection by the Secretary of State.

(5)The appointed person must not be a person employed under or for the purposes of a government department; and the terms and conditions of appointment, including any remuneration or expenses to be paid, are to be determined by the Secretary of State.

(6)The period of 48 hours mentioned in subsection (1)(b) is to be calculated in accordance with subsection (7).

(7)In calculating a period of 48 hours in accordance with this subsection, no account is to be taken of—

(a)any Saturday or Sunday,

(b)Christmas Day,

(c)Good Friday, or

(d)any day that is a bank holiday under the Banking and Financial Dealings Act 1971 in England and Wales.

47IReport by appointed person on exercise of powersE+W

(1)As soon as possible after the end of each financial year, the person appointed under section 47H(4) must prepare a report for that year.

(2)“Financial year” means—

(a)the period beginning with the day on which section 55 of the Policing and Crime Act 2009 comes into force and ending with the next 31 March (which is the first financial year), and

(b)each subsequent period of twelve months beginning with 1 April.

(3)The report must give the appointed person's opinion as to the circumstances and manner in which the powers conferred by sections 47C, 47D, 47E and 47F are being exercised in cases where the officer who exercised them is required to give a report under section 47H.

(4)The report may make any recommendations the appointed person considers appropriate.

(5)The appointed person must send a copy of the report to the Secretary of State.

(6)The Secretary of State must—

(a)publish any report received under subsection (5), and

(b)lay a copy before Parliament.

(7)Before acting under subsection (6) the Secretary of State must exclude from the report any matter which the Secretary of State thinks is likely to prejudice any criminal investigation or criminal proceedings.

(8)If the Secretary of State excludes any matter from the report the Secretary of State must comply with subsection (6) in relation to the whole of the report as soon as the Secretary of State thinks that the excluded matter is no longer likely to prejudice any criminal investigation or criminal proceedings.

47JInitial detention of seized propertyE+W

(1)This section applies if an appropriate officer seizes property under section 47C.

(2)The property may be detained initially for a period of 48 hours.

(3)The period of 48 hours is to be calculated in accordance with section 47H(7).

47KFurther detention pending making of restraint orderE+W

(1)This section applies if—

(a)property is detained under section 47J, and

(b)no restraint order is in force in respect of the property.

(2)If within the period mentioned in section 47J an application is made for a restraint order which includes provision under section 41A authorising detention of the property, the property may be detained until the application is determined or otherwise disposed of.

(3)If such an application is made within that period and the application is refused, the property may be detained until there is no further possibility of an appeal against—

(a)the decision to refuse the application, or

(b)any decision made on an appeal against that decision.

(4)In subsection (2) the reference to the period mentioned in section 47J includes that period as extended by any order under section 47M.

[F244(5)Exempt property seized under section 47C(5A) may be detained under subsections (2) and (3) only with the approval of a senior officer.

(6)In subsection (5)—

  • “exempt property” has the meaning given in section 47C(4) (reading references there to the defendant as references to the person by whom the property is held);

  • “senior officer” has the meaning given in section 47G(3) (and for this purpose, the powers under subsections (2) and (3) to detain property are to be treated as exercised by the appropriate officer who seized the property).]

Textual Amendments

F244S. 47K(5)(6) inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 5; S.I. 2024/269, reg. 4(a)

47LFurther detention pending variation of restraint orderE+W

(1)This section applies if—

(a)property is detained under section 47J,

(b)a restraint order is in force in respect of the property, and

(c)the order does not include provision under section 41A authorising the detention of the property.

(2)If within the period mentioned in section 47J an application is made for the order to be varied so as to include provision under section 41A authorising detention of the property, the property may be detained until the application is determined or otherwise disposed of.

(3)If such an application is made within that period and the application is refused, the property may be detained until there is no further possibility of an appeal against—

(a)the decision to refuse the application, or

(b)any decision made on an appeal against that decision.

[F245(4)Exempt property seized under section 47C(5A) may be detained under subsections (2) and (3) only with the approval of a senior officer.

(5)In subsection (4)—

  • “exempt property” has the meaning given in section 47C(4) (reading references there to the defendant as references to the person by whom the property is held);

  • “senior officer” has the meaning given in section 47G(3) (and for this purpose, the powers under subsections (2) and (3) to detain property are to be treated as exercised by the appropriate officer who seized the property).]

Textual Amendments

F245S. 47L(4)(5) inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 6; S.I. 2024/269, reg. 4(a)

47MFurther detention in other casesE+W

(1)This section applies if—

(a)property is detained under section 47J,

(b)no restraint order is in force in respect of the property, and

(c)no application has been made for a restraint order which includes provision under section 41A authorising detention of the property.

(2)A magistrates' court may by order extend the period for which the property or any part of it may be detained under section 47J if satisfied that—

(a)any of the conditions in section 47B is met (reading references in that section to the officer as references to the court),

(b)the property or part is realisable property other than exempt property F246..., and

(c)there are reasonable grounds for suspecting that—

(i)the property may otherwise be made unavailable for satisfying any confiscation order that has been or may be made against the defendant, or

(ii)the value of the property may otherwise be diminished as a result of conduct by the defendant or any other person.

[F247(2A)A magistrates’ court may by order extend the period for which the property may be detained under section 47J if satisfied that—

(a)any of the conditions in section 47B is met (reading references in that section to the officer as references to the court),

(b)the property is free property, and

(c)there are reasonable grounds for suspecting that the property is a cryptoasset-related item.

(2B)An order under subsection (2A) may not be made in respect of exempt property unless the court is satisfied that the person applying for the order is working diligently and expeditiously—

(a)to determine whether the property is a cryptoasset-related item, or

(b)if it has already been determined to be such an item, to seize any related cryptoassets under section 47C(1).

(2C)An order under subsection (2A) may not extend the period for which the property may be detained beyond the period of—

(a)six months beginning with the date of the order, or

(b)in the case of exempt property, 14 days beginning with that date.

This does not prevent the period from being further extended by another order under this section.

(2D)The period of 14 days referred to in subsection (2C)(b) is to be calculated in accordance with section 47H(7) (reading the reference there to 48 hours as a reference to 14 days).]

(3)An application for an order may be made by—

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

[F248(aa)an immigration officer;]

(b)a constable,

[F249(ba)an SFO officer,]

(c)an accredited financial investigator, or

(d)the prosecutor.

(4)If the property was seized in reliance on the first or second condition in section 47B, “the prosecutor” means a person who is to have conduct of any proceedings for the offence.

(5)An order under this section must provide for notice to be given to persons affected by it.

(6)In this section—

  • [F250“exempt property” has the meaning given in section 47C(4) (reading references there to the defendant as references to the person by whom the property is held);]

  • “part” includes portion.

Textual Amendments

F246Words in s. 47M(2)(b) omitted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by virtue of Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 7(2); S.I. 2024/269, reg. 4(a)

F247S. 47M(2A)-(2D) inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 7(3); S.I. 2024/269, reg. 4(a)

F249S. 47M(3)(ba) inserted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 5; S.I. 2018/78, reg. 3(aa)

F250Words in s. 47M(6) inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 7(4); S.I. 2024/269, reg. 4(a)

Modifications etc. (not altering text)

47NDischarge, variation and lapse of detention orderE+W

(1)An order under section 47M may be discharged or varied.

(2)An application for variation or discharge of the order may be made by—

(a)a person mentioned in section 47M(3), or

(b)any person affected by the order.

(3)On an application under this section the court must discharge the order if—

(a)the order was made on the ground that the first or second condition in section 47B was met but proceedings for the offence mentioned in that condition have not been started within a reasonable time,

(b)the order was made on the ground that the third or fourth condition in section 47B was met but proceedings for the offence mentioned in that condition have now been concluded,

(c)the order was made on the ground that the fifth, sixth or seventh condition in section 47B was met but the application mentioned in that condition has now been concluded or, as the case may be, has not been made within a reasonable time.

(4)An order made under section 47M lapses if a restraint order is made in respect of the property to which it relates (but provision authorising detention of the property may have been included in the restraint order by virtue of section 41A).

47OAppealsE+W

(1)If on an application for an order under section 47M the magistrates' court decides not to make an order, a person mentioned in subsection (3) of that section may appeal to the Crown Court against the decision.

(2)If an application is made under section 47N in relation to an order the following persons may appeal to the Crown Court in respect of the magistrates' court's decision on the application—

(a)a person mentioned in section 47M(3), or

(b)any person affected by the order.

47PDetention of property pending section 47O appealE+W

(1)This section applies where—

(a)an application for an order under section 47M is made within the period mentioned in section 47J, and

(b)the application is refused.

(2)This section also applies where—

(a)an order is made under section 47M extending the period for which property may be detained under section 47J, and

(b)the order is discharged or varied so that detention of the property is no longer authorised by virtue of the order.

(3)The property may be detained until there is no further possibility of an appeal against the decision to refuse the application or discharge or vary the order (as the case may be).

47QHearsay evidence in detention order proceedingsE+W

(1)Evidence must not be excluded in detention order proceedings on the ground that it is hearsay (of whatever degree).

(2)Sections 2 to 4 of the Civil Evidence Act 1995 apply in relation to detention order proceedings as those sections apply in relation to civil proceedings.

(3)Detention order proceedings are proceedings—

(a)for an order under section 47M;

(b)for the discharge or variation of such an order;

(c)on an appeal under section 47O.

(4)Hearsay is a statement which is made otherwise than by a person while giving oral evidence in the proceedings and which is tendered as evidence of the matters stated.

(5)Nothing in this section affects the admissibility of evidence which is admissible apart from this section.

47RRelease of propertyE+W

(1)This section applies in relation to property which—

(a)has been seized by an appropriate officer under section 47C, and

(b)is detained under or by virtue of any of sections 47J to 47M and 47P.

(2)The property must be released if at any time an appropriate officer decides that the detention condition is no longer met.

(3)The detention condition is met for so long as—

(a)any of the conditions in section 47B is met, and

(b)there are reasonable grounds for the suspicion mentioned in section 47C(1) [F251or (5A)].

(4)Nothing in this section requires property to be released if there is a power to detain it otherwise than under or by virtue of sections 47J to 47M and 47P.

(5)Nothing in this section affects the operation of any power or duty to release property that arises apart from this section.

[F252(6)If a cryptoasset-related item which has been released is not claimed within the period of a year beginning with the date on which it was released, the appropriate officer may—

(a)retain the item and deal with it as they see fit,

(b)dispose of the item, or

(c)destroy the item.

(7)The powers in subsection (6) may be exercised only—

(a)where the appropriate officer has taken reasonable steps to notify—

(i)the person from whom the item was seized, and

(ii)any other persons who the appropriate officer has reasonable grounds to believe have an interest in the item,

that the item has been released, and

(b)with the approval of a senior officer.

(8)“Senior officer” in subsection (7)(b) has the meaning given in section 47G(3).

(9)Any proceeds of a disposal of the item are to be paid into the Consolidated Fund.]]

Textual Amendments

F251Words in s. 47R(3)(b) inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 4; S.I. 2024/269, reg. 4(a)

F252S. 47R(6)-(9) inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 8; S.I. 2024/269, reg. 4(a)

[F224Code of practice about search and seizure and detention of propertyE+W

47SCodes of practiceE+W

(1)The Secretary of State must make a code of practice in connection with—

(a)the carrying out by appropriate officers of the functions conferred by sections 47C to 47H,

(b)the carrying out by senior officers of their functions under section 47G, and

(c)the detention of property under or by virtue of sections 41A, 44A and 47J to 47P.

(2)Where the Secretary of State proposes to issue a code of practice the Secretary of State must—

(a)publish a draft,

(b)consider any representations made about the draft,

(c)if the Secretary of State thinks appropriate, modify the draft in the light of any such representations.

[F253(2A)The Secretary of State must also consult the Attorney General about the draft in its application to the exercise of powers by SFO officers and the Director of the Serious Fraud Office.]

(3)The Secretary of State must lay a draft of the code before Parliament.

(4)When the Secretary of State has laid a draft of the code before Parliament the Secretary of State may bring it into operation by order.

(5)The Secretary of State may revise the whole or any part of the code and issue the code as revised; and subsections (2) to (4) apply to such a revised code as they apply to the original code.

(6)A failure by a person to comply with a provision of the code does not of itself make the person liable to criminal or civil proceedings.

(7)The code is admissible in evidence in criminal or civil proceedings and is to be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant.]

Textual Amendments

F253S. 47S(2A) inserted (27.4.2017 for specified purposes, 31.10.2017 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 6; S.I. 2017/991, reg. 2(k)

Management receiversE+W

48 AppointmentE+W

(1)Subsection (2) applies if—

(a)the Crown Court makes a restraint order, and

(b)the applicant for the restraint order applies to the court to proceed under subsection (2) (whether as part of the application for the restraint order or at any time afterwards).

(2)The Crown Court may by order appoint a receiver in respect of any realisable property to which the restraint order applies.

Commencement Information

I43S. 48 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

49 PowersE+W

(1)If the court appoints a receiver under section 48 it may act under this section on the application of the person who applied for the restraint order.

(2)The court may by order confer on the receiver the following powers in relation to any realisable property to which the restraint order applies—

(a)power to take possession of the property;

(b)power to manage or otherwise deal with the property;

(c)power to start, carry on or defend any legal proceedings in respect of the property;

(d)power to realise so much of the property as is necessary to meet the receiver’s remuneration and expenses.

(3)The court may by order confer on the receiver power to enter any premises in England and Wales and to do any of the following—

(a)search for or inspect anything authorised by the court;

(b)make or obtain a copy, photograph or other record of anything so authorised;

(c)remove anything which the receiver is required or authorised to take possession of in pursuance of an order of the court.

(4)The court may by order authorise the receiver to do any of the following for the purpose of the exercise of his functions—

(a)hold property;

(b)enter into contracts;

(c)sue and be sued;

(d)employ agents;

(e)execute powers of attorney, deeds or other instruments;

(f)take any other steps the court thinks appropriate.

(5)The court may order any person who has possession of realisable property to which the restraint order applies to give possession of it to the receiver.

(6)The court—

(a)may order a person holding an interest in realisable property to which the restraint order applies to make to the receiver such payment as the court specifies in respect of a beneficial interest held by the defendant or the recipient of a tainted gift;

(b)may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

(7)Subsections (2), (5) and (6) do not apply to property for the time being subject to a charge under any of these provisions—

(a)section 9 of the Drug Trafficking Offences Act 1986 (c. 32);

(b)section 78 of the Criminal Justice Act 1988 (c. 33);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));

(d)section 27 of the Drug Trafficking Act 1994 (c. 37);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

(8)The court must not—

(a)confer the power mentioned in subsection (2)(b) or (d) in respect of property, or

(b)exercise the power conferred on it by subsection (6) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

[F254(8A)Subsection (8), so far as relating to the power mentioned in subsection (2)(b), does not apply to property which—

(a)is perishable; or

(b)ought to be disposed of before its value diminishes.]

(9)The court may order that a power conferred by an order under this section is subject to such conditions and exceptions as it specifies.

(10)Managing or otherwise dealing with property includes—

(a)selling the property or any part of it or interest in it;

(b)carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

(c)incurring capital expenditure in respect of the property.

Textual Amendments

Modifications etc. (not altering text)

Commencement Information

I44S. 49 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

Enforcement receiversE+W

50 AppointmentE+W

(1)This section applies if—

(a)a confiscation order is made,

(b)it is not satisfied, and

(c)it is not subject to appeal.

(2)On the application of the prosecutor the Crown Court may by order appoint a receiver in respect of realisable property.

Commencement Information

I45S. 50 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

51 PowersE+W

(1)If the court appoints a receiver under section 50 it may act under this section on the application of the prosecutor.

(2)The court may by order confer on the receiver the following powers in relation to the realisable property—

(a)power to take possession of the property;

(b)power to manage or otherwise deal with the property;

(c)power to realise the property, in such manner as the court may specify;

(d)power to start, carry on or defend any legal proceedings in respect of the property.

[F255(e)so far as the property consists of cryptoassets, power to destroy the property.]

(3)The court may by order confer on the receiver power to enter any premises in England and Wales and to do any of the following—

(a)search for or inspect anything authorised by the court;

(b)make or obtain a copy, photograph or other record of anything so authorised;

(c)remove anything which the receiver is required or authorised to take possession of in pursuance of an order of the court.

(4)The court may by order authorise the receiver to do any of the following for the purpose of the exercise of his functions—

(a)hold property;

(b)enter into contracts;

(c)sue and be sued;

(d)employ agents;

(e)execute powers of attorney, deeds or other instruments;

(f)take any other steps the court thinks appropriate.

(5)The court may order any person who has possession of realisable property to give possession of it to the receiver.

(6)The court—

(a)may order a person holding an interest in realisable property to make to the receiver such payment as the court specifies in respect of a beneficial interest held by the defendant or the recipient of a tainted gift;

(b)may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

(7)Subsections (2), (5) and (6) do not apply to property for the time being subject to a charge under any of these provisions—

(a)section 9 of the Drug Trafficking Offences Act 1986 (c. 32);

(b)section 78 of the Criminal Justice Act 1988 (c. 33);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));

(d)section 27 of the Drug Trafficking Act 1994 (c. 37);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

(8)The court must not—

(a)confer the power mentioned in subsection (2)(b) [F256, (c) or (e)] in respect of property, or

(b)exercise the power conferred on it by subsection (6) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

[F257(8A)Subsection (8), so far as relating to the power mentioned in subsection (2)(b), does not apply to property which—

(a)is perishable; or

(b)ought to be disposed of before its value diminishes.]

[F258(8B)Representations that a person is entitled to make by virtue of subsection (8) do not include representations that are inconsistent with a determination made under section 10A, unless—

(a)the person was not given a reasonable opportunity to make representations when the determination was made and has not appealed against the determination, or

(b)it appears to the court that there would be a serious risk of injustice to the person if the court was bound by the determination;

and the determination does not bind the court if paragraph (a) or (b) applies.]

(9)The court may order that a power conferred by an order under this section is subject to such conditions and exceptions as it specifies.

[F259(9A)The court may confer the power mentioned in subsection (2)(e) only where—

(a)it is not reasonably practicable to realise the cryptoassets in question, or

(b)there are reasonable grounds to believe that the realisation of the cryptoassets would be contrary to the public interest, having regard in particular to how likely it is that the entry of the cryptoassets into general circulation would facilitate criminal conduct by any person.

(9B)An order conferring that power—

(a)must set out the court’s assessment of the market value of the cryptoassets to which it relates;

(b)may confer power to destroy the cryptoassets only to the extent that their market value, as set out in the order, is less than or equal to the amount remaining to be paid under the confiscation order.

(9C)If the receiver destroys any cryptoassets in the exercise of that power, the defendant is to be treated as having paid, towards satisfaction of the confiscation order, an amount equal to the market value, as set out in the order, of the cryptoassets which have been destroyed.]

(10)Managing or otherwise dealing with property includes—

(a)selling the property or any part of it or interest in it;

(b)carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

(c)incurring capital expenditure in respect of the property.

Textual Amendments

F255S. 51(2)(e) inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 10(2); S.I. 2024/269, reg. 4(a)

F256Words in s. 51(8)(a) substituted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 10(3); S.I. 2024/269, reg. 4(a)

F259S. 51(9A)-(9C) inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 10(4); S.I. 2024/269, reg. 4(a)

Modifications etc. (not altering text)

Commencement Information

I46S. 51 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

Director’s receiversE+W

F26052 AppointmentE+W

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

Textual Amendments

F26153 PowersE+W

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

Textual Amendments

Application of sumsE+W

54 Enforcement receiversE+W

(1)This section applies to sums which are in the hands of a receiver appointed under section 50 if they are—

(a)the proceeds of the realisation of property under section 51;

(b)sums (other than those mentioned in paragraph (a)) in which the defendant holds an interest.

(2)The sums must be applied as follows—

(a)first, they must be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under this subsection by virtue of section 432;

(b)second, they must be applied in making any payments directed by the Crown Court;

(c)third, they must be applied on the defendant’s behalf towards satisfaction of the confiscation order.

(3)If the amount payable under the confiscation order has been fully paid and any sums remain in the receiver’s hands he must distribute them—

(a)among such persons who held (or hold) interests in the property concerned as the Crown Court directs, and

(b)in such proportions as it directs.

(4)Before making a direction under subsection (3) the court must give persons who held (or hold) interests in the property concerned a reasonable opportunity to make representations to it.

(5)For the purposes of subsections (3) and (4) the property concerned is—

(a)the property represented by the proceeds mentioned in subsection (1)(a);

(b)the sums mentioned in subsection (1)(b).

(6)The receiver applies sums as mentioned in subsection (2)(c) by paying them to the appropriate [F262designated officer] on account of the amount payable under the order.

(7)The appropriate [F262designated officer] is the one for the magistrates’ court responsible for enforcing the confiscation order as if the amount ordered to be paid were a fine.

Textual Amendments

F262Words in s. 54(6)(7) substituted (1.4.2005) by Courts Act 2003 (c. 39), s. 110(1), Sch. 8 para. 407; S.I. 2005/910, art. 3(y)

Commencement Information

I47S. 54 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

55 Sums received by [F263designated officer]E+W

(1)This section applies if a [F263designated officer] receives sums on account of the amount payable under a confiscation order (whether the sums are received under section 54 or otherwise).

(2)The [F264designated officer's] receipt of the sums reduces the amount payable under the order, but he must apply the sums received as follows.

(3)First he must apply them in payment of such expenses incurred by a person acting as an insolvency practitioner as—

(a)are payable under this subsection by virtue of section 432, but

(b)are not already paid under section 54(2)(a) [F265 or 67D(2)(a)] .

(4)If the [F263designated officer] received the sums under section 54 [F266 or 67D] he must next apply them—

(a)first, in payment of the remuneration and expenses of a receiver appointed under section 48, to the extent that they have not been met by virtue of the exercise by that receiver of a power conferred under section 49(2)(d);

(b)second, in payment of the remuneration and expenses of [F267any receiver] appointed under section 50.

[F268(c)third, in payment to an appropriate officer of any amount to which the officer is entitled by virtue of section 67B.]

(5)If a direction was made under section 13(6) for [F269an amount payable under a priority order (or orders)] to be paid out of sums recovered under the confiscation order, the [F263designated officer] must next apply the sums in payment of that amount.

(6)If any amount remains after the [F263designated officer] makes any payments required by the preceding provisions of this section, the amount must be treated for the purposes of [F270section 38 of the Courts Act 2003] (application of fines etc) as if it were a fine imposed by a magistrates’ court.

[F271(7)Subsection (4) does not apply in relation to the remuneration of a receiver if the receiver is a person falling within subsection (8).

(8)The following fall within this subsection—

(a)a constable,

[F272(aa)a member of a police and crime commissioner's staff (within the meaning of Part 1 of the Police Reform and Social Responsibility Act 2011),

(ab)a member of the staff of the Mayor's Office for Policing and Crime (within the meaning of that Part of that Act),

(ac)a member of the civilian staff of a police force, including the metropolitan police force, (within the meaning of that Part of that Act),]

(b)F273... a member of staff of the City of London police force,

(c)an accredited financial investigator,

(d)a member of staff of the Crown Prosecution Service,

(e)a member of staff of the Serious Fraud Office,

F274(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(g)a member of staff of the Commissioners for Her Majesty's Revenue and Customs,

[F275(h)a National Crime Agency officer,]

(i)a member of staff of any government department not mentioned above.

(9)It is immaterial for the purposes of subsection (7) whether a person falls within subsection (8) by virtue of a permanent or temporary appointment or a secondment from elsewhere.

(10)The reference in subsection (8) to an accredited financial investigator is a reference to an accredited financial investigator who falls within a description specified in an order made for the purposes of that subsection by the Secretary of State under section 453.]

Textual Amendments

F267Words in s. 55(4)(b) substituted (1.6.2015) by Policing and Crime Act 2009 (c. 26), ss. 58(5)(b), 116(1); S.I. 2015/983, art. 2(2)(a)

F271S. 55(7)-(10) substituted for s. 55(7) (25.1.2010) by Policing and Crime Act 2009 (c. 26), ss. 51(2), 116(1); S.I. 2009/3096, art. 3(f)

Modifications etc. (not altering text)

Commencement Information

I48S. 55 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

F27656 Director’s receiversE+W

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

Textual Amendments

F27757 Sums received by DirectorE+W

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

Textual Amendments

RestrictionsE+W

58 Restraint ordersE+W

(1)Subsections (2) to (4) apply if a court makes a restraint order.

(2)No distress may be levied [F278, and no power to use the procedure in Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 (taking control of goods) may be exercised,] against any realisable property to which the order applies except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

(3)If the order applies to a tenancy of any premises, no landlord or other person to whom rent is payable may exercise a right within subsection (4) except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

(4)A right is within this subsection if it is a right of forfeiture by peaceable re-entry in relation to the premises in respect of any failure by the tenant to comply with any term or condition of the tenancy.

(5)If a court in which proceedings are pending in respect of any property is satisfied that a restraint order has been applied for or made in respect of the property, the court may either stay the proceedings or allow them to continue on any terms it thinks fit.

(6)Before exercising any power conferred by subsection (5), the court must give an opportunity to be heard to—

(a)the applicant for the restraint order, and

(b)any receiver appointed in respect of the property under section 48[F279or 50].

Textual Amendments

F279Words in s. 58(6)(b) substituted (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 26; S.I. 2008/755, art. 2(1)(a) (with arts. 3-14)

Commencement Information

I49S. 58 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

59 Enforcement receiversE+W

(1)Subsections (2) to (4) apply if a court makes an order under section 50 appointing a receiver in respect of any realisable property.

(2)No distress may be levied [F280, and no power to use the procedure in Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 (taking control of goods) may be exercised,] against the property except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

(3)If the receiver is appointed in respect of a tenancy of any premises, no landlord or other person to whom rent is payable may exercise a right within subsection (4) except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

(4)A right is within this subsection if it is a right of forfeiture by peaceable re-entry in relation to the premises in respect of any failure by the tenant to comply with any term or condition of the tenancy.

(5)If a court in which proceedings are pending in respect of any property is satisfied that an order under section 50 appointing a receiver in respect of the property has been applied for or made, the court may either stay the proceedings or allow them to continue on any terms it thinks fit.

(6)Before exercising any power conferred by subsection (5), the court must give an opportunity to be heard to—

(a)the prosecutor, and

(b)the receiver (if the order under section 50 has been made).

Textual Amendments

Commencement Information

I50S. 59 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

F28160 Director’s receiversE+W

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

Textual Amendments

Receivers: further provisionsE+W

61 ProtectionE+W

If a receiver appointed under section 48[F282or 50]—

(a)takes action in relation to property which is not realisable property,

(b)would be entitled to take the action if it were realisable property, and

(c)believes on reasonable grounds that he is entitled to take the action,

he is not liable to any person in respect of any loss or damage resulting from the action, except so far as the loss or damage is caused by his negligence.

Textual Amendments

Commencement Information

I51S. 61 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

62 Further applicationsE+W

(1)This section applies to a receiver appointed under section 48[F283or 50].

(2)The receiver may apply to the Crown Court for an order giving directions as to the exercise of his powers.

(3)The following persons may apply to the Crown Court—

(a)any person affected by action taken by the receiver;

(b)any person who may be affected by action the receiver proposes to take.

(4)On an application under this section the court may make such order as it believes is appropriate.

Textual Amendments

Commencement Information

I52S. 62 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

63 Discharge and variationE+W

(1)The following persons may apply to the Crown Court to vary or discharge an order made under any of sections 48 [F284to 51 ]—

(a)the receiver;

(b)the person who applied for the order F285...;

(c)any person affected by the order.

(2)On an application under this section the court—

(a)may discharge the order;

(b)may vary the order.

(3)But in the case of an order under section 48 or 49—

(a)if the condition in section 40 which was satisfied was that proceedings were started or an application was made, the court must discharge the order on the conclusion of the proceedings or of the application (as the case may be);

(b)if the condition which was satisfied was that an investigation was started or an application was to be made, the court must discharge the order if within a reasonable time proceedings for the offence are not started or the application is not made (as the case may be).

Textual Amendments

Commencement Information

I53S. 63 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

64 Management receivers: dischargeE+W

(1)This section applies if—

(a)a receiver stands appointed under section 48 in respect of realisable property (the management receiver), and

(b)the court appoints a receiver under section 50 F286....

(2)The court must order the management receiver to transfer to the other receiver all property held by the management receiver by virtue of the powers conferred on him by section 49.

F287(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)Subsection (2) does not apply to property which the management receiver holds by virtue of the exercise by him of his power under section 49(2)(d).

(5)If the management receiver complies with an order under subsection (2) he is discharged—

(a)from his appointment under section 48;

(b)from any obligation under this Act arising from his appointment.

(6)If this section applies the court may make such a consequential or incidental order as it believes is appropriate.

Textual Amendments

Commencement Information

I54S. 64 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

65 Appeal to Court of AppealE+W

(1)If on an application for an order under any of sections 48 to 51 F288... the court decides not to make one, the person who applied for the order may appeal to the Court of Appeal against the decision.

(2)If the court makes an order under any of sections 48 to 51 F289..., the following persons may appeal to the Court of Appeal in respect of the court’s decision—

(a)the person who applied for the order;

(b)any person affected by the order.

(3)If on an application for an order under section 62 the court decides not to make one, the person who applied for the order may appeal to the Court of Appeal against the decision.

(4)If the court makes an order under section 62, the following persons may appeal to the Court of Appeal in respect of the court’s decision—

(a)the person who applied for the order;

(b)any person affected by the order;

(c)the receiver.

(5)The following persons may appeal to the Court of Appeal against a decision of the court on an application under section 63—

(a)the person who applied for the order in respect of which the application was made F290...;

(b)any person affected by the court’s decision;

(c)the receiver.

(6)On an appeal under this section the Court of Appeal may—

(a)confirm the decision, or

(b)make such order as it believes is appropriate.

Textual Amendments

Commencement Information

I55S. 65 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

66 Appeal to [F291Supreme Court]E+W

(1)An appeal lies to the [F292Supreme Court] from a decision of the Court of Appeal on an appeal under section 65.

(2)An appeal under this section lies at the instance of any person who was a party to the proceedings before the Court of Appeal.

(3)On an appeal under this section the [F293Supreme Court] may—

(a)confirm the decision of the Court of Appeal, or

(b)make such order as it believes is appropriate.

Textual Amendments

Commencement Information

I56S. 66 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

[F294Enforcement: money, cryptoassets and personal property] E+W

Textual Amendments

F294S. 67 cross-heading substituted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 16; S.I. 2024/269, reg. 4(a)

67 [F295Money]E+W

(1)This section applies to money which—

(a)is held by a person, and

(b)is held in an account maintained by him with a [F296relevant financial institution].

(2)This section also applies to money which is held by a person and which—

[F297(a)has been seized under a relevant seizure power by a constable or another person lawfully exercising the power, and

(b)is being detained in connection with a criminal investigation or prosecution or with an investigation of a kind mentioned in section 341.]

[F298(2A)But this section applies to money only so far as the money is free property.]

F299(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F300(5)If—

(a)a confiscation order is made against a person holding money to which this section applies, and

(b)a receiver has not been appointed under section 50 in relation to the money,

a magistrates' court may order the [F301appropriate person] to pay the money to the designated officer for the court on account of the amount payable under the confiscation order.]

[F302(5A)[F303Where this section applies to money which is held in an account maintained with [F304a relevant financial institution],] a person applying for an order under subsection (5) must give notice of the application to [F305the relevant financial institution] with which the account is held.

(5B)In the case of money held in an account not maintained by the person against whom the confiscation order is made, a magistrates' court—

(a)may make an order under subsection (5) only if the extent of the person's interest in the money has been determined under section 10A, and

(b)must have regard to that determination in deciding what is the appropriate order to make.]

(6)If a [F306relevant financial institution] fails to comply with an order under subsection (5)—

(a)the magistrates’ court may order it to pay an amount not exceeding £5,000, and

(b)for the purposes of the Magistrates’ Courts Act 1980 (c. 43) the sum is to be treated as adjudged to be paid by a conviction of the court.

(7)In order to take account of changes in the value of money the Secretary of State may by order substitute another sum for the sum for the time being specified in subsection (6)(a).

[F307(7A)The Secretary of State may by order amend this section so that it applies [F308by virtue of subsection (1)] not only to money held in an account maintained with a [F309relevant financial institution] but also to—

(a)money held in an account maintained with a financial institution of a specified kind, or

(b)money that is represented by, or may be obtained from, a financial instrument or product of a specified kind.

(7B)An order under subsection (7A) may amend this section so that it makes provision about realising an instrument or product within subsection (7A)(b) or otherwise obtaining money from it.]

[F310(8)In this section—

  • “appropriate person” means—

    (a)

    in a case where the money is held in an account maintained with a [F311a relevant financial institution, the relevant financial institution];

    (b)

    in any other case, the person on whose authority the money is detained;

  • “bank” means an authorised deposit-taker, other than a building society, that has its head office or a branch in the United Kingdom;

  • “building society” has the same meaning as in the Building Societies Act 1986;

  • [F312“electronic money institution” has the same meaning as in the Electronic Money Regulations 2011 (S.I. 2011/99) (see regulation 2 of those Regulations);]

  • [F312“payment institution” means an authorised payment institution or a small payment institution (each as defined in regulation 2 of the Payment Services Regulations 2017 (S.I. 2017/752));]

  • [F312“relevant financial institution” means a bank, a building society, an electronic money institution or a payment institution;]

  • “relevant seizure power” means a power to seize money conferred by or by virtue of—

    (a)

    a warrant granted under any enactment or rule of law, or

    (b)

    any enactment, or rule of law, under which the authority of a warrant is not required.]

[F313(9)In the definition of “bank” in subsection (8), “authorised deposit-taker” means—

(a)a person who has permission under Part 4A of the Financial Services and Markets Act 2000 to accept deposits;

(b)a person who—

(i)is specified, or is within a class of persons specified, by an order under section 38 of that Act (exemption orders), and

(ii)accepts deposits;

F314(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10)A reference in subsection (9) to a person F315... with permission to accept deposits does not include a person F315... with permission to do so only for the purposes of, or in the course of, an activity other than accepting deposits.]

Textual Amendments

F295S. 67 heading substituted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 11(7); S.I. 2024/269, reg. 4(a)

F296Words in s. 67(1)(b) substituted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 11(2); S.I. 2024/269, reg. 4(a)

F297S. 67(2)(a)(b) substituted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 26(2), 58(1)(6); S.I. 2018/78, reg. 3(k)

F298S. 67(2A) inserted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 26(3), 58(1)(6); S.I. 2018/78, reg. 3(k)

F299S. 67(3) omitted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by virtue of Criminal Finances Act 2017 (c. 22), ss. 26(4), 58(1)(6); S.I. 2018/78, reg. 3(k)

F300S. 67(5) substituted for s. 67(4)(5) (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 14(1), 88(1); S.I. 2015/820, reg. 3(j)

F301Words in s. 67(5) substituted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 26(5), 58(1)(6); S.I. 2018/78, reg. 3(k)

F303Words in s. 67(5A) inserted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 26(6), 58(1)(6); S.I. 2018/78, reg. 3(k)

F304Words in s. 67(5A) substituted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 11(3)(a); S.I. 2024/269, reg. 4(a)

F305Words in s. 67(5A) substituted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 11(3)(b); S.I. 2024/269, reg. 4(a)

F306Words in s. 67(6) substituted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 11(4); S.I. 2024/269, reg. 4(a)

F308Words in s. 67(7A) inserted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 26(7), 58(1)(6); S.I. 2018/78, reg. 3(k)

F309Words in s. 67(7A) substituted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 11(5); S.I. 2024/269, reg. 4(a)

F310S. 67(8) substituted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 26(8), 58(1)(6); S.I. 2018/78, reg. 3(k)

F311Words in s. 67(8) substituted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 11(6)(a); S.I. 2024/269, reg. 4(a)

F312Words in s. 67(8) inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 11(6)(b); S.I. 2024/269, reg. 4(a)

F313S. 67(9)(10) inserted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 26(9), 58(1)(6); S.I. 2018/78, reg. 3(k)

Commencement Information

I57S. 67 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

[F31667ZACryptoassetsE+W

(1)This section applies to cryptoassets which—

(a)are held by a person, and

(b)are held in a crypto wallet administered by a UK-connected cryptoasset service provider,

but only so far as the cryptoassets are free property.

(2)Subsection (3) applies if—

(a)a confiscation order is made against a person holding cryptoassets to which this section applies, and

(b)a receiver has not been appointed under section 50 in relation to the cryptoassets.

(3)A magistrates’ court may order the UK-connected cryptoasset service provider which administers the crypto wallet in which the cryptoassets are held—

(a)to realise the cryptoassets, or a portion of the cryptoassets having a specified value,

(b)to pay the proceeds of that realisation to the designated officer for the court on account of, and up to a maximum of, the amount payable under the confiscation order, and

(c)to the extent that the proceeds of the realisation exceed the amount payable under the confiscation order, to pay the excess to an appropriate officer identified in the order.

“Appropriate officer” has the same meaning as in section 41A.

(4)A person applying for an order under subsection (3) must give notice of the application to the UK-connected cryptoasset service provider.

(5)Where the crypto wallet in which the cryptoassets are held is administered on behalf of someone other than the person against whom the confiscation order is made, a magistrates’ court—

(a)may make an order under subsection (3) only if the extent of the person’s interest in the money has been determined under section 10A, and

(b)must have regard to that determination in deciding what is the appropriate order to make.

(6)If a UK-connected cryptoasset service provider fails to comply with an order under subsection (3)—

(a)the magistrates’ court may order it to pay an amount not exceeding £5,000, and

(b)for the purposes of the Magistrates’ Courts Act 1980 the sum is to be treated as adjudged to be paid by a conviction of the court.

(7)In order to take account of changes in the value of money the Secretary of State may by order substitute another sum for the sum for the time being specified in subsection (6)(a).

(8)Where a UK-connected cryptoasset service provider—

(a)is required by an order under subsection (3) to realise a portion of cryptoassets having a specified value, but

(b)on realising cryptoassets under the order, obtains proceeds of an amount which differs from that value,

it does not fail to comply with the order solely because of that difference in value, provided that it took reasonable steps to obtain proceeds equal to the value specified.

Textual Amendments

F316Ss. 67ZA, 67ZB inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 12; S.I. 2024/269, reg. 4(a)

67ZBMeaning of “UK-connected cryptoasset service provider”E+W

(1)“UK-connected cryptoasset service provider” in section 67ZA means a cryptoasset service provider which—

(a)is acting in the course of business carried on by it in the United Kingdom,

(b)has terms and conditions with the persons to whom it provides services which provide for a legal dispute to be litigated in the courts of a part of the United Kingdom,

(c)holds in the United Kingdom any data relating to the persons to whom it provides services, or

(d)meets the condition in subsection (2).

(2)The condition in this subsection is that—

(a)the cryptoasset service provider has its registered office or, if it does not have one, its head office in the United Kingdom, and

(b)the day-to-day management of the provider’s business is the responsibility of that office or another establishment maintained by it in the United Kingdom.

(3)“Cryptoasset service provider” in subsections (1) and (2) includes a cryptoasset exchange provider and a custodian wallet provider; and for this purpose—

  • “cryptoasset exchange provider” means a firm or sole practitioner who by way of business provides one or more of the following services, including where the firm or sole practitioner does so as creator or issuer of any of the cryptoassets involved—

    (a)

    exchanging, or arranging or making arrangements with a view to the exchange of, cryptoassets for money or money for cryptoassets;

    (b)

    exchanging, or arranging or making arrangements with a view to the exchange of, one cryptoasset for another;

    (c)

    operating a machine which utilises automated processes to exchange cryptoassets for money or money for cryptoassets;

  • “custodian wallet provider” means a firm or sole practitioner who by way of business provides services to safeguard, or to safeguard and administer—

    (a)

    cryptoassets on behalf of its customers, or

    (b)

    private cryptographic keys on behalf of its customers in order to hold, store and transfer cryptoassets.

(4)In the definition of “cryptoasset exchange provider” in subsection (3), “cryptoasset” includes a right to, or interest in, a cryptoasset.

(5)The Secretary of State may by regulations amend the definitions in subsection (3) (including by amending subsection (4)).]

Textual Amendments

F316Ss. 67ZA, 67ZB inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 12; S.I. 2024/269, reg. 4(a)

[F31767ASeized personal propertyE+W

(1)This section applies to personal property which is held by a person and which—

(a)has been seized by an appropriate officer under a relevant seizure power, or

(b)has been produced to an appropriate officer in compliance with a production order under section 345.

[F318(3)If—

(a)a confiscation order is made against the person by whom the property is held, and

(b)a receiver has not been appointed under section 50 in relation to the property,

a magistrates' court may by order authorise an appropriate officer to realise the property.]

(4)In this section “appropriate officer” and “relevant seizure power” have the same meaning as in section 41A.

Textual Amendments

F318S. 67A(3) substituted for s. 67A(2)(3) (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 14(4), 88(1); S.I. 2015/820, reg. 3(j)

[F31967AADestruction of seized cryptoassetsE+W

(1)This section applies to cryptoassets which are held by a person and which have been seized by an appropriate officer under a relevant seizure power.

(2)A magistrates’ court may by order authorise an appropriate officer to destroy the cryptoassets if—

(a)a confiscation order is made against the person by whom the cryptoassets are held,

(b)a receiver has not been appointed under section 50 in relation to the cryptoassets, and

(c)either—

(i)it is not reasonably practicable to realise the cryptoassets, or

(ii)there are reasonable grounds to believe that the realisation of the cryptoassets would be contrary to the public interest, having regard in particular to how likely it is that the entry of the cryptoassets into general circulation would facilitate criminal conduct by any person.

(3)An order under this section—

(a)must set out the court’s assessment of the market value of the cryptoassets to which it relates;

(b)may authorise the destruction of cryptoassets only to the extent that their market value, as set out in the order, is less than or equal to the amount remaining to be paid under the confiscation order.

(4)Before making an order under this section, the court must give persons who hold interests in the cryptoassets a reasonable opportunity to make representations to it.

(5)If cryptoassets held by a person are destroyed following an order under this section, the person is to be treated as having paid, towards satisfaction of the confiscation order, an amount equal to the market value, as set out in the order, of the cryptoassets which have been destroyed.

(6)In this section “appropriate officer” and “relevant seizure power” have the same meaning as in section 41A.]

Textual Amendments

F319S. 67AA inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 13; S.I. 2024/269, reg. 4(a)

67BCosts of storage and realisationE+W

(1)This section applies if a magistrates' court makes an order under section 67A.

(2)The court may determine an amount which may be recovered by the appropriate officer in respect of reasonable costs incurred in—

(a)storing or insuring the property since it was seized or produced as mentioned in subsection (1) of that section;

(b)realising the property.

(3)If the court makes a determination under this section the appropriate officer is entitled to payment of the amount under section 55(4).

(4)A determination under this section may be made on the same occasion as the section 67A order or on any later occasion; and more than one determination may be made in relation to any case.

(5)In this section “appropriate officer” has the same meaning as in section 41A.

Textual Amendments

67CSections [F32067ZA to] 67B: appealsE+W

(1)If a magistrates' court decides not to make an order under section [F32167ZA(3), 67A(3) or 67AA(2)], an appropriate officer may appeal to the Crown Court.

(2)If a magistrates' court makes an order under section [F32267ZA(3), 67A(3) or 67AA(2)], a person affected by the order may appeal to the Crown Court.

(3)But the person mentioned in section [F32367ZA(2)(a), 67A(3)(a) or 67AA(2)(a) (as applicable)] may not appeal.

(4)An appropriate officer may appeal to the Crown Court against—

(a)a determination made by a magistrates' court under section 67B;

(b)a decision by a magistrates' court not to make a determination under that section.

(5)In this section “appropriate officer” has the same meaning as in section 41A.

Textual Amendments

F320Words in s. 67C heading substituted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 14(5); S.I. 2024/269, reg. 4(a)

F321Words in s. 67C(1) substituted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 14(2); S.I. 2024/269, reg. 4(a)

F322Words in s. 67C(2) substituted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 14(3); S.I. 2024/269, reg. 4(a)

F323Words in s. 67C(3) substituted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 14(4); S.I. 2024/269, reg. 4(a)

67DProceeds of realisationE+W

(1)This section applies to sums which—

(a)are in the hands of an appropriate officer, and

(b)are the proceeds of the realisation of property under section [F32467ZA or] 67A.

(2)The sums must be applied as follows—

(a)first, they must be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under this subsection by virtue of section 432;

(b)second, they must be applied in making any payments directed by the magistrates' court or the Crown Court;

(c)third, they must be paid to the appropriate designated officer on account of the amount payable under the confiscation order.

(3)If the amount payable under the confiscation order has been fully paid and any sums remain in the appropriate officer's hands, the appropriate officer must distribute them—

(a)among such persons who held (or hold) interests in the property represented by the proceeds as the magistrates' court or the Crown Court directs, and

(b)in such proportions as it directs.

(4)Before making a direction under subsection (3) the court must give persons who held (or hold) interests in the property a reasonable opportunity to make representations to it.

(5)If the magistrates' court has made a direction under subsection (2)(b) or (3) in respect of the proceeds of realisation of any property, the Crown Court may not make a direction under either of those provisions in respect of the proceeds of realisation of that property; and vice versa.

(6)In this section—

  • “appropriate officer” has the same meaning as in section 41A;

  • “appropriate designated officer” means the designated officer for the magistrates' court which, by virtue of section 35, is responsible for enforcing the confiscation order as if it were a fine.]

Textual Amendments

F324Words in s. 67D(1)(b) inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 15; S.I. 2024/269, reg. 4(a)

Financial investigatorsE+W

68 Applications and appealsE+W

(1)Subsections (2) and (3) apply to—

(a)an application under section 41, 42, 48, 49 or 63;

(b)an appeal under section 43, 44, 65 or 66.

(2)An accredited financial investigator must not make such an application or bring such an appeal unless he falls within subsection (3).

(3)An accredited financial investigator falls within this subsection if he is one of the following or is authorised for the purposes of this section by one of the following—

(a)a police officer who is not below the rank of superintendent,

(b)a customs officer who is not below such grade as is designated by the Commissioners of Customs and Excise as equivalent to that rank,

(c)an accredited financial investigator who falls within a description specified in an order made for the purposes of this paragraph by the Secretary of State [F325or the Welsh Ministers] under section 453.

(4)If such an application is made or appeal brought by an accredited financial investigator any subsequent step in the application or appeal or any further application or appeal relating to the same matter may be taken, made or brought by a different accredited financial investigator who falls within subsection (3).

(5)If—

(a)an application for a restraint order is made by an accredited financial investigator, and

(b)a court is required under section 58(6) to give the applicant for the order an opportunity to be heard,

the court may give the opportunity to a different accredited financial investigator who falls within subsection (3).

Textual Amendments

Modifications etc. (not altering text)

Commencement Information

I58S. 68 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

Exercise of powersE+W

69 Powers of court and receiver [F326etc.] E+W

(1)This section applies to—

(a)the powers conferred on a court by sections 41 to [F32759 ] and sections 62 to [F32867D] ;

(b)the powers of a receiver appointed under section 48[F329or 50].

[F330(c)the powers conferred on appropriate officers by sections 47C to 47L;

(d)the powers conferred on senior officers by section 47G.]

(2)The powers—

(a)must be exercised with a view to the value for the time being of realisable property being made available (by the property’s realisation) for satisfying any confiscation order that has been or may be made against the defendant;

(b)must be exercised, in a case where a confiscation order has not been made, with a view to securing that there is no diminution in the value of realisable property;

(c)must be exercised without taking account of any obligation of the defendant or a recipient of a tainted gift if the obligation conflicts with the object of satisfying any confiscation order that has been or may be made against the defendant;

(d)may be exercised in respect of a debt owed by the Crown.

[F331(2A)Subsection (2)(a) does not apply to—

(a)the power conferred on a court by paragraph (e) of section 51(2) (which enables the court to give a receiver the power to destroy cryptoassets),

(b)a power conferred on a receiver by virtue of that paragraph, or

(c)the power conferred on a magistrates’ court by section 67AA (power to order destruction of cryptoassets).]

(3)Subsection (2) has effect subject to the following rules—

(a)the powers must be exercised with a view to allowing a person other than the defendant or a recipient of a tainted gift to retain or recover the value of any interest held by him;

(b)in the case of realisable property held by a recipient of a tainted gift, the powers must be exercised with a view to realising no more than the value for the time being of the gift;

(c)in a case where a confiscation order has not been made against the defendant, property must not be sold if the court so orders under subsection (4).

(4)If on an application by the defendant, or by the recipient of a tainted gift, the court decides that property cannot be replaced it may order that it must not be sold.

(5)An order under subsection (4) may be revoked or varied.

Textual Amendments

F331S. 69(2A) inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 17; S.I. 2024/269, reg. 4(a)

Commencement Information

I59S. 69 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

CommittalE+W

70 Committal by magistrates’ courtE+W

(1)This section applies if—

(a)a defendant is convicted of an offence by a magistrates’ court, and

(b)the prosecutor asks the court to commit the defendant to the Crown Court with a view to a confiscation order being considered under section 6.

(2)In such a case the magistrates’ court—

(a)must commit the defendant to the Crown Court in respect of the offence, and

(b)may commit him to the Crown Court in respect of any other offence falling within subsection (3).

(3)An offence falls within this subsection if—

(a)the defendant has been convicted of it by the magistrates’ court or any other court, and

(b)the magistrates’ court has power to deal with him in respect of it.

(4)If a committal is made under this section in respect of an offence or offences—

(a)section 6 applies accordingly, and

(b)the committal operates as a committal of the defendant to be dealt with by the Crown Court in accordance with section 71.

(5)If a committal is made under this section in respect of an offence for which (apart from this section) the magistrates’ court could have committed the defendant for sentence under [F332section 14(2) of the Sentencing Code] (offences triable either way) [F333or under [F334section 16(2) [F335or 16A(2)] of that Code] (committal of child or young person)] the court must state whether it would have done so.

(6)A committal under this section may be in custody or on bail.

Textual Amendments

F333Words in s. 70(5) inserted (18.6.2012 for specified purposes, 5.11.2012 for specified purposes, 28.5.2013 for specified purposes) by Criminal Justice Act 2003 (c. 44), s. 336(3)(4), Sch. 3 para. 75(4); S.I. 2012/1320, art. 4(1)(c)(2)(3) (with art. 5) (see S.I. 2012/2574, art. 4(2) and S.I. 2013/1103, art. 4); S.I. 2012/2574, art. 2(2)(3)(c), Sch. (with arts. 3, 4) (as amended (4.11.2012) by S.I. 2012/2761, art. 2) (with S.I. 2013/1103, art. 4); S.I. 2013/1103, art. 2(1)(c)(2)(3) (with arts. 3, 4)

Commencement Information

I60S. 70 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

71 Sentencing by Crown CourtE+W

(1)If a defendant is committed to the Crown Court under section 70 in respect of an offence or offences, this section applies (whether or not the court proceeds under section 6).

(2)In the case of an offence in respect of which the magistrates’ court has stated under section 70(5) that it would have committed the defendant for sentence, the Crown Court—

(a)must inquire into the circumstances of the case, and

(b)may deal with the defendant in any way in which it could deal with him if he had just been convicted of the offence on indictment before it.

(3)In the case of any other offence the Crown Court—

(a)must inquire into the circumstances of the case, and

(b)may deal with the defendant in any way in which the magistrates’ court could deal with him if it had just convicted him of the offence.

Commencement Information

I61S. 71 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

CompensationE+W

72 Serious defaultE+W

(1)If the following three conditions are satisfied the Crown Court may order the payment of such compensation as it believes is just.

(2)The first condition is satisfied if a criminal investigation has been started with regard to an offence and proceedings are not started for the offence.

(3)The first condition is also satisfied if proceedings for an offence are started against a person and—

(a)they do not result in his conviction for the offence, or

(b)he is convicted of the offence but the conviction is quashed or he is pardoned in respect of it.

(4)If subsection (2) applies the second condition is that—

(a)in the criminal investigation there has been a serious default by a person mentioned in subsection (9), and

(b)the investigation would not have continued if the default had not occurred.

(5)If subsection (3) applies the second condition is that—

(a)in the criminal investigation with regard to the offence or in its prosecution there has been a serious default by a person who is mentioned in subsection (9), and

(b)the proceedings would not have been started or continued if the default had not occurred.

(6)The third condition is that an application is made under this section by a person who held realisable property and has suffered loss in consequence of anything done in relation to it by or in pursuance of an order under this Part.

(7)The offence referred to in subsection (2) may be one of a number of offences with regard to which the investigation is started.

(8)The offence referred to in subsection (3) may be one of a number of offences for which the proceedings are started.

(9)Compensation under this section is payable to the applicant and—

(a)if the person in default was or was acting as a member of a police force, the compensation is payable out of the police fund from which the expenses of that force are met;

(b)if the person in default was a member of the Crown Prosecution Service or was acting on its behalf, the compensation is payable by the Director of Public Prosecutions;

[F336(ba)if the person in default was a [F337National Crime Agency officer], the compensation is payable by [F338the National Crime Agency];]

(c)if the person in default was a member of the Serious Fraud Office, the compensation is payable by the Director of that Office;

F339(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e)if the person in default was an officer of the Commissioners of Inland Revenue, the compensation is payable by those Commissioners.

[F340(ea)if the person in default was an immigration officer, the compensation is payable by the Secretary of State;]

[F341(f)if the person in default was an accredited financial investigator and none of paragraphs (a) to (e) apply, the compensation is payable in accordance with paragraph (a), (c) [F342, (da)] or (e) of section 302(7A) (as the case may require).]

Textual Amendments

F342Word in s. 72(9)(f) inserted (25.1.2018) by Tax Collection and Management (Wales) Act 2016 (anaw 6), ss. 186(1)(2), 194(2); S.I. 2018/33, art. 2(j)

Commencement Information

I62S. 72 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

73 Order varied or dischargedE+W

(1)This section applies if—

(a)the court varies a confiscation order under section 29 or discharges one under section 30, and

(b)an application is made to the Crown Court by a person who held realisable property and has suffered loss as a result of the making of the order.

(2)The court may order the payment of such compensation as it believes is just.

(3)Compensation under this section is payable—

(a)to the applicant;

(b)by the Lord Chancellor.

Commencement Information

I63S. 73 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

Enforcement abroadE+W

74 Enforcement abroadE+W

(1)This section applies if—

(a)any of the conditions in section 40 is satisfied,

(b)the prosecutor F343... believes that realisable property is situated in a country or territory outside the United Kingdom (the receiving country), and

(c)the prosecutor F344... sends a request for assistance to the Secretary of State with a view to it being forwarded under this section.

(2)In a case where no confiscation order has been made, a request for assistance is a request to the government of the receiving country to secure that any person is prohibited from dealing with realisable property.

(3)In a case where a confiscation order has been made and has not been satisfied, discharged or quashed, a request for assistance is a request to the government of the receiving country to secure that—

(a)any person is prohibited from dealing with realisable property;

(b)realisable property is realised and the proceeds are applied in accordance with the law of the receiving country.

(4)No request for assistance may be made for the purposes of this section in a case where a confiscation order has been made and has been satisfied, discharged or quashed.

(5)If the Secretary of State believes it is appropriate to do so he may forward the request for assistance to the government of the receiving country.

(6)If property is realised in pursuance of a request under subsection (3) the amount ordered to be paid under the confiscation order must be taken to be reduced by an amount equal to the proceeds of realisation.

(7)A certificate purporting to be issued by or on behalf of the requested government is admissible as evidence of the facts it states if it states—

(a)that property has been realised in pursuance of a request under subsection (3),

(b)the date of realisation, and

(c)the proceeds of realisation.

(8)If the proceeds of realisation made in pursuance of a request under subsection (3) are expressed in a currency other than sterling, they must be taken to be the sterling equivalent calculated in accordance with the rate of exchange prevailing at the end of the day of realisation.

Textual Amendments

Commencement Information

I64S. 74 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch. (with arts. 5, 10-13)

InterpretationE+W

75 Criminal lifestyleE+W

(1)A defendant has a criminal lifestyle if (and only if) the following condition is satisfied.

(2)The condition is that the offence (or any of the offences) concerned satisfies any of these tests—

(a)it is specified in Schedule 2;

(b)it constitutes conduct forming part of a course of criminal activity;

(c)it is an offence committed over a period of at least six months and the defendant has benefited from the conduct which constitutes the offence.

(3)Conduct forms part of a course of criminal activity if the defendant has benefited from the conduct and—

(a)in the proceedings in which he was convicted he was convicted of three or more other offences, each of three or more of them constituting conduct from which he has benefited, or

(b)in the period of six years ending with the day when those proceedings were started (or, if there is more than one such day, the earliest day) he was convicted on at least two separate occasions of an offence constituting conduct from which he has benefited.

(4)But an offence does not satisfy the test in subsection (2)(b) or (c) unless the defendant obtains relevant benefit of not less than £5000.

(5)Relevant benefit for the purposes of subsection (2)(b) is—

(a)benefit from conduct which constitutes the offence;

(b)benefit from any other conduct which forms part of the course of criminal activity and which constitutes an offence of which the defendant has been convicted;

(c)benefit from conduct which constitutes an offence which has been or will be taken into consideration by the court in sentencing the defendant for an offence mentioned in paragraph (a) or (b).

(6)Relevant benefit for the purposes of subsection (2)(c) is—

(a)benefit from conduct which constitutes the offence;

(b)benefit from conduct which constitutes an offence which has been or will be taken into consideration by the court in sentencing the defendant for the offence mentioned in paragraph (a).

(7)The Secretary of State may by order amend Schedule 2.

(8)The Secretary of State may by order vary the amount for the time being specified in subsection (4).

Commencement Information

I65S. 75 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch. (with art. 7) (as amended (6.3.2003) by S.I. 2003/531, art. 3)

76 Conduct and benefitE+W

(1)Criminal conduct is conduct which—

(a)constitutes an offence in England and Wales, or

(b)would constitute such an offence if it occurred in England and Wales.

(2)General criminal conduct of the defendant is all his criminal conduct, and it is immaterial—

(a)whether conduct occurred before or after the passing of this Act;

(b)whether property constituting a benefit from conduct was obtained before or after the passing of this Act.

(3)Particular criminal conduct of the defendant is all his criminal conduct which falls within the following paragraphs—

(a)conduct which constitutes the offence or offences concerned;

(b)conduct which constitutes offences of which he was convicted in the same proceedings as those in which he was convicted of the offence or offences concerned;

(c)conduct which constitutes offences which the court will be taking into consideration in deciding his sentence for the offence or offences concerned.

(4)A person benefits from conduct if he obtains property as a result of or in connection with the conduct.

(5)If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage.

(6)References to property or a pecuniary advantage obtained in connection with conduct include references to property or a pecuniary advantage obtained both in that connection and some other.

(7)If a person benefits from conduct his benefit is the value of the property obtained.

Commencement Information

I66S. 76 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch. (with art. 9)

77 Tainted giftsE+W

(1)Subsections (2) and (3) apply if—

(a)no court has made a decision as to whether the defendant has a criminal lifestyle, or

(b)a court has decided that the defendant has a criminal lifestyle.

(2)A gift is tainted if it was made by the defendant at any time after the relevant day.

(3)A gift is also tainted if it was made by the defendant at any time and was of property—

(a)which was obtained by the defendant as a result of or in connection with his general criminal conduct, or

(b)which (in whole or part and whether directly or indirectly) represented in the defendant’s hands property obtained by him as a result of or in connection with his general criminal conduct.

(4)Subsection (5) applies if a court has decided that the defendant does not have a criminal lifestyle.

(5)A gift is tainted if it was made by the defendant at any time after—

(a)the date on which the offence concerned was committed, or

(b)if his particular criminal conduct consists of two or more offences and they were committed on different dates, the date of the earliest.

(6)For the purposes of subsection (5) an offence which is a continuing offence is committed on the first occasion when it is committed.

(7)For the purposes of subsection (5) the defendant’s particular criminal conduct includes any conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

(8)A gift may be a tainted gift whether it was made before or after the passing of this Act.

(9)The relevant day is the first day of the period of six years ending with—

(a)the day when proceedings for the offence concerned were started against the defendant, or

(b)if there are two or more offences and proceedings for them were started on different days, the earliest of those days.

Commencement Information

I67S. 77 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

78 Gifts and their recipientsE+W

(1)If the defendant transfers property to another person for a consideration whose value is significantly less than the value of the property at the time of the transfer, he is to be treated as making a gift.

(2)If subsection (1) applies the property given is to be treated as such share in the property transferred as is represented by the fraction—

(a)whose numerator is the difference between the two values mentioned in subsection (1), and

(b)whose denominator is the value of the property at the time of the transfer.

(3)References to a recipient of a tainted gift are to a person to whom the defendant has made the gift.

Commencement Information

I68S. 78 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

79 Value: the basic ruleE+W

(1)This section applies for the purpose of deciding the value at any time of property then held by a person.

(2)Its value is the market value of the property at that time.

(3)But if at that time another person holds an interest in the property its value, in relation to the person mentioned in subsection (1), is the market value of his interest at that time, ignoring any charging order under a provision listed in subsection (4).

(4)The provisions are—

(a)section 9 of the Drug Trafficking Offences Act 1986 (c. 32);

(b)section 78 of the Criminal Justice Act 1988 (c. 33);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));

(d)section 27 of the Drug Trafficking Act 1994 (c. 37);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

(5)This section has effect subject to sections 80 and 81.

Commencement Information

I69S. 79 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

80 Value of property obtained from conductE+W

(1)This section applies for the purpose of deciding the value of property obtained by a person as a result of or in connection with his criminal conduct; and the material time is the time the court makes its decision.

(2)The value of the property at the material time is the greater of the following—

(a)the value of the property (at the time the person obtained it) adjusted to take account of later changes in the value of money;

(b)the value (at the material time) of the property found under subsection (3).

(3)The property found under this subsection is as follows—

(a)if the person holds the property obtained, the property found under this subsection is that property;

(b)if he holds no part of the property obtained, the property found under this subsection is any property which directly or indirectly represents it in his hands;

(c)if he holds part of the property obtained, the property found under this subsection is that part and any property which directly or indirectly represents the other part in his hands.

(4)The references in subsection (2)(a) and (b) to the value are to the value found in accordance with section 79.

Commencement Information

I70S. 80 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

81 Value of tainted giftsE+W

(1)The value at any time (the material time) of a tainted gift is the greater of the following—

(a)the value (at the time of the gift) of the property given, adjusted to take account of later changes in the value of money;

(b)the value (at the material time) of the property found under subsection (2).

(2)The property found under this subsection is as follows—

(a)if the recipient holds the property given, the property found under this subsection is that property;

(b)if the recipient holds no part of the property given, the property found under this subsection is any property which directly or indirectly represents it in his hands;

(c)if the recipient holds part of the property given, the property found under this subsection is that part and any property which directly or indirectly represents the other part in his hands.

(3)The references in subsection (1)(a) and (b) to the value are to the value found in accordance with section 79.

Commencement Information

I71S. 81 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

82 Free propertyE+W

[F345(1)Property is free unless it falls within subsection (2) or (3).]

[F346(2)][F347Property falls within this subsection if] an order is in force in respect of it under any of these provisions—

(a)section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders);

(b)Article 11 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (deprivation orders);

(c)Part 2 of the Proceeds of Crime (Scotland) Act 1995 (c. 43) (forfeiture of property used in crime);

(d)section 143 of [F348the Powers of Criminal Courts (Sentencing) Act 2000 or Chapter 4 of Part 7 of the Sentencing Code] (deprivation orders);

(e)section 23 [F349, 23A] or 111 of the Terrorism Act 2000 (c. 11) (forfeiture orders);

[F350(ea)paragraph 3(2), 6(2), 10D(1), 10G(2), 10J(3), 10S(2) [F351, 10Z2(3), 10Z7AG(1), 10Z7BB(2), 10Z7CA(3), 10Z7CE(3) or 10Z7DG(3)] of Schedule 1 to the Anti-terrorism, Crime and Security Act 2001;]

(f)section [F352245A, ] 246, [F353255A, 256,] 266, 295(2) [F354, 298(2), 303L(1), 303O(3), 303R(3), 303Z3 [F355, 303Z14(4), 303Z32(1), 303Z37(2), 303Z41(4), 303Z45(3) or 303Z60(4)]] of this Act.

[F356(3)Property falls within this subsection if—

(a)it has been forfeited in pursuance of a forfeiture notice under section 297A [F357or an account forfeiture notice under section 303Z9];

(b)it is detained under section 297C [F358, 297D [F359, 298(4) or 303O(9)]].]

[F360(ba)it is detained under section 303Z30, 303Z31 or 303Z32 in a case where section 303Z42(2) applies;

(bb)it is detained under section 303Z57 or 303Z58 in a case where section 303Z60(6) applies;]

[F361(c)it is the forfeitable property in relation to an order under section 303Q(1) [F362or 303Z44(1)].]

[F363(d)it has been forfeited in pursuance of a cash forfeiture notice under paragraph 5A of Schedule 1 to the Anti-terrorism, Crime and Security Act 2001 or an account forfeiture notice under paragraph 10W of that Schedule;

(e)it is detained under paragraph 5B, 5C, 9A or 10G(7) of that Schedule;

[F364(ea)it is detained under paragraph 10Z7AE, 10Z7AF or 10Z7AG of that Schedule in a case where paragraph 10Z7CB(2) of that Schedule applies;

(eb)it is detained under paragraph 10Z7DD or 10Z7DE of that Schedule in a case where paragraph 10Z7DG(5) of that Schedule applies;]

(f)it is the forfeitable property in relation to an order under paragraph 10I(1) [F365or 10Z7CD(1)] of that Schedule.]

Textual Amendments

F350S. 82(2)(ea) inserted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 34(2)(a), 58(1)(6); S.I. 2018/78, reg. 3(s)

F351Words in s. 82(2)(ea) substituted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 3(3)(a)(i); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

F354Words in s. 82(2)(f) substituted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 22(2); S.I. 2018/78, reg. 5(3)(a)(i)(ii)

F355Words in s. 82(2)(f) substituted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 3(3)(a)(ii); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

F357Words in s. 82(3)(a) inserted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 22(3)(a); S.I. 2018/78, reg. 5(3)(a)(i)(ii)

F358Words in s. 82(3)(b) substituted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 34(2)(b), 58(1)(6); S.I. 2018/78, reg. 3(s)

F359Words in s. 82(3)(b) substituted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 22(3)(b); S.I. 2018/78, reg. 5(3)(a)(i)(ii)

F360S. 82(3)(ba)(bb) inserted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 3(3)(b)(i); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

F361S. 82(3)(c) inserted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 22(3)(c); S.I. 2018/78, reg. 5(3)(a)(i)(ii)

F362Words in s. 82(3)(c) inserted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 3(3)(b)(ii); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

F363S. 82(3)(d)-(f) inserted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 34(2)(c), 58(1)(6); S.I. 2018/78, reg. 3(s)

F364S. 82(3)(ea)(eb) inserted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 or E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 3(3)(b)(iii); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

F365Words in s. 82(3)(f) inserted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 3(3)(b)(iv); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

Commencement Information

I72S. 82 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

83 Realisable propertyE+W

Realisable property is—

(a)any free property held by the defendant;

(b)any free property held by the recipient of a tainted gift.

Commencement Information

I73S. 83 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

84 Property: general provisionsE+W

(1)Property is all property wherever situated and includes—

(a)money;

(b)all forms of real or personal property;

(c)things in action and other intangible or incorporeal property.

(2)The following rules apply in relation to property—

(a)property is held by a person if he holds an interest in it;

(b)property is obtained by a person if he obtains an interest in it;

(c)property is transferred by one person to another if the first one transfers or grants an interest in it to the second;

(d)references to property held by a person include references to property vested in his trustee in bankruptcy [F366or liquidator or in the trustee or interim trustee in the sequestration, under the Bankruptcy (Scotland) Act 2016), of his estate;]

(e)references to an interest held by a person beneficially in property include references to an interest which would be held by him beneficially if the property were not so vested;

(f)references to an interest, in relation to land in England and Wales or Northern Ireland, are to any legal estate or equitable interest or power;

(g)references to an interest, in relation to land in Scotland, are to any estate, interest, servitude or other heritable right in or over land, including a heritable security;

(h)references to an interest, in relation to property other than land, include references to a right (including a right to possession).

Textual Amendments

Modifications etc. (not altering text)

Commencement Information

I74S. 84 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

[F36784ACryptoassets etcE+W

(1)“Cryptoasset” means a cryptographically secured digital representation of value or contractual rights that uses a form of distributed ledger technology and can be transferred, stored or traded electronically.

(2)“Crypto wallet” means—

(a)software,

(b)hardware,

(c)a physical item, or

(d)any combination of the things mentioned in paragraphs (a) to (c),

which is used to store the cryptographic private key that allows cryptoassets to be accessed.

(3)“Cryptoasset-related item” has the meaning given in section 47C(5B).

(4)The circumstances in which a cryptoasset is taken to be “destroyed” include circumstances where it is—

(a)disposed of,

(b)transferred, or

(c)otherwise dealt with,

in such a way as to ensure, or to make it virtually certain, that it will not be the subject of any further transactions or be dealt with again in any other way.

(5)The Secretary of State may by regulations amend the definitions of “cryptoasset” and “crypto wallet” in this section.]

Textual Amendments

F367S. 84A inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 18; S.I. 2024/269, reg. 4(a)

85 ProceedingsE+W

(1)Proceedings for an offence are started—

(a)when a justice of the peace issues a summons or warrant under section 1 of the Magistrates’ Courts Act 1980 (c. 43) in respect of the offence;

[F368(aa)when a [F369relevant prosecutor] issues a written charge and requisition [F370or single justice procedure notice] in respect of the offence;]

(b)when a person is charged with the offence after being taken into custody without a warrant;

(c)when a bill of indictment is preferred under section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 (c. 36) in a case falling within subsection (2)(b) of that section (preferment by Court of Appeal or High Court judge) [F371or subsection (2)(ba) of that section (preferment by Crown Court judge following approval of deferred prosecution agreement)].

(2)If more than one time is found under subsection (1) in relation to proceedings they are started at the earliest of them.

(3)If the defendant is acquitted on all counts in proceedings for an offence, the proceedings are concluded when he is acquitted.

(4)If the defendant is convicted in proceedings for an offence and the conviction is quashed or the defendant is pardoned before a confiscation order is made, the proceedings are concluded when the conviction is quashed or the defendant is pardoned.

(5)If a confiscation order is made against the defendant in proceedings for an offence (whether the order is made by the Crown Court or the Court of Appeal) the proceedings are concluded—

(a)when the order is satisfied or discharged, or

(b)when the order is quashed and there is no further possibility of an appeal against the decision to quash the order.

(6)If the defendant is convicted in proceedings for an offence but the Crown Court decides not to make a confiscation order against him, the following rules apply—

(a)if an application for leave to appeal under section 31(2) is refused, the proceedings are concluded when the decision to refuse is made;

(b)if the time for applying for leave to appeal under section 31(2) expires without an application being made, the proceedings are concluded when the time expires;

(c)if on appeal under section 31(2) the Court of Appeal confirms the Crown Court’s decision, and an application for leave to appeal under section 33 is refused, the proceedings are concluded when the decision to refuse is made;

(d)if on appeal under section 31(2) the Court of Appeal confirms the Crown Court’s decision, and the time for applying for leave to appeal under section 33 expires without an application being made, the proceedings are concluded when the time expires;

(e)if on appeal under section 31(2) the Court of Appeal confirms the Crown Court’s decision, and on appeal under section 33 the [F372Supreme Court] confirms the Court of Appeal’s decision, the proceedings are concluded when the [F372Supreme Court] confirms the decision;

(f)if on appeal under section 31(2) the Court of Appeal directs the Crown Court to reconsider the case, and on reconsideration the Crown Court decides not to make a confiscation order against the defendant, the proceedings are concluded when the Crown Court makes that decision;

(g)if on appeal under section 33 the [F372Supreme Court] directs the Crown Court to reconsider the case, and on reconsideration the Crown Court decides not to make a confiscation order against the defendant, the proceedings are concluded when the Crown Court makes that decision.

[F373(7)Any power to extend the time for giving notice of application for leave to appeal, or for applying for leave to appeal, must be ignored for the purposes of subsection (6).]

(8)In applying subsection (6) the fact that a court may decide on a later occasion to make a confiscation order against the defendant must be ignored.

[F374(9)In this section [F375“relevant prosecutor”], “requisition” [F376, “single justice procedure notice”] and “written charge” have the same meaning as in section 29 of the Criminal Justice Act 2003.]

Textual Amendments

Commencement Information

I75S. 85 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

86 ApplicationsE+W

(1)An application under section 19, 20, 27 or 28 is concluded—

(a)in a case where the court decides not to make a confiscation order against the defendant, when it makes the decision;

(b)in a case where a confiscation order is made against him as a result of the application, when the order is satisfied or discharged, or when the order is quashed and there is no further possibility of an appeal against the decision to quash the order;

(c)in a case where the application is withdrawn, when the person who made the application notifies the withdrawal to the court to which the application was made.

(2)An application under section 21 or 22 is concluded—

(a)in a case where the court decides not to vary the confiscation order concerned, when it makes the decision;

(b)in a case where the court varies the confiscation order as a result of the application, when the order is satisfied or discharged, or when the order is quashed and there is no further possibility of an appeal against the decision to quash the order;

(c)in a case where the application is withdrawn, when the person who made the application notifies the withdrawal to the court to which the application was made.

Commencement Information

I76S. 86 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

87 Confiscation ordersE+W

(1)A confiscation order is satisfied when no amount is due under it.

[F377(1A)The “amount payable” under a confiscation order, where part of that amount has been paid, means the amount that remains to be paid.]

(2)A confiscation order is subject to appeal until there is no further possibility of an appeal on which the order could be varied or quashedF378....

Textual Amendments

Commencement Information

I77S. 87 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

[F37987ANo further possibility of appealE+W

(1)The following rule applies for the purposes of construing any provision of this Part which refers to there being no further possibility of—

(a)an appeal against a decision of a court, or

(b)an appeal on which an order of a court could be varied or quashed.

(2)Any power to extend the time for giving notice of application for leave to appeal, or for applying for leave to appeal, must be ignored.]

Textual Amendments

88 Other interpretative provisionsE+W

(1)A reference to the offence (or offences) concerned must be construed in accordance with section 6(9).

(2)A criminal investigation is an investigation which police officers or other persons have a duty to conduct with a view to it being ascertained whether a person should be charged with an offence.

(3)A defendant is a person against whom proceedings for an offence have been started (whether or not he has been convicted).

(4)A reference to sentencing the defendant for an offence includes a reference to dealing with him otherwise in respect of the offence.

F380(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)The following paragraphs apply to references to orders—

(a)a confiscation order is an order under section 6;

(b)a restraint order is an order under section 41.

(7)Sections 75 to 87 and this section apply for the purposes of this Part.

Textual Amendments

Modifications etc. (not altering text)

C28S. 88(5) modified (1.12.2020 immediately before the consolidation date (see 2020 c. 9, ss. 3, 5(2)(3) and 2020 c. 17, ss. 2, 416)) by Sentencing (Pre-consolidation Amendments) Act 2020 (c. 9), ss. 1, 5(2)(3); S.I. 2012/1236, reg. 2

Commencement Information

I78S. 88 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

GeneralE+W

89 Procedure on appeal to the Court of AppealE+W

(1)An appeal to the Court of Appeal under this Part lies only with the leave of that Court.

(2)Subject to rules of court made under section 53(1) of the [F381Senior Courts Act 1981] (c. 54) (distribution of business between civil and criminal divisions) the criminal division of the Court of Appeal is the division—

(a)to which an appeal to that Court under this Part is to lie, and

(b)which is to exercise that Court’s jurisdiction under this Part.

(3)In relation to appeals to the Court of Appeal under this Part, the Secretary of State may make an order containing provision corresponding to any provision in the Criminal Appeal Act 1968 (c. 19) (subject to any specified modifications).

[F382(4)Subject to any rules made under section 91, the costs of and incidental to all proceedings on an appeal to the criminal division of the Court of Appeal under—

[F383(za)section 31(4) (appeals against determinations under section 10A),]

(a)section 43(1) or (2) (appeals against orders made in restraint proceedings), or

(b)section 65 (appeals against, or relating to, the making of receivership orders),

are in the discretion of the court.

(5)Such rules may in particular make provision for regulating matters relating to the costs of those proceedings, including prescribing scales of costs to be paid to legal or other representatives.

(6)The court shall have full power to determine by whom and to what extent the costs are to be paid.

(7)In any proceedings mentioned in subsection (4), the court may—

(a)disallow, or

(b)(as the case may be) order the legal or other representative concerned to meet,

the whole of any wasted costs or such part of them as may be determined in accordance with rules under section 91.

(8)In subsection (7) “wasted costs” means any costs incurred by a party—

(a)as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative, or

(b)which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay.

(9)“Legal or other representative”, in relation to a party to proceedings means any person exercising a right of audience or right to conduct litigation on his behalf.]

Textual Amendments

F382S. 89(4)-(9) inserted (20.11.2003) by Courts Act 2003 (c. 39), ss. 94(2)(3), 110(2)

Commencement Information

I79S. 89 in force for certain purposes at 30.12.2002 by S.I. 2002/3015, art. 2, Sch.

I80S. 89 in force at 24.3.2003 in so far as not already in force by S.I. 2003/333, art. 2, Sch.

90 Procedure on appeal to the [F384Supreme Court] E+W

(1)Section 33(3) of the Criminal Appeal Act 1968 (limitation on appeal from criminal division of the Court of Appeal) does not prevent an appeal to the [F385Supreme Court] under this Part.

(2)In relation to appeals to the [F385Supreme Court] under this Part, the Secretary of State may make an order containing provision corresponding to any provision in the Criminal Appeal Act 1968 (subject to any specified modifications).

Textual Amendments

Commencement Information

I81S. 90 in force for certain purposes (30.12.2002) by S.I. 2002/3015, art. 2, Sch.

I82S. 90 in force at 24.3.2003 in so far as not already in force by S.I. 2003/333, art. 2, Sch.

91 Crown Court RulesE+W

In relation to—

(a)proceedings under this Part, or

(b)receivers appointed under this Part,

[F386Criminal Procedure Rules] may make provision corresponding to provision in Civil Procedure Rules.

Textual Amendments

Commencement Information

I83S. 91 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

Part 3 SConfiscation: Scotland

Modifications etc. (not altering text)

C30Pt. 3 applied by Terrorism Act 2000 (c. 11), Sch. 8 paras. 17(4A), 34(3A) (as substituted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), s. 458(1), Sch. 11 para. 39(4)(5); S.S.I. 2003/210, art. 2(1)(b)(2), sch. (with art. 7); S.I. 2003/333, art. 2, Sch.

C33Pt. 3 applied (12.2.2019 for specified purposes, 13.8.2020 in so far as not already in force) by Counter-Terrorism and Border Security Act 2019 (c. 3), s. 27(1)(g), Sch. 3 para. 39(6) (with s. 25(9)); S.I. 2020/792, reg. 2(g)

Confiscation ordersS

92 Making of orderS

(1)The court must act under this section where the following three conditions are satisfied.

(2)The first condition is that an accused falls within either of the following paragraphs—

(a)he is convicted of an offence or offences, whether in solemn or summary proceedings, or

(b)in the case of summary proceedings in respect of an offence (without proceeding to conviction) an order is made discharging him absolutely.

(3)The second condition is that the prosecutor asks the court to act under this section.

(4)The third condition is that the court decides to order some disposal in respect of the accused; and an absolute discharge is a disposal for the purpose of this subsection.

(5)If the court acts under this section it must proceed as follows—

(a)it must decide whether the accused has a criminal lifestyle;

(b)if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct;

(c)if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct.

(6)If the court decides under subsection (5)(b) or (c) that the accused has benefited from the conduct referred to—

(a)it must decide the recoverable amount, and

(b)it must make an order (a confiscation order) requiring him to pay that amount.

[F387Paragraph (b) applies only if, or to the extent that, it would not be disproportionate to require the accused to pay the recoverable amount.]

(7)But the court must treat the duty in subsection (6) as a power if it believes that any victim of the conduct has at any time started or intends to start proceedings against the accused in respect of loss, injury or damage sustained in connection with the conduct.

(8)Before making an order under this section the court must take into account any representations made to it by any person whom the court thinks is likely to be affected by the order.

(9)The standard of proof required to decide any question arising under subsection (5) or (6) is the balance of probabilities.

(10)The first condition is not satisfied if the accused is unlawfully at large (but section 111 may apply).

(11)For the purposes of any appeal or review, an order under this section is a sentence.

(12)References in this Part to the offence (or offences) concerned are to the offence (or offences) mentioned in subsection (2).

(13)In this section and sections 93 to 118 “the court” means the High Court of Justiciary[F388, the Sheriff Appeal Court] or the sheriff.

Textual Amendments

Commencement Information

I84S. 92 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a) (with arts. 3(1), 5, 7)

93 Recoverable amountS

(1)The recoverable amount for the purposes of section 92 is an amount equal to the accused’s benefit from the conduct concerned.

(2)But if the accused shows that the available amount is less than that benefit the recoverable amount is—

(a)the available amount, or

(b)a nominal amount, if the available amount is nil.

(3)But if section 92(7) applies the recoverable amount is such amount as—

(a)the court believes is just, but

(b)does not exceed the amount found under subsection (1) or (2) (as the case may be).

(4)In calculating the accused’s benefit from the conduct concerned for the purposes of subsection (1), [F389the following must be ignored—

(a)any property in respect of which a recovery order is in force under section 266,

(b)any property which has been forfeited in pursuance of a forfeiture notice under section 297A [F390or an account forfeiture notice under section 303Z9], F391...

(c)any property in respect of which a forfeiture order is in force under section 298(2)] [F392, 303O(3), 303R(3) [F393, 303Z14(4), 303Z41(4), 303Z45(3) or 303Z60(4)]] [F394, and

(d)any property which is the forfeitable property in relation to an order under section 303Q(1) [F395or 303Z44(1)].]

(5)If the court decides the available amount, it must include in the confiscation order a statement of its findings as to the matters relevant for deciding that amount.

Textual Amendments

F390Words in s. 93(4)(b) inserted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 23(a); S.I. 2018/78, reg. 5(3)(b)(i)(ii)

F391Word in s. 93(4)(b) omitted (27.4.2017 for specified purposes, 16.4.2018 in so far as not already in force) by virtue of Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 23(b); S.I. 2018/78, reg. 5(3)(c)

F392Words in s. 93(4)(c) inserted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 23(c); S.I. 2018/78, reg. 5(3)(b)(i)(ii)

F393Words in s. 93(4)(c) substituted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 4(2)(a); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

F394S. 93(4)(d) and word inserted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 23(d); S.I. 2018/78, reg. 5(3)(b)(i)(ii)

F395Words in s. 93(4)(d) inserted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 4(2)(b); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

Commencement Information

I85S. 93 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

94 Accused’s benefitS

(1)If the court is acting under section 92 this section applies for the purpose of—

(a)deciding whether the accused has benefited from conduct, and

(b)deciding his benefit from the conduct.

(2)The court must take account of—

(a)conduct occurring up to the time it makes its decision;

(b)property obtained up to that time.

(3)Subsection (4) applies if—

(a)the conduct concerned is general criminal conduct,

(b)a confiscation order mentioned in subsection (5) has at an earlier time been made against the accused, and

(c)his benefit for the purposes of that order was benefit from his general criminal conduct.

(4)His benefit found at the time the last confiscation order mentioned in subsection (3)(c) was made against him must be taken for the purposes of this section to be his benefit from his general criminal conduct at that time.

(5)If the conduct concerned is general criminal conduct the court must deduct the aggregate of the following amounts—

(a)the amount ordered to be paid under each confiscation order previously made against the accused;

(b)the amount ordered to be paid under each confiscation order previously made against him under—

(i)the Drug Trafficking Offences Act 1986 (c. 32);

(ii)Part 1 of the Criminal Justice (Scotland) Act 1987 (c. 41);

(iii)Part 6 of the Criminal Justice Act 1988 (c. 33);

(iv)the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I.17));

(v)Part 1 of the Drug Trafficking Act 1994 (c. 37);

(vi)Part 1 of the Proceeds of Crime (Scotland) Act 1995 (c. 43);

(vii)the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/ 1299 (N.I.9)); or

(viii)Part 2 or 4 of this Act.

(6)But subsection (5) does not apply to an amount which has been taken into account for the purposes of a deduction under that subsection on any earlier occasion.

(7)The reference to general criminal conduct in the case of a confiscation order made under any of the provisions listed in subsection (5)(b) is a reference to conduct in respect of which a court is required or entitled to make one or more assumptions for the purpose of assessing a person’s benefit from the conduct.

Commencement Information

I86S. 94 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

95 Available amountS

(1)For the purposes of deciding the recoverable amount, the available amount is the aggregate of—

(a)the total of the values (at the time the confiscation order is made) of all the free property then held by the accused minus the total amount payable in pursuance of obligations which then have priority, and

(b)the total of the values (at that time) of all tainted gifts.

(2)An obligation has priority if—

(a)it is an obligation of the accused to pay an amount due in respect of a fine or other order of a court which was imposed or made on conviction for an offence and at any time before the confiscation order is made, or

(b)it is an obligation of the accused to pay a sum which would be—

(i)a preferred debt if the accused’s estate were sequestrated on the date of the confiscation order, or

(ii)a preferential debt if his winding up were ordered on that date.

(3)In subsection (2)—

  • “preferred debt” has the meaning given by section [F396129(2) of the Bankruptcy (Scotland) Act 2016];

  • “preferential debt” has the meaning given by section 386 of the Insolvency Act 1986 (c. 45).

Textual Amendments

Commencement Information

I87S. 95 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

96 Assumptions to be made in case of criminal lifestyleS

(1)Where the court decides under section 92 that the accused has a criminal lifestyle it must make the following four assumptions for the purpose of—

(a)deciding whether he has benefited from his general criminal conduct, and

(b)deciding his benefit from the conduct.

(2)The first assumption is that any property transferred to the accused at any time after the relevant day was obtained by him—

(a)as a result of his general criminal conduct, and

(b)at the earliest time he appears to have held it.

(3)The second assumption is that any property held by the accused at any time after the date of conviction was obtained by him—

(a)as a result of his general criminal conduct, and

(b)at the earliest time he appears to have held it.

(4)The third assumption is that any expenditure incurred by the accused at any time after the relevant day was met from property obtained by him as a result of his general criminal conduct.

(5)The fourth assumption is that, for the purpose of valuing any property obtained (or assumed to have been obtained) by the accused, he obtained it free of any other interests in it.

(6)But the court must not make any of those assumptions in relation to particular property or expenditure if—

(a)the assumption is shown to be incorrect, or

(b)there would be a serious risk of injustice if the assumption were made.

(7)If the court does not make one or more of those assumptions it must state its reasons.

(8)The relevant day is the first day of the period of six years ending with—

(a)the day when proceedings for the offence concerned were instituted against the accused, or

(b)if there are two or more offences and proceedings for them were instituted on different days, the earliest of those days.

(9)But if a confiscation order mentioned in section 94(3)(c) has been made against the accused at any time during the period mentioned in subsection (8)—

(a)the relevant day is the day when the accused’s benefit was calculated for the purposes of the last such confiscation order;

(b)the second assumption does not apply to any property which was held by him on or before the relevant day.

(10)The date of conviction is—

(a)the date on which the accused was convicted of the offence concerned, or

(b)if there are two or more offences and the convictions are on different dates, the date of the latest.

Commencement Information

I88S. 96 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

97 Effect of order on court’s other powersS

(1)If the court decides to make a confiscation order it must act as mentioned in subsections (2) and (4) in respect of the offence or offences concerned.

(2)The court must take account of the confiscation order before—

(a)it imposes a fine on the accused, or

(b)it makes an order falling within subsection (3).

(3)These orders fall within this subsection—

(a)an order involving payment by the accused, other than a compensation order under section 249 of the Procedure Act (compensation orders) [F397, a restitution order or a victim surcharge under section 253F(2) of the Procedure Act];

(b)an order under section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders);

(c)an order under Part 2 of the Proceeds of Crime (Scotland) Act 1995 (c. 43) (forfeiture orders);

(d)an order under section 23 [F398or 23A] of the Terrorism Act 2000 (c. 11) (forfeiture orders).

(4)Subject to subsection (2), the court must leave the confiscation order out of account in deciding the appropriate sentence for the accused.

(5)Subsection (6) applies if—

(a)a court makes both a confiscation order and a compensation order under section 249 of the Procedure Act against the same person in the same proceedings, and

(b)the court believes he will not have sufficient means to satisfy both the orders in full.

(6)In such a case the court must direct that so much of the compensation as it specifies is to be paid out of any sums recovered under the confiscation order; and the amount it specifies must be the amount it believes will not be recoverable because of the insufficiency of the person’s means.

Textual Amendments

F397Words in s. 97(3)(a) inserted (25.11.2019 for specified purposes, 10.2.2021 in so far as not already in force) by Serious Crime Act 2015 (c. 9), ss. 15(1), 88(2)(a); S.S.I. 2019/281, reg. 2; S.S.I. 2020/407, reg. 2(1)(a)

Commencement Information

I89S. 97 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

[F39997AApplication of receipts: restitution order and victim surchargeS

(1)Subsection (2) applies if—

(a)a court makes a confiscation order and a relevant order against the same person in the same proceedings, and

(b)the court believes that the person will not have sufficient means to satisfy both orders in full.

(2)In such a case the court must direct that so much of the amount payable under the relevant order as it specifies is to be paid out of any sums recovered under the confiscation order.

(3)Subsection (4) applies if—

(a)a court makes a confiscation order, a compensation order under section 249 of the Procedure Act and a relevant order against the same person in the same proceedings, and

(b)the court believes that the person will not have sufficient means to satisfy all the orders in full.

(4)In such a case the court must direct that so much of the compensation, and so much of the amount payable under the relevant order, as it specifies is to be paid out of any sums recovered under the confiscation order.

(5)The amount a court specifies under subsection (2) or (4) must be the amount the court believes will not be recoverable because of the insufficiency of the person's means.

(6)Where the amount a court specifies in a direction under subsection (4) is sufficient to satisfy in full the compensation, the direction must provide for the compensation to be so satisfied before payment of the amount payable under the relevant order.

(7)Where the amount a court specifies in a direction under subsection (4) is not sufficient to satisfy in full the compensation, the direction must provide for the compensation to be satisfied to the extent of the amount specified in the direction.

(8)In this section, “relevant order” means—

(a)a restitution order, or

(b)a victim surcharge under section 253F(2) of the Procedure Act.

(9)In this Part, “restitution order” is to be construed in accordance with section 253A(2) of the Procedure Act.]

Textual Amendments

F399S. 97A inserted (25.11.2019 for specified purposes, 10.2.2021 in so far as not already in force) by Serious Crime Act 2015 (c. 9), ss. 15(2), 88(2)(a); S.S.I. 2019/281, reg. 2; S.S.I. 2020/407, reg. 2(1)(a)

[F40097BOrders for securing compliance with confiscation orderS

(1)This section applies where the court makes a confiscation order.

(2)The court may make such order in relation to the accused as it believes is appropriate for the purpose of ensuring that the confiscation order is effective (a “compliance order”).

(3)The court must consider whether to make a compliance order—

(a)on the making of the confiscation order, and

(b)if it does not make a compliance order then, at any later time (while the confiscation order is still in effect) on the application of the prosecutor.

(4)In considering whether to make a compliance order, the court must, in particular, consider whether any restriction or prohibition on the accused's travel outside the United Kingdom ought to be imposed for the purpose mentioned in subsection (2).

(5)The court may discharge or vary a compliance order on an application made by—

(a)the prosecutor;

(b)the accused.

(6)For the purposes of any appeal or review, a compliance order is a sentence.

Textual Amendments

97CBreach of compliance orderS

(1)This section applies where—

(a)a compliance order has been made in relation to an accused, and

(b)it appears to the court that the accused has failed to comply with the compliance order.

(2)The court may—

(a)issue a warrant for the accused's arrest, or

(b)issue a citation to the accused requiring the accused to appear before the court.

(3)If the accused fails to appear as required by a citation issued under subsection (2)(b), the court may issue a warrant for the arrest of the accused.

(4)The unified citation provisions (as defined in section 307(1) of the Procedure Act) apply in relation to a citation under subsection (2)(b).

(5)The court must, before considering the alleged failure—

(a)provide the accused with written details of the alleged failure,

(b)inform the accused that the accused is entitled to be legally represented, and

(c)inform the accused that no answer need be given to the allegation before the accused—

(i)has been given an opportunity to take legal advice, or

(ii)has indicated that the accused does not wish to take legal advice.

(6)If the court is satisfied that the accused has failed without reasonable excuse to comply with the compliance order, the court may—

(a)impose on the accused a fine not exceeding level 3 on the standard scale,

(b)revoke the compliance order and impose on the accused a sentence of imprisonment for a term not exceeding 3 months,

(c)vary the compliance order, or

(d)both impose a fine under paragraph (a) and vary the order under paragraph (c).

(7)The court may vary the compliance order if the court is satisfied—

(a)that the accused has failed to comply with the order,

(b)that the accused had a reasonable excuse for the failure, and

(c)that, having regard to the circumstances which have arisen since the order was imposed, it is in the interests of justice to vary the order.

(8)Evidence of one witness is sufficient for the purpose of establishing that an accused has failed without reasonable excuse to comply with a compliance order.

Textual Amendments

97DAppeals against variation or discharge of compliance ordersS

The prosecutor or the accused may appeal against a decision of the court under section 97B(5)—

(a)to vary or refuse to vary a compliance order, or

(b)to discharge or refuse to discharge a compliance order.]

Textual Amendments

98 Disposal of family homeS

(1)This section applies where a confiscation order has been made in relation to any person and the prosecutor has not satisfied the court that the person’s interest in his family home has been acquired as a benefit from his criminal conduct.

(2)Where this section applies, then, before the administrator disposes of any right or interest in the person’s family home he shall—

(a)obtain the relevant consent; or

(b)where he is unable to do so, apply to the court for authority to carry out the disposal.

(3)On an application being made to it under subsection (2)(b), the court, after having regard to all the circumstances of the case including—

(a)the needs and financial resources of the spouse or former spouse of the person concerned;

(b)the needs and financial resources of any child of the family;

(c)the length of the period during which the family home has been used as a residence by any of the persons referred to in paragraph (a) or (b),

may refuse to grant the application or may postpone the granting of the application for such period (not exceeding 12 months) as it may consider reasonable in the circumstances or may grant the application subject to such conditions as it may prescribe.

(4)Subsection (3) shall apply—

(a)to an action for division and sale of the family home of the person concerned; or

(b)to an action for the purpose of obtaining vacant possession of that home,

brought by the administrator as it applies to an application under subsection (2)(b) and, for the purposes of this subsection, any reference in subsection (3) to the granting of the application shall be construed as a reference to the granting of decree in the action.

(5)In this section—

  • “family home”, in relation to any person (in this subsection referred to as “the relevant person”) means any property in which the relevant person has or had (whether alone or in common with any other person) a right or interest, being property which is occupied as a residence by the relevant person and his or her spouse or by the relevant person’s spouse or former spouse (in any case with or without a child of the family) or by the relevant person with a child of the family;

  • “child of the family” includes any child or grandchild of either the relevant person or his or her spouse or former spouse, and any person who has been treated by either the relevant person or his or her spouse or former spouse as if he or she were a child of the relevant person, spouse or former spouse, whatever the age of such a child, grandchild or person may be; and

  • “relevant consent” means in relation to the disposal of any right or interest in a family home—

    (a)

    in a case where the family home is occupied by the spouse or former spouse of the relevant person, the consent of the spouse or, as the case may be, of the former spouse, whether or not the family home is also occupied by the relevant person;

    (b)

    where paragraph (a) does not apply, in a case where the family home is occupied by the relevant person with a child of the family, the consent of the relevant person.

Commencement Information

I90S. 98 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

Procedural mattersS

99 PostponementS

(1)The court may—

(a)proceed under section 92 before it sentences the accused for the offence (or any of the offences concerned), or

(b)postpone proceedings under section 92 for a specified period.

(2)A period of postponement may be extended.

(3)A period of postponement (including one as extended) must not end after the permitted period ends.

(4)But subsection (3) does not apply if there are exceptional circumstances or if the accused has failed to comply with an order under section 102(1).

(5)The permitted period is the period of two years starting with the date of conviction.

(6)But if—

(a)the accused appeals against his conviction for the offence (or any of the offences) concerned, and

(b)the period of three months (starting with the day when the appeal is determined or otherwise disposed of) ends after the period found under subsection (5),

the permitted period is that period of three months.

(7)A postponement or extension may be made—

(a)on application by the accused;

(b)on application by the prosecutor;

(c)by the court of its own motion.

(8)If—

(a)proceedings are postponed for a period, and

(b)an application to extend the period is made before it ends,

the application may be granted even after the period ends.

(9)The date of conviction is—

(a)the date on which the accused was convicted of the offence concerned, or

(b)if there are two or more offences and the convictions were on different dates, the date of the latest.

(10)A confiscation order must not be quashed only on the ground that there was a defect or omission in the procedure connected with the application for or the granting of a postponement.

(11)But subsection (10) does not apply if before it made the confiscation order the court has—

(a)imposed a fine on the accused;

(b)made an order falling within section 97(3);

(c)made an order under section 249 of the Procedure Act;

[F401(d)made a restitution order;

(e)ordered the accused under section 253F(2) of the Procedure Act to pay a victim surcharge.]

Textual Amendments

F401S. 99(11)(d)(e) inserted (25.11.2019 for specified purposes, 10.2.2021 in so far as not already in force) by Serious Crime Act 2015 (c. 9), s. 88(2)(c), Sch. 4 para. 36; S.S.I. 2019/281, reg. 2; S.S.I. 2020/407, reg. 2(1)(c)

Commencement Information

I91S. 99 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

100 Effect of postponementS

(1)If the court postpones proceedings under section 92 it may proceed to sentence the accused for the offence (or any of the offences) concerned.

(2)Subsection (1) is without prejudice to sections 201 and 202 of the Procedure Act.

(3)In sentencing the accused for the offence (or any of the offences) concerned in the postponement period the court must not—

(a)impose a fine on him,

(b)make an order falling within section 97(3),F402...

(c)make an order for the payment of compensation under section 249 of the Procedure Act.

[F403(d)make a restitution order, or

(e)order the accused under section 253F(2) of the Procedure Act to pay a victim surcharge.]

(4)If the court sentences the accused for the offence (or any of the offences) concerned in the postponement period, after that period ends it may vary the sentence by—

(a)imposing a fine on him,

(b)making an order falling within section 97(3), F404...

(c)making an order for the payment of compensation under section 249 of the Procedure Act.

[F405(d)making a restitution order, or

(e)ordering the accused under section 253F(2) of the Procedure Act to pay a victim surcharge.]

(5)But the court may proceed under subsection (4) only within the period of 28 days which starts with the last day of the postponement period.

(6)Where the court postpones proceedings under section 92 following conviction on indictment, section 109(1) of the Procedure Act (intimation of intention to appeal against conviction or conviction and sentence) has effect as if the reference to the final determination of the proceedings were a reference to the relevant day.

(7)Despite subsection (6), the accused may appeal under section 106 of the Procedure Act against any confiscation order made, or any other sentence passed, after the end of the postponement period, in respect of the conviction.

(8)Where the court postpones proceedings under section 92 following conviction on complaint—

(a)section 176(1) of the Procedure Act (stated case: manner and time of appeal) has effect in relation to an appeal under section 175(2)(a) or (d) as if the reference to the final determination of the proceedings were a reference to the relevant day, and

(b)the draft stated case in such an appeal must be prepared and issued within 3 weeks of the relevant day.

(9)Despite subsection (8), the accused may appeal under section 175(2)(b), and the prosecutor may appeal under section 175(3)(b), of the Procedure Act against any confiscation order made, or any other sentence passed, after the end of the postponement period, in respect of the conviction.

(10)The relevant day is—

(a)in the case of an appeal against conviction where the court has sentenced the accused under subsection (1), the day on which the postponement period commenced;

(b)in any other case, the day on which sentence is passed in open court.

(11)The postponement period is the period for which proceedings under section 92 are postponed.

Textual Amendments

F402Word in s. 100(3)(b) omitted (25.11.2019 for specified purposes, 10.2.2021 in so far as not already in force) by virtue of Serious Crime Act 2015 (c. 9), s. 88(2)(c), Sch. 4 para. 37(2)(a); S.S.I. 2019/281, reg. 2; S.S.I. 2020/407, reg. 2(1)(c)

F403S. 100(3)(d)(e) inserted (25.11.2019 for specified purposes, 10.2.2021 in so far as not already in force) by Serious Crime Act 2015 (c. 9), s. 88(2)(c), Sch. 4 para. 37(2)(b); S.S.I. 2019/281, reg. 2; S.S.I. 2020/407, reg. 2(1)(c)

F404Word in s. 100(4)(b) omitted (25.11.2019 for specified purposes, 10.2.2021 in so far as not already in force) by virtue of Serious Crime Act 2015 (c. 9), s. 88(2)(c), Sch. 4 para. 37(3)(a); S.S.I. 2019/281, reg. 2; S.S.I. 2020/407, reg. 2(1)(c)

F405S. 100(4)(d)(e) inserted (25.11.2019 for specified purposes, 10.2.2021 in so far as not already in force) by Serious Crime Act 2015 (c. 9), s. 88(2)(c), Sch. 4 para. 37(3)(b); S.S.I. 2019/281, reg. 2; S.S.I. 2020/407, reg. 2(1)(c)

Commencement Information

I92S. 100 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

101 Statement of informationS

(1)When the court is proceeding under section 92 the prosecutor must, within such period as the court may order, give the court a statement of information.

(2)If the prosecutor believes the accused has a criminal lifestyle the statement of information is a statement of matters the prosecutor believes are relevant in connection with deciding these issues—

(a)whether the accused has a criminal lifestyle;

(b)whether he has benefited from his general criminal conduct;

(c)his benefit from the conduct.

(3)A statement under subsection (2) must include information the prosecutor believes is relevant—

(a)in connection with the making by the court of a required assumption under section 96;

(b)for the purpose of enabling the court to decide if the circumstances are such that it must not make such an assumption.

(4)If the prosecutor does not believe the accused has a criminal lifestyle the statement of information is a statement of matters the prosecutor believes are relevant in connection with deciding these issues—

(a)whether the accused has benefited from his particular criminal conduct;

(b)his benefit from the conduct.

(5)If the prosecutor gives the court a statement of information—

(a)he may at any time give the court a further statement of information;

(b)he must give the court a further statement of information if it orders him to do so, and he must give it within the period the court orders.

(6)If the court makes an order under this section it may at any time vary it by making another one.

Commencement Information

I93S. 101 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

102 Accused’s response to statement of informationS

(1)When the prosecutor gives the court a statement of information and the court is satisfied that he has served a copy on the accused, the court shall order the accused—

(a)to indicate the extent to which he accepts each allegation in the statement, and

(b)so far as he does not accept such an allegation, to give particulars of any matters he proposes to rely on,

within the period it orders.

(2)Where by virtue of section 99 the court postpones proceedings under section 92, the period ordered by the court under subsection (1) shall be a period ending not less than six months before the end of the permitted period mentioned in section 99.

(3)If the accused accepts to any extent an allegation in a statement of information the court may treat his acceptance as conclusive of the matters to which it relates for the purpose of deciding the issues referred to in section 101(2) or (4) (as the case may be).

(4)If the accused fails in any respect to comply with an order under subsection (1) he may be treated for the purposes of subsection (3) as accepting every allegation in the statement of information apart from—

(a)any allegation in respect of which he has complied with the requirement;

(b)any allegation that he has benefited from his general or particular criminal conduct.

(5)Where—

(a)an allegation in a statement of information is challenged by the accused, or

(b)the matters referred to in subsection (1)(b) are challenged by the prosecutor,

the court must consider the matters being challenged at a hearing.

(6)The judge presiding at the hearing may, if he is not the trial judge and he considers it in the interests of justice to do so, adjourn the hearing to a date when the trial judge is available.

(7)If the court makes an order under this section it may at any time vary it by making another one.

(8)No acceptance under this section that the accused has benefited from conduct is admissible in evidence in proceedings for an offence.

Commencement Information

I94S. 102 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

103 Provision of information by accusedS

(1)For the purpose of obtaining information to help it in carrying out its functions under section 92 the court may at any time order the accused to give it information specified in the order.

(2)An order under this section may require all or a specified part of the information to be given in a specified manner and before a specified date.

(3)If the accused fails without reasonable excuse to comply with an order under this section the court may draw such inference as it thinks appropriate.

(4)Subsection (3) does not affect any power of the court to deal with the accused in respect of a failure to comply with an order under this section.

(5)If the prosecutor accepts to any extent an allegation made by the accused—

(a)in giving information required by an order under this section, or

(b)in any other statement given to the court in relation to any matter relevant to deciding the available amount under section 95,

the court may treat the acceptance as conclusive of the matters to which it relates.

(6)For the purposes of this section an allegation may be accepted in a manner ordered by the court.

(7)If the court makes an order under this section it may at any time vary it by making another order.

(8)No information given under this section which amounts to an admission by the accused that he has benefited from criminal conduct is admissible in evidence in proceedings for an offence.

Commencement Information

I95S. 103 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

ReconsiderationS

104 No order made: reconsideration of caseS

(1)This section applies if—

(a)the first condition in section 92 is satisfied but no court has proceeded under that section,

(b)the prosecutor has evidence which was not available to him on the relevant date,

(c)before the end of the period of six years starting with the date of conviction the prosecutor applies to the court to consider the evidence, and

(d)after considering the evidence the court thinks it is appropriate for it to proceed under section 92.

(2)The court must proceed under section 92, and when it does so subsections (3) to (8) below apply.

(3)If the court has already sentenced the accused for the offence (or any of the offences) concerned section 92(4) does not apply.

(4)Section 94(2) does not apply, and the rules applying instead are that the court must take account of—

(a)conduct occurring before the relevant date;

(b)property obtained before that date;

(c)property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

(5)In relation to the assumptions that the court must make under section 96—

(a)the first and second assumptions do not apply with regard to property first held by the accused on or after the relevant date;

(b)the third assumption does not apply with regard to expenditure incurred by him on or after that date;

(c)the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

(6)The recoverable amount for the purposes of section 92 is such amount as—

(a)the court believes is just, but

(b)does not exceed the amount found under section 93.

(7)In arriving at the just amount the court must have regard in particular to—

(a)the amount found under section 93;

(b)any fine imposed on the accused in respect of the offence (or any of the offences) concerned;

(c)any order which falls within section 97(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by a court in deciding what is the free property held by the accused for the purposes of section 95;

(d)any compensation order which has been made against him in respect of the offence (or any of the offences) concerned under section 249 of the Procedure Act.

[F406(e)any restitution order which has been made against the accused in respect of the offence (or any of the offences) concerned;

(f)any order under section 253F(2) of the Procedure Act requiring the accused to pay a victim surcharge in respect of the offence (or any of the offences) concerned.]

(8)If an order for payment of compensation under section 249 of the Procedure Act has been made against the accused in respect of the offence or offences concerned, section 97(5) and (6) do not apply.

[F407(8A)If a restitution order or an order under section 253F(2) of the Procedure Act has been made against the accused in respect of the offence or offences concerned, section 97A(2) and (4) does not apply.]

(9)The relevant date is—

(a)if the court made a decision not to proceed under section 92, the date of the decision;

(b)if the court did not make such a decision, the date of the conviction.

(10)The date of conviction is—

(a)the date on which the accused was convicted of the offence concerned, or

(b)if there are two or more offences and the convictions were on different dates, the date of the latest.

(11)In this section references to the court are to the court which had jurisdiction in respect of the offence or offences concerned to make a confiscation order.

Textual Amendments

F406S. 104(7)(e)(f) inserted (25.11.2019 for specified purposes, 10.2.2021 in so far as not already in force) by Serious Crime Act 2015 (c. 9), s. 88(2)(c), Sch. 4 para. 38(2); S.S.I. 2019/281, reg. 2; S.S.I. 2020/407, reg. 2(1)(c)

F407S. 104(8A) inserted (25.11.2019 for specified purposes, 10.2.2021 in so far as not already in force) by Serious Crime Act 2015 (c. 9), s. 88(2)(c), Sch. 4 para. 38(3); S.S.I. 2019/281, reg. 2; S.S.I. 2020/407, reg. 2(1)(c)

Commencement Information

I96S. 104 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

105 No order made: reconsideration of benefitS

(1)This section applies if the following two conditions are satisfied.

(2)The first condition is that in proceeding under section 92 the court has decided that—

(a)the accused has a criminal lifestyle but has not benefited from his general criminal conduct, or

(b)the accused does not have a criminal lifestyle and has not benefited from his particular criminal conduct.

(3)The second condition is that—

(a)the prosecutor has evidence which was not available to him when the court decided that the accused had not benefited from his general or particular criminal conduct,

(b)before the end of the period of six years starting with the date of conviction the prosecutor applies to the court to consider the evidence, and

(c)after considering the evidence the court concludes that it would have decided that the accused had benefited from his general or particular criminal conduct (as the case may be) if the evidence had been available to it.

(4)If this section applies the court—

(a)must make a fresh decision under section 92(5)(b) or (c) as to whether the accused has benefited from his general or particular criminal conduct (as the case may be);

(b)may make a confiscation order under that section.

(5)Subsections (6) to (11) below apply if the court proceeds under section 92 in pursuance of this section.

(6)If the court has already sentenced the accused for the offence (or any of the offences) concerned section 92(4) does not apply.

(7)Section 94(2) does not apply, and the rules applying instead are that the court must take account of—

(a)conduct occurring before the date of the original decision that the accused had not benefited from his general or particular criminal conduct;

(b)property obtained before that date;

(c)property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

(8)In relation to the assumptions that the court must make under section 96—

(a)the first and second assumptions do not apply with regard to property first held by the accused on or after the date of the original decision that the accused had not benefited from his general or particular criminal conduct;

(b)the third assumption does not apply with regard to expenditure incurred by him on or after that date;

(c)the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

(9)The recoverable amount for the purposes of section 92 is such amount as—

(a)the court believes is just, but

(b)does not exceed the amount found under section 93.

(10)In arriving at the just amount the court must have regard in particular to—

(a)the amount found under section 93;

(b)any fine imposed on the accused in respect of the offence (or any of the offences) concerned;

(c)any order which falls within section 97(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by a court in deciding what is the free property held by the accused for the purposes of section 95;

(d)any compensation order which has been made against him in respect of the offence (or any of the offences) concerned under section 249 of the Procedure Act.

[F408(e)any restitution order which has been made against the accused in respect of the offence (or any of the offences) concerned;

(f)any order under section 253F(2) of the Procedure Act requiring the accused to pay a victim surcharge in respect of the offence (or any of the offences) concerned.]

(11)If an order for the payment of compensation under section 249 of the Procedure Act has been made against the accused in respect of the offence or offences concerned, section 97(5) and (6) do not apply.

[F409(11A)If a restitution order or an order under section 253F(2) of the Procedure Act has been made against the accused in respect of the offence or offences concerned, section 97A(2) and (4) does not apply.]

(12)The date of conviction is the date found by applying section 104(10).

(13)In this section references to the court are to the court which had jurisdiction in respect of the offence or offences concerned to make a confiscation order.

Textual Amendments

F408S. 105(10)(e)(f) inserted (25.11.2019 for specified purposes, 10.2.2021 in so far as not already in force) by Serious Crime Act 2015 (c. 9), s. 88(2)(c), Sch. 4 para. 39(2); S.S.I. 2019/281, reg. 2; S.S.I. 2020/407, reg. 2(1)(c)

F409S. 105(11A) inserted (25.11.2019 for specified purposes, 10.2.2021 in so far as not already in force) by Serious Crime Act 2015 (c. 9), s. 88(2)(c), Sch. 4 para. 39(3); S.S.I. 2019/281, reg. 2; S.S.I. 2020/407, reg. 2(1)(c)

Commencement Information

I97S. 105 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

106 Order made: reconsideration of benefitS

(1)This section applies if—

(a)a court has made a confiscation order,

(b)there is evidence which was not available to the prosecutor at the relevant time,

(c)the prosecutor believes that if the court were to find the amount of the accused’s benefit in pursuance of this section it would exceed the relevant amount,

(d)before the end of the period of six years starting with the date of conviction the prosecutor applies to the court to consider the evidence, and

(e)after considering the evidence the court thinks it is appropriate for it to proceed under this section.

(2)The court must make a new calculation of the accused’s benefit from the conduct concerned, and when it does so subsections (3) to (5) below apply.

(3)Section 94(2) does not apply, and the rules applying instead are that the court must take account of—

(a)conduct occurring up to the time it decided the accused’s benefit for the purposes of the confiscation order;

(b)property obtained up to that time;

(c)property obtained after that time if it was obtained as a result of or in connection with conduct occurring before that time.

(4)In applying section 94(3) the confiscation order must be ignored.

(5)In relation to the assumptions that the court must make under section 96—

(a)the first and second assumptions do not apply with regard to property first held by the accused after the time the court decided his benefit for the purposes of the confiscation order;

(b)the third assumption does not apply with regard to expenditure incurred by him after that time;

(c)the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him after that time.

(6)If the amount found under the new calculation of the accused’s benefit exceeds the relevant amount the court—

(a)must make a new calculation of the recoverable amount for the purposes of section 92, and

(b)if it exceeds the amount required to be paid under the confiscation order, may vary the order by substituting for the amount required to be paid such amount as it believes just.

(7)In applying subsection (6)(a) the court must—

(a)take the new calculation of the accused’s benefit;

(b)apply section 95 as if references to the time the confiscation order is made were to the time of the new calculation of the recoverable amount and as if references to the date of the confiscation order were to the date of that new calculation.

(8)In applying subsection (6)(b) the court must have regard in particular to—

(a)any fine imposed on the accused for the offence (or any of the offences) concerned;

(b)any order which falls within section 97(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by a court in deciding what is the free property held by the accused for the purposes of section 95;

(c)any order which has been made against him in respect of the offence (or any of the offences) concerned under section 249 of the Procedure Act.

[F410(d)any restitution order which has been made against the accused in respect of the offence (or any of the offences) concerned;

(e)any order under section 253F(2) of the Procedure Act requiring the accused to pay a victim surcharge in respect of the offence (or any of the offences) concerned.]

(9)But in applying subsection (6)(b) [F411the court—

(a)must not] have regard to an order falling within subsection (8)(c) if a court has made a direction under section 97(6);

[F412(b)must not have regard to an order falling within subsection (8)(d) or (e) if a court has made a direction under section 97A(2) or (4).]

(10)In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.

(11)The relevant time is—

(a)when the court calculated the accused’s benefit for the purposes of the confiscation order, if this section has not applied previously;

(b)when the court last calculated the accused’s benefit in pursuance of this section, if this section has applied previously.

(12)The relevant amount is—

(a)the amount found as the accused’s benefit for the purposes of the confiscation order, if this section has not applied previously;

(b)the amount last found as the accused’s benefit in pursuance of this section, if this section has applied previously.

(13)The date of conviction is the date found by applying section 104(10).

Textual Amendments

F410S. 106(8)(d)(e) inserted (25.11.2019 for specified purposes, 10.2.2021 in so far as not already in force) by Serious Crime Act 2015 (c. 9), s. 88(2)(c), Sch. 4 para. 40(2); S.S.I. 2019/281, reg. 2; S.S.I. 2020/407, reg. 2(1)(c)

F411Words in s. 106(9) substituted (25.11.2019 for specified purposes, 10.2.2021 in so far as not already in force) by Serious Crime Act 2015 (c. 9), s. 88(2)(c), Sch. 4 para. 40(3)(a); S.S.I. 2019/281, reg. 2; S.S.I. 2020/407, reg. 2(1)(c)

F412S. 106(9)(b) inserted (25.11.2019 for specified purposes, 10.2.2021 in so far as not already in force) by Serious Crime Act 2015 (c. 9), s. 88(2)(c), Sch. 4 para. 40(3)(b); S.S.I. 2019/281, reg. 2; S.S.I. 2020/407, reg. 2(1)(c)

Commencement Information

I98S. 106 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

107 Order made: reconsideration of available amountS

(1)This section applies if—

(a)a court has made a confiscation order,

(b)the amount required to be paid was the amount found under section 93(2), and

(c)the prosecutor applies to the court to make a new calculation of the available amount.

(2)In a case where this section applies the court must make the new calculation, and in doing so it must apply section 95 as if references to the time the confiscation order is made were to the time of the new calculation and as if references to the date of the confiscation order were to the date of the new calculation.

(3)If the amount found under the new calculation exceeds the relevant amount the court may vary the order by substituting for the amount required to be paid such amount as—

(a)it thinks is just, but

(b)does not exceed the amount found as the accused’s benefit from the conduct concerned.

(4)In arriving at the just amount the court must have regard in particular to—

(a)any fine imposed on the accused for the offence (or any of the offences) concerned;

(b)any order which falls within section 97(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by a court in deciding what is the free property held by the accused for the purposes of section 95;

(c)any order which has been made against him in respect of the offence (or any of the offences) concerned under section 249 of the Procedure Act.

[F413(d)any restitution order which has been made against the accused in respect of the offence (or any of the offences) concerned;

(e)any order under section 253F(2) of the Procedure Act requiring the accused to pay a victim surcharge in respect of the offence (or any of the offences) concerned.]

(5)But in deciding what is just [F414the court—

(a)must not] have regard to an order falling within subsection (4)(c) if a court has made a direction under section 97(6);

[F415(b)must not have regard to an order falling within subsection (4)(d) or (e) if a court has made a direction under section 97A(2) or (4).]

(6)In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.

(7)The relevant amount is—

(a)the amount found as the available amount for the purposes of the confiscation order, if this section has not applied previously;

(b)the amount last found as the available amount in pursuance of this section, if this section has applied previously.

(8)The amount found as the accused’s benefit from the conduct concerned is—

(a)the amount so found when the confiscation order was made, or

(b)if one or more new calculations of the accused’s benefit have been made under section 106 the amount found on the occasion of the last such calculation.

Textual Amendments

F413S. 107(4)(d)(e) inserted (25.11.2019 for specified purposes, 10.2.2021 in so far as not already in force) by Serious Crime Act 2015 (c. 9), s. 88(2)(c), Sch. 4 para. 41(2); S.S.I. 2019/281, reg. 2; S.S.I. 2020/407, reg. 2(1)(c)

F414Words in s. 107(5) substituted (25.11.2019 for specified purposes, 10.2.2021 in so far as not already in force) by Serious Crime Act 2015 (c. 9), s. 88(2)(c), Sch. 4 para. 41(3)(a); S.S.I. 2019/281, reg. 2; S.S.I. 2020/407, reg. 2(1)(c)

F415S. 107(5)(b) inserted (25.11.2019 for specified purposes, 10.2.2021 in so far as not already in force) by Serious Crime Act 2015 (c. 9), s. 88(2)(c), Sch. 4 para. 41(3)(b); S.S.I. 2019/281, reg. 2; S.S.I. 2020/407, reg. 2(1)(c)

Commencement Information

I99S. 107 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

108 Inadequacy of available amount: variation of orderS

(1)This section applies if—

(a)a court has made a confiscation order, and

(b)the accused or the prosecutor applies to the court to vary the order under this section.

(2)In such a case the court must calculate the available amount and in doing so it must apply section 95 as if references to the time the confiscation order is made were to the time of the calculation and as if references to the date of the confiscation order were to the date of the calculation.

(3)If the court finds that the available amount (as so calculated) is inadequate to meet the amount remaining to be paid it may vary the order by substituting for the amount required to be paid such smaller amount as the court believes is just.

(4)If a person’s estate has been sequestrated or he has been [F416made] bankrupt, or if an order for the winding up of a company has been made, the court must take into account the extent to which realisable property held by him or by the company may be distributed among creditors.

(5)The court may disregard any inadequacy which it thinks is attributable (wholly or partly) to anything done by the accused for the purpose of preserving property held by the recipient of a tainted gift from any risk of realisation under this Part.

(6)In subsection (4) “company” means any company which may be wound up under the Insolvency Act 1986 (c. 45) or the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)).

Textual Amendments

Commencement Information

I100S. 108 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

109 Inadequacy of available amount: discharge of orderS

(1)This section applies if—

(a)a court has made a confiscation order,

(b)the prosecutor applies to the court to discharge the order under this section, and

(c)the amount remaining to be paid under the order is less than £1,000.

(2)In such a case the court must calculate the available amount, and in doing so it must apply section 95 as if references to the time the confiscation order is made were to the time of the calculation and as if references to the date of the confiscation order were to the date of the calculation.

(3)If the court—

(a)finds that the available amount (as so calculated) is inadequate to meet the amount remaining to be paid, and

(b)is satisfied that the inadequacy is due wholly to a specified reason or a combination of specified reasons,

it may discharge the confiscation order.

(4)The specified reasons are—

(a)in a case where any of the realisable property consists of money in a currency other than sterling, that fluctuations in currency exchange rates have occurred;

(b)any reason specified by the Scottish Ministers.

(5)The Scottish Ministers may by order vary the amount for the time being specified in subsection (1)(c).

[F417(6)The discharge of a confiscation order under this section does not prevent the making of an application in respect of the order under section 106(1)(d) or 107(1)(c).

(7)Where on such an application the court determines that the order should be varied under section 106(6) or (as the case may be) 107(3), the court may provide that its discharge under this section is revoked.]

Textual Amendments

F417S. 109(6)(7) inserted (S.) (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 32(4), 58(2)(6) (with s. 32(7)); S.S.I. 2017/456, reg. 2(c); S.I. 2018/78, reg. 3(o)

Commencement Information

I101S. 109 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

110 InformationS

(1)This section applies if—

(a)the court proceeds under section 92 in pursuance of section 104 or 105, or

(b)the prosecutor applies under section 106.

(2)In such a case—

(a)the prosecutor must give the court a statement of information within such period as the court may specify;

(b)section 101 applies accordingly (with appropriate modifications where the prosecutor applies under section 106);

(c)sections 102 and 103 apply accordingly.

Commencement Information

I102S. 110 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

Accused unlawfully at largeS

111 Conviction or other disposal of accusedS

(1)This section applies if an accused is unlawfully at large [F418and, either before or after he became unlawfully at large] —

(a)he is convicted of an offence or offences, whether in solemn or summary proceedings, or

(b)in the case of summary proceedings in respect of an offence (without proceeding to conviction) an order is made discharging him absolutely.

(2)If this section applies the court may, on the application of the prosecutor and if it believes it is appropriate for it to do so, proceed under section 92 in the same way as it must proceed if the conditions there mentioned are satisfied; but this is subject to subsection (3).

(3)If the court proceeds under section 92 as applied by this section, this Part has effect with these modifications—

(a)any person the court believes is likely to be affected by an order under section 92 is entitled to appear before the court and make representations;

(b)the court must not make an order under section 92 unless the prosecutor has taken reasonable steps to contact the accused;

(c)section 92(12) applies as if the reference to subsection (2) were to subsection (1) of this section;

(d)sections 96, 101(3), 102 and 103 do not apply;

(e)sections 104, 105 and 106 do not apply while the accused is still unlawfully at large.

[F419(4)Once the accused has ceased to be unlawfully at large—

(a)section 104 has effect as if subsection (1) read—

“(1)This section applies if—

(a)in a case where section 111 applies the court did not proceed under section 92,

(b)before the end of the period of six years starting with the day when the accused ceased to be unlawfully at large, the prosecutor applies to the court to proceed under section 92, and

(c)the court thinks it is appropriate for it to do so.”;

(b)section 105 has effect as if subsection (3) read—

“(3)The second condition is that—

(a)before the end of the period of six years starting with the day when the accused ceased to be unlawfully at large, the prosecutor applies to the court to reconsider whether the accused has benefited from his general or particular criminal conduct (as the case may be), and

(b)the court thinks it is appropriate for it to do so.”;

(c)section 106 has effect as if subsection (1) read—

“(1)This section applies if—

(a)a court has made a confiscation order,

(b)the prosecutor believes that if the court were to find the amount of the accused's benefit in pursuance of this section it would exceed the relevant amount,

(c)before the end of the period of six years starting with the day when the accused ceased to be unlawfully at large, the prosecutor applies to the court to proceed under this section, and

(d)the court thinks it is appropriate for it to do so.”;

(d)the modifications set out in subsection (3)(a) to (d) of this section do not apply to proceedings that take place by virtue of section 104, 105 or 106 (as applied by this subsection).]

Textual Amendments

F418Words in s. 111(1) substituted (1.3.2016) by Serious Crime Act 2015 (c. 9), ss. 18(1), 88(2)(a); S.S.I. 2016/11, reg. 2(c)

Commencement Information

I103S. 111 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a) (with arts. 3(2), 7)

112 Accused neither convicted nor acquittedS

(1)This section applies if—

(a)proceedings for an offence or offences are instituted against an accused but are not concluded,

(b)he is unlawfully at large, and

(c)the period of [F420three months] (starting with the day the court believes he first became unlawfully at large) has ended.

(2)If this section applies the court may, on an application by the prosecutor and if it believes it is appropriate for it to do so, proceed under section 92 in the same way as it must proceed if the conditions there mentioned are satisfied; but this is subject to subsection (3).

(3)If the court proceeds under section 92 as applied by this section, this Part has effect with these modifications—

(a)any person the court believes is likely to be affected by an order under section 92 is entitled to appear before the court and make representations;

(b)the court must not make an order under section 92 unless the prosecutor has taken reasonable steps to contact the accused;

(c)section 92(12) applies as if the reference to subsection (2) were to subsection (1) of this section;

(d)sections 96, 101(3), 102, 103, 104 and 105 do not apply;

(e)section 106 does not apply while the accused is still unlawfully at large.

[F421(4)Once the accused has ceased to be unlawfully at large—

(a)section 106 has effect as if subsection (1) read—

“(1)This section applies if—

(a)a court has made a confiscation order,

(b)the prosecutor believes that if the court were to find the amount of the accused's benefit in pursuance of this section it would exceed the relevant amount,

(c)before the end of the period of six years starting with the day when the accused ceased to be unlawfully at large, the prosecutor applies to the court to proceed under this section, and

(d)the court thinks it is appropriate for it to do so.”;

(b)the modifications set out in subsection (3)(a) to (d) of this section do not apply to proceedings that take place by virtue of section 106 (as applied by this subsection).]

(5)If—

(a)the court makes an order under section 92 as applied by this section, and

(b)the accused is later convicted of the offence (or any of the offences) concerned,

section 92 does not apply so far as that conviction is concerned.

Textual Amendments

F420Words in s. 112(1)(c) substituted (1.3.2016) by Serious Crime Act 2015 (c. 9), ss. 18(3), 88(2)(a); S.S.I. 2016/11, reg. 2(c)

Commencement Information

I104S. 112 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a) (with arts. 3(3), 7)

113 Variation of orderS

(1)This section applies if—

(a)the court makes a confiscation order under section 92 as applied by section 112,

(b)the accused ceases to be unlawfully at large,

(c)he is convicted of an offence (or any of the offences) mentioned in section 112(1)(a),

(d)he believes that the amount required to be paid was too large (taking the circumstances prevailing when the amount was found for the purposes of the order), and

(e)before the end of the relevant period he applies to the court to consider the evidence on which his belief is based.

(2)If (after considering the evidence) the court concludes that the accused’s belief is well founded—

(a)it must find the amount which should have been the amount required to be paid (taking the circumstances prevailing when the amount was found for the purposes of the order), and

(b)it may vary the order by substituting for the amount required to be paid such amount as it believes is just.

(3)The relevant period is the period of 28 days starting with—

(a)the date on which the accused was convicted of the offence mentioned in section 112(1)(a), or

(b)if there are two or more offences and the convictions were on different dates, the date of the latest.

(4)But in a case where section 112(1)(a) applies to more than one offence the court must not make an order under this section unless it is satisfied that there is no possibility of any further proceedings being taken or continued in relation to any such offence in respect of which the accused has not been convicted.

Commencement Information

I105S. 113 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

114 Discharge of orderS

(1)Subsection (2) applies if—

(a)the court makes a confiscation order under section 92 as applied by section 112,

(b)the accused is later tried for the offence or offences concerned and acquitted of the offence or offences, and

(c)he applies to the court to discharge the order.

(2)In such a case the court must discharge the order.

(3)Subsection (4) applies if—

(a)the court makes a confiscation order under section 92 as applied by section 112,

(b)the accused ceases to be unlawfully at large,

(c)subsection (1)(b) does not apply, and

(d)he applies to the court to discharge the order.

(4)In such a case the court may discharge the order if it finds that—

(a)there has been undue delay in continuing the proceedings mentioned in section 112(1), or

(b)the prosecutor does not intend to proceed with the prosecution.

(5)If the court discharges a confiscation order under this section it may make such a consequential or incidental order as it thinks is appropriate.

Commencement Information

I106S. 114 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

AppealsS

115 Appeal by prosecutorS

(1)Section 108 of the Procedure Act (Lord Advocate’s right of appeal in solemn proceedings) is amended as provided in subsections (2) to (4).

(2)In subsection (1), after paragraph (c) insert—

“(ca)a decision under section 92 of the Proceeds of Crime Act 2002 not to make a confiscation order;.”

(3)In subsection (2)(b)(ii), for the words “or (c)” substitute “ , (c) or (ca) ”.

(4)After subsection (2) insert—

“(3)For the purposes of subsection (2)(b)(i) above in its application to a confiscation order by virtue of section 92(11) of the Proceeds of Crime Act 2002, the reference to the disposal being unduly lenient is a reference to the amount required to be paid by the order being unduly low.”

(5)Section 175 of the Procedure Act (right of appeal in summary proceedings) is amended as provided in subsections (6) to (8).

(6)In subsection (4), after paragraph (c) insert—

“(ca)a decision under section 92 of the Proceeds of Crime Act 2002 not to make a confiscation order;.”

(7)In subsection (4A)(b)(ii), for the words “or (c)” substitute “ , (c) or (ca) ”.

(8)After subsection (4A) insert—

“(4B)For the purposes of subsection (4A)(b)(i) above in its application to a confiscation order by virtue of section 92(11) of the Proceeds of Crime Act 2002, the reference to the disposal being unduly lenient is a reference to the amount required to be paid by the order being unduly low.”

Commencement Information

I107S. 115 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

Payment and enforcementS

116 Time for paymentS

(1)The amount ordered to be paid under a confiscation order must be paid on the making of the order; but this is subject to the following provisions of this section.

(2)If the accused shows that he needs time to pay the amount ordered to be paid, the court making the confiscation order may make an order allowing payment to be made in a specified period.

(3)The specified period—

(a)must start with the day on which the confiscation order is made, and

(b)must not exceed six months.

(4)If within the specified period the accused applies to the sheriff court for the period to be extended and the court, after giving the prosecutor an opportunity of being heard, believes there are exceptional circumstances, it may make an order extending the period.

(5)The extended period—

(a)must start with the day on which the confiscation order is made, and

(b)must not exceed 12 months.

(6)An order under subsection (4)—

(a)may be made after the end of the specified period, but

(b)must not be made after the end of the period of twelve months starting with the day on which the confiscation order is made.

(7)The court must not make an order under subsection (2) or (4) unless it gives the prosecutor an opportunity to make representations.

Commencement Information

I108S. 116 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

F422116AFurther time for payment due to coronavirusS

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

Textual Amendments

F422S. 116A inserted (temp.) (27.5.2020) by virtue of Coronavirus (Scotland) (No.2) Act 2020 (asp 10), s. 16(1), sch. 2 para. 9(3) (with s. 9) (which affecting provision expires (1.10.2022) by virtue of Coronavirus (Scotland) (No.2) Act 2020 (asp 10), s. 9(1))

117 Interest on unpaid sumsS

(1)If the amount required to be paid by a person under a confiscation order is not paid when it is required to be paid (whether when the order is made or within a period specified under section 116), he must pay interest on the amount for the period for which it remains unpaid.

(2)The rate of interest is the rate payable under a decree of the Court of Session.

(3)For the purposes of this section no amount is required to be paid under a confiscation order if—

(a)an application has been made under section 116(4),

(b)the application has not been determined by the court, and

(c)the period of 12 months starting with the day on which the confiscation order was made has not ended.

(4)In applying this Part the amount of the interest must be treated as part of the amount to be paid under the confiscation order.

Modifications etc. (not altering text)

Commencement Information

I109S. 117 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

118 Application of provisions about fine enforcementS

(1)The provisions of the Procedure Act specified in subsection (2) apply, with the qualifications mentioned in that subsection, in relation to a confiscation order as if the amount ordered to be paid were a fine imposed on the accused by the court making the confiscation order.

(2)Those provisions are—

(a)section 211(3) to (6);

(b)section 214(4) to (6), but as if the references in subsection (4) to payment by instalments were omitted;

(c)section 216, but as if subsection (1)—

(i)gave the prosecutor an opportunity to be heard at any enquiry under that subsection; and

(ii)applied whether the offender was in prison or not;

(d)section 217;

(e)section 218(2) and (3);

(f)section 219, provided that—

(i)where a court imposes a period of imprisonment in respect of both a fine and a confiscation order the amounts in respect of which the period is imposed must, for the purposes of subsection (2), be aggregated;

(ii)before imposing a period of imprisonment by virtue of that section the court must require a report from any administrator appointed in relation to the confiscation order as to whether and how he is likely to exercise his powers and duties under this Part and must take that report into account; and the court may, pending such exercise, postpone any decision as to such imposition; and

(iii)where an administrator has not been appointed in relation to the confiscation order, or where the accused does not ask under section 116 for time for payment of any confiscation order imposed by the court, the prosecutor may apply to the court to postpone the imposition of any period of imprisonment for a period not exceeding 3 months to enable the prosecutor to apply to the court for the appointment of an administrator;

(g)section 220, but as if the reference in subsection (1) to payment of a sum by the person included a reference to payment of the sum in respect of the person by an administrator appointed in relation to the confiscation order;

(h)section 221 [F423(other than subsection (3) and as if the words “Subject to subsection (3) below,” were omitted); but that section does not apply] where an administrator is appointed in relation to the confiscation order;

(i)section 222, except that for the purposes of that section “confiscation order” in subsection (1) above must be construed as including such an order within the meaning of the Drug Trafficking Act 1994 (c. 37), the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17)), the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)) or of Part 2 or 4 of this Act;

(j)section 223;

F424(k). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F425(2A)In its application in relation to confiscation orders, subsection (2) of section 219 of the Procedure Act is to be read as if for the Table in that subsection there were substituted the following Table—

Amount to be Paid under Compensation OrderMaximum Period of Imprisonment
£10,000 or less6 months
More than £10,000 but no more than £500,0005 years
More than £500,000 but no more than £1 million7 years
More than £1 million14 years

(2B)The Scottish Ministers may by order—

(a)amend section 219(2) of the Procedure Act (as applied by this section) so as to provide for minimum periods of imprisonment in respect of amounts ordered to be paid under a confiscation order;

(b)amend the Table in subsection (2A) so as to remove, alter or replace any entry (including an entry inserted by virtue of paragraph (a) of this subsection) or to add any entry;

(c)apply (with or without modifications) any provision of the Procedure Act relating to enforcement of fines in consequence of exercising the power in paragraph (a) or (b) (including modifying any such provision in its application in relation to confiscation orders by virtue of this section).

(2C)In its application in relation to a confiscation order under Part 2 of this Act, subsection (8) of section 222 of the Procedure Act is to be read as if, in relation to a transfer of fine order under section 90 of the Magistrates' Courts Act 1980, for “[F426129 of the Sentencing Code]” there were substituted “ 35(2A) of the Proceeds of Crime Act 2002 ”.

(2D)In its application in relation to a confiscation order under Part 4 of this Act, subsection (8) of section 222 of the Procedure Act is to be read as if—

(a)before the words “section 90” there were inserted “section 35 of the Criminal Justice Act (Northern Ireland) 1945,”;

(b)in relation to a transfer of fine order under section 35 of that Act, for “[F427129 of the Sentencing Code]” there were substituted “ 185(2A) of the Proceeds of Crime Act 2002 ”.]

(3)Where a court, by virtue of subsection (1), orders the amount ordered to be paid under a confiscation order to be recovered by civil diligence under section 221 of the Procedure Act, any arrestment executed by a prosecutor under subsection (3) of section 124 of this Act is to be treated as having been executed by the court as if that subsection authorised such execution.

(4)Subsection (5) applies where—

(a)a warrant for apprehension of the accused is issued for a default in payment of the amount ordered to be paid under a confiscation order in respect of an offence or offences, and

(b)at the time the warrant is issued the accused is liable to serve a period of imprisonment or detention (other than one of life imprisonment or detention for life) in respect of the offence (or any of the offences).

(5)In such a case any period of imprisonment or detention to which the accused is liable by virtue of section 219 of the Procedure Act runs from the expiry of the period of imprisonment or detention mentioned in subsection (4)(b).

Textual Amendments

F423Words in s. 118(2)(h) substituted (1.3.2016) by Serious Crime Act 2015 (c. 9), ss. 19(1)(a), 88(2)(a); S.S.I. 2016/11, reg. 2(d) (with reg. 3)

F424S. 118(2)(k) omitted (1.3.2016) by virtue of Serious Crime Act 2015 (c. 9), s. 88(2)(c), Sch. 4 para. 42; S.S.I. 2016/11, reg. 2(j) (with reg. 3)

F425S. 118(2A)-(2D) inserted (1.3.2016) by Serious Crime Act 2015 (c. 9), ss. 19(1)(b), 88(2)(a); S.S.I. 2016/11, reg. 2(d) (with reg. 3)

Modifications etc. (not altering text)

Commencement Information

I110S. 118 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

Restraint orders etcS

119 Conditions for exercise of powersS

(1)The court may exercise the powers conferred by section 120 if any of the following conditions is satisfied.

(2)The first condition is that—

(a)a criminal investigation has been instituted in Scotland with regard to an offence, and

(b)there [F428are reasonable grounds to suspect] that the alleged offender has benefited from his criminal conduct.

(3)The second condition is that—

(a)proceedings for an offence have been instituted in Scotland and not concluded, and

(b)there is reasonable cause to believe that the accused has benefited from his criminal conduct.

(4)The third condition is that—

(a)an application by the prosecutor has been made under section 104, 105, 111 or 112 and not concluded, or the court believes that such an application is to be made, and

(b)there is reasonable cause to believe that the accused has benefited from his criminal conduct.

(5)The fourth condition is that—

(a)an application by the prosecutor has been made under section 106 and not concluded, or the court believes that such an application is to be made, and

(b)there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the accused’s benefit exceeds the relevant amount (as defined in that section).

(6)The fifth condition is that—

(a)an application by the prosecutor has been made under section 107 and not concluded, or the court believes that such an application is to be made, and

(b)there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the available amount exceeds the relevant amount (as defined in that section).

(7)The second condition is not satisfied if the court believes that—

(a)there has been undue delay in continuing the proceedings, or

(b)the prosecutor does not intend to proceed.

(8)If an application mentioned in the third, fourth or fifth condition has been made the condition is not satisfied if the court believes that—

(a)there has been undue delay in continuing the application, or

(b)the prosecutor does not intend to proceed.

(9)If the first condition is satisfied—

(a)references in this Part to the accused are to the alleged offender;

(b)references in this Part to the prosecutor are to the person the court believes is to have conduct of any proceedings for the offence;

(c)section 144(8) has effect as if proceedings for the offence had been instituted against the accused when the investigation was instituted.

(10)In this section, sections 120 to 140 and Schedule 3 “the court” means—

(a)the Court of Session, where a trial diet or a diet fixed for the purposes of section 76 of the Procedure Act in proceedings for the offence or offences concerned is to be, is being or has been held in the High Court of Justiciary;

(b)the sheriff exercising his civil jurisdiction, where a diet referred to in paragraph (a) is to be, is being or has been held in the sheriff court.

Textual Amendments

F428Words in s. 119(2)(b) substituted (1.3.2016) by Serious Crime Act 2015 (c. 9), ss. 20(1), 88(2)(a); S.S.I. 2016/11, reg. 2(e)

Commencement Information

I111S. 119 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a) (with arts. 4, 7)

120 Restraint orders etcS

(1)If any condition set out in section 119 is satisfied the court may make an order (a restraint order) interdicting any specified person from dealing with any realisable property held by him.

(2)A restraint order may provide that it applies—

(a)to all realisable property held by the specified person whether or not the property is described in the order;

(b)to realisable property transferred to the specified person after the order is made.

(3)A restraint order may be made subject to exceptions, and an exception may in particular—

(a)make provision for reasonable living expenses and reasonable legal expenses;

(b)make provision for the purpose of enabling any person to carry on any trade, business, profession or occupation;

(c)be made subject to conditions.

(4)But an exception to a restraint order may not make provision for any legal expenses which—

(a)relate to an offence which falls within subsection (5), and

(b)are incurred by a person against whom proceedings for the offence have been instituted or by a recipient of a tainted gift.

(5)These offences fall within this subsection—

(a)the offence mentioned in section 119(2) or (3), if the first or second condition (as the case may be) is satisfied;

(b)the offence (or any of the offences) concerned, if the third, fourth or fifth condition is satisfied.

(6)The court may make such order as it believes is appropriate for the purpose of ensuring that the restraint order is effective.

[F429(6A)Subsections (6B) and (6C) apply where the court makes a restraint order (by virtue of the first condition in section 119) as a result of a criminal investigation having been instituted in Scotland with regard to an offence.

(6B)The court—

(a)must include in the order a requirement for the applicant for the order to report to the court on the progress of the investigation at such times and in such manner as the order may specify (a “reporting requirement”), and

(b)must recall the order if proceedings for the offence are not instituted within a reasonable time (and this duty applies whether or not an application to recall the order is made under section 121(5)).

(6C)The duty under subsection (6B)(a) does not apply if the court decides that, in the circumstances of the case, a reporting requirement should not be imposed, but the court—

(a)must give reasons for its decision, and

(b)may at any time vary the order so as to include a reporting requirement (and this power applies whether or not an application to vary the order is made under section 121(5)).]

(7)A restraint order does not affect property subject to a charge under—

(a)section 9 of the Drug Trafficking Offences Act 1986 (c. 32),

(b)Part 6 of the Criminal Justice Act 1988 (c. 33),

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17)),

(d)section 27 of the Drug Trafficking Act 1994 (c. 37), or

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

(8)Dealing with property includes removing the property from Scotland.

Textual Amendments

Commencement Information

I112S. 120 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a) (with arts. 4, 7)

[F430120ARestraint orders: power to retain seized property etc.S

(1)A restraint order may include provision authorising the detention of any property to which it applies if the property—

(a)is seized by an appropriate officer under a relevant seizure power, or

(b)is produced to an appropriate officer in compliance with a production order under section 380.

(2)Provision under subsection (1) may, in particular—

(a)relate to specified property, to property of a specified description or to all property to which the restraint order applies;

(b)relate to property that has already been seized or produced or to property that may be seized or produced in future.

(3)“Appropriate officer” means—

(a)a constable;

(b)an officer of Revenue and Customs;

[F431(ba)an immigration officer;]

[F432(c)a National Crime Agency officer;]

(4)“Relevant seizure power” means a power to seize property conferred by or by virtue of—

(a)section 127C or 387,

(b)a warrant granted under any other enactment or any rule of law, or

(c)any other enactment, or any rule of law, under which the authority of a warrant is not required.]

Textual Amendments

F431S. 120A(3)(ba) inserted (22.11.2014) by Crime and Courts Act 2013 (c. 22), Sch. 21 para. 20 (with Sch. 21 para. 40); S.I. 2014/3098, art. 2(e)

F432S. 120A(3)(c) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 115; S.I. 2013/1682, art. 3(v)

121 Application, recall and variationS

(1)This section applies to a restraint order.

(2)An order may be made on an ex parte application by the prosecutor, which may be heard in chambers.

(3)The prosecutor must intimate an order to every person affected by it.

(4)Subsection (3) does not affect the time when the order becomes effective.

(5)The prosecutor and any other person affected by the order may apply to the court to recall an order or to vary it; and subsections (6) to [F433(10)] apply in such a case.

(6)If an application under subsection (5) in relation to an order has been made but not determined, realisable property to which the order applies must not be realised.

(7)The court may—

(a)recall the order;

(b)vary the order.

(8)In the case of a restraint order, if the condition in section 119 which was satisfied was that proceedings were instituted or an application was made, the court must recall the order on the conclusion of the proceedings or of the application (as the case may be).

[F434(8A)The duty in subsection (8) to recall a restraint order on the conclusion of proceedings does not apply where—

(a)the proceedings are concluded by reason of—

(i)an accused's conviction for an offence being quashed under section 118(1)(c) of the Procedure Act, or

(ii)the setting aside of the verdict against the accused under section 183(1)(d) of the Procedure Act,

(b)the restraint order is in force at the time when the conviction is quashed or the verdict set aside (as the case may be), and

(c)the High Court of Justiciary has granted authority under section 118(1)(c) or 183(1)(d) of the Procedure Act to bring a new prosecution or the prosecutor has requested that the court grant such authority.

(8B)But the court must recall the restraint order—

(a)if the High Court of Justiciary refuses a request to grant authority under section 118(1)(c) or 183(1)(d) of the Procedure Act to bring a new prosecution,

(b)if the High Court of Justiciary has granted authority under section 118(1)(c) or 183(1)(d) of the Procedure Act to bring a new prosecution but no proceedings are commenced by the expiry of the time mentioned in section 119(5) or 185(5) of that Act (as the case may be), or

(c)otherwise, on the conclusion of the proceedings in the new prosecution of the accused under section 119 or 185 of the Procedure Act.]

[F435(9)In the case of a restraint order, if the condition in section 119 which was satisfied was that an investigation was instituted—

(a)the court must discharge the order if within a reasonable time proceedings for the offence are not instituted;

(b)otherwise, the court must recall the order on the conclusion of the proceedings.

(10)In the case of a restraint order, if the condition in section 119 which was satisfied was that an application was to be made—

(a)the court must discharge the order if within a reasonable time the application is not made;

(b)otherwise, the court must recall the order on the conclusion of the application.]

Textual Amendments

F435S. 121(9)(10) substituted for s. 121(9) (1.3.2016) by Serious Crime Act 2015 (c. 9), s. 88(2)(c), Sch. 4 para. 43(3); S.S.I. 2016/11, reg. 2(j)

Commencement Information

I113S. 121 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

122 AppealsS

(1)If on an application for a restraint order the court decides not to make one, the prosecutor may reclaim or appeal to the Court of Session against the decision.

(2)The prosecutor and any person affected by the order may reclaim or appeal to the Court of Session against the decision of the court on an application under section 121(5).

Commencement Information

I114S. 122 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

[F436122ADetention of property pending appealS

(1)This section applies where—

(a)a restraint order includes provision under section 120A authorising the detention of property, and

(b)the restraint order is recalled under section 121(7).

(2)This section also applies where—

(a)a restraint order includes provision under section 120A authorising the detention of property, and

(b)the restraint order is varied under section 121(7) so as to omit any such provision.

(3)The property may be detained until there is no further possibility of an appeal against (or review of)—

(a)the decision to recall or vary the restraint order, or

(b)any decision made on an appeal against (or review of) that decision.]

Textual Amendments

123 Inhibition of property affected by orderS

(1)On the application of the [F437prosecutor, the court ] may, in relation to the property mentioned in subsection (2), grant warrant for inhibition against any person specified in a restraint order.

(2)That property is the heritable realisable property to which the restraint order applies (whether generally or such of it as is specified in the application).

(3)The warrant for inhibition—

(a)has effect as if granted on the dependence of an action for debt by the [F438prosecutor] against the person and may be executed, recalled, loosed or restricted accordingly, and

[F439(b)must forthwith be registered by the prosecutor in the Register of Inhibitions]

(4)Section 155 of the Titles to Land Consolidation (Scotland) Act 1868 (c. 101) (effective date of inhibition) applies in relation to an inhibition for which warrant is granted under subsection (1) F440....

(5)The execution of an inhibition under this section in respect of property does not prejudice the exercise of an administrator’s powers under or for the purposes of this Part in respect of that property.

(6)An inhibition executed under this section ceases to have effect when, or in so far as, the restraint order ceases to apply in respect of the property in relation to which the warrant for inhibition was granted.

(7)If an inhibition ceases to have effect to any extent by virtue of subsection (6) the [F441 prosecutor] must—

(a)apply for the recall or, as the case may be, the restriction of the inhibition, and

(b)ensure that the recall or restriction is reflected in the Register of Inhibitions and Adjudications.

Textual Amendments

F437Words in s. 123(1) substituted (22.4.2009) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), s. 227(3), sch. 5 para. 29(a) (with s. 223); S.S.I. 2009/67, art. 3(2)(3), sch. 1 (with arts. 4-6) (as amended (31.1.2011) by S.S.I. 2011/31, art. 5(b))

F438Word in s. 123(3)(a) substituted (22.4.2009) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), s. 227(3), sch. 5 para. 29(b)(i) (with s. 223); S.S.I. 2009/67, art. 3(2)(3), sch. 1 (with arts. 4-6) (as amended (31.1.2011) by S.S.I. 2011/31, art. 5(b))

F439S. 123(3)(b) substituted (22.4.2009) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), s. 227(3), sch. 5 para. 29(b)(ii) (with s. 223); S.S.I. 2009/67, art. 3(2)(3), sch. 1 (with arts. 4-6) (as amended (31.1.2011) by S.S.I. 2011/31, art. 5(b))

F440Words in s. 123(4) repealed (22.4.2009) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), s. 227(3), sch. 6 Pt. 1 (with s. 223); S.S.I. 2009/67, art. 3(2)(3), sch. 2 (with arts. 4-6) (as amended (31.1.2011) by S.S.I. 2011/31, art. 5(b))

F441Word in s. 123(7) substituted (22.4.2009) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), s. 227(3), sch. 5 para. 29(c) (with s. 223); S.S.I. 2009/67, art. 3(2)(3), sch. 1 (with arts. 4-6) (as amended (31.1.2011) by S.S.I. 2011/31, art. 5(b))

Modifications etc. (not altering text)

Commencement Information

I115S. 123 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

124 Arrestment of property affected by orderS

(1)On the application of the prosecutor the court may, in relation to moveable realisable property to which a restraint order applies (whether generally or such of it as is specified in the application), grant warrant for arrestment.

(2)Such a warrant for arrestment may be granted only if the property would be arrestable if the person entitled to it were a debtor.

(3)A warrant under subsection (1) has effect as if granted on the dependence of an action for debt at the instance of the prosecutor against the person and may be executed, recalled, loosed or restricted accordingly.

(4)The execution of an arrestment under this section in respect of property does not prejudice the exercise of an administrator’s powers under or for the purposes of this Part in respect of that property.

(5)An arrestment executed under this section ceases to have effect when, or in so far as, the restraint order ceases to apply in respect of the property in relation to which the warrant for arrestment was granted.

(6)If an arrestment ceases to have effect to any extent by virtue of subsection (5) the prosecutor must apply to the court for an order recalling, or as the case may be, restricting the arrestment.

Modifications etc. (not altering text)

Commencement Information

I116S. 124 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

125 Management administratorsS

(1)If the court makes a restraint order it may at any time, on the application of the prosecutor—

(a)appoint an administrator to take possession of any realisable property to which the order applies and (in accordance with the court’s directions) to manage or otherwise deal with the property;

(b)order a person who has possession of property in respect of which an administrator is appointed to give him possession of it.

(2)An appointment of an administrator may be made subject to conditions or exceptions.

(3)Where the court makes an order under subsection (1)(b), the clerk of court must notify the accused and any person subject to the order of the making of the order.

(4)Any dealing of the accused or any such person in relation to property to which the order applies is of no effect in a question with the administrator unless the accused or, as the case may be, that person had no knowledge of the administrator’s appointment.

(5)The court—

(a)may order a person holding an interest in realisable property to which the restraint order applies to make to the administrator such payment as the court specifies in respect of a beneficial interest held by the accused or the recipient of a tainted gift;

(b)may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

(6)The court must not—

(a)confer the power mentioned in subsection (1) to manage or otherwise deal with the property, or

(b)exercise the power conferred on it by subsection (5),

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

(7)The court may order that a power conferred by an order under this section is subject to such conditions and exceptions as it specifies.

(8)Managing or otherwise dealing with property includes—

(a)selling the property or any part of it or interest in it;

(b)carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

(c)incurring capital expenditure in respect of the property.

(9)Subsections (1)(b) and (5) do not apply to property for the time being subject to a charge under—

(a)section (9) of the Drug Trafficking Offences Act 1986 (c. 32);

(b)section 78 of the Criminal Justice Act 1988 (c. 33);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));

(d)section 27 of the Drug Trafficking Act 1994 (c. 37);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

Commencement Information

I117S. 125 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

F442126 SeizureS

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

Textual Amendments

Commencement Information

I118S. 126 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

127 Restraint orders: restriction on proceedings and remediesS

(1)While a restraint order has effect, the court may sist any action, execution or any legal process in respect of the property to which the order applies.

(2)If a court (whether the Court of Session or any other court) in which proceedings are pending in respect of any property is satisfied that a restraint order has been made or applied for or made in respect of the property, the court may either sist the proceedings or allow them to continue on any terms it thinks fit.

(3)Before exercising any power conferred by subsection (2), the court must give an opportunity to be heard to—

(a)the applicant for the restraint order;

(b)any administrator appointed under section 125.

Commencement Information

I119S. 127 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

[F443Search and seizure powersS

Textual Amendments

F443Ss. 127A-127R and cross-heading inserted (22.11.2014 for the insertion of ss. 127A, 127G, 127R for specified purposes, 1.6.2015 in so far as not already in force) by Policing and Crime Act 2009 (c. 26), ss. 56(2), 116(1); S.I. 2014/3101, art. 3; S.I. 2015/983, art. 2(2)(a)

127ASections 127B to 127R: meaning of “appropriate officer”S

In sections 127B to 127R “appropriate officer” means—

(a)an officer of Revenue and Customs, or

[F444(aa)an immigration officer, or]

(b)a constable.

Textual Amendments

127BConditions for exercise of powersS

(1)An appropriate officer may exercise the power conferred by section 127C if satisfied that any of the following conditions is met.

(2)The first condition is that—

(a)a criminal investigation has been started in Scotland with regard to an indictable offence,

(b)[F445a person has been arrested for the offence,]

(c)proceedings for the offence have not yet been started against the person in Scotland,

(d)there [F446are reasonable grounds to suspect] that the person has benefited from conduct constituting the offence, and

(e)a restraint order is not in force in respect of any realisable property.

(3)The second condition is that—

(a)a criminal investigation has been started in Scotland with regard to an indictable offence,

(b)[F447a person has been arrested for the offence,]

(c)proceedings for the offence have not yet been started against the person in Scotland, and

(d)a restraint order is in force in respect of any realisable property.

(4)The third condition is that—

(a)proceedings for an indictable offence have been started in Scotland and have not been concluded,

(b)there is reasonable cause to believe that the accused has benefited from conduct constituting the offence, and

(c)a restraint order is not in force in respect of any realisable property.

(5)The fourth condition is that—

(a)proceedings for an indictable offence have been started in Scotland and have not been concluded, and

(b)a restraint order is in force in respect of any realisable property.

(6)The fifth condition is that—

(a)an application by the prosecutor has been made under section 104, 105, 111 or 112 and not concluded, or the officer believes that such an application is to be made, and

(b)there is reasonable cause to believe that the accused has benefited from criminal conduct.

(7)The sixth condition is that—

(a)an application by the prosecutor has been made under section 106 and not concluded, or the officer believes that such an application is to be made, and

(b)there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the accused's benefit exceeds the relevant amount (as defined in that section).

(8)The seventh condition is that—

(a)an application by the prosecutor has been made under section 107 and not concluded, or the officer believes that such an application is to be made, and

(b)there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the available amount exceeds the relevant amount (as defined in that section).

(9)The third or fourth condition is not met if the officer believes that—

(a)there has been undue delay in continuing the proceedings, or

(b)the prosecutor does not intend to proceed.

(10)If an application mentioned in the fifth, sixth or seventh condition has been made the condition is not met if the officer believes that—

(a)there has been undue delay in continuing the application, or

(b)the prosecutor does not intend to proceed.

(11)In relation to the first or second condition references in sections 127C to 127R to the accused are to the person mentioned in that condition.

(12)In relation to the first or second condition section 144(8) has effect as if proceedings for the offence had been started against the accused when the investigation was started.

Textual Amendments

F445S. 127B(2)(b) omitted (26.10.2023 for specified purposes) by virtue of Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 8 para. 20(a)

F446Words in s. 127B(2)(d) substituted (1.3.2016) by Serious Crime Act 2015 (c. 9), ss. 22(1), 88(2)(a); S.S.I. 2016/11, reg. 2(g)

F447S. 127B(3)(b) omitted (26.10.2023 for specified purposes) by virtue of Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 20(b)

127CPower to seize propertyS

(1)On being satisfied as mentioned in section 127B(1) an appropriate officer may seize any realisable property if the officer has reasonable grounds for suspecting that—

(a)the property may otherwise be made unavailable for satisfying any confiscation order that has been or may be made against the accused, or

(b)the value of the property may otherwise be diminished as a result of conduct by the accused or any other person.

(2)But the officer may not [F448under subsection (1)] seize—

(a)cash, or

(b)exempt property.

(3)“Cash” has the same meaning as in section 289.

(4)“Exempt property” means—

(a)such tools, books, vehicles and other items of equipment as are necessary to the accused for use personally in the accused's employment, business or vocation;

(b)such clothing, bedding, furniture, household equipment, provisions or other things as are necessary for satisfying the basic domestic needs of the accused and the accused's family.

(5)In relation to realisable property which is free property held by the recipient of a tainted gift, references in subsection (4) to the accused are to be read as references to the recipient of that gift.

Section 127B(11) is subject to this subsection.

[F449(5A)On being satisfied as mentioned in section 127B(1) an appropriate officer may seize any free property if the officer has reasonable grounds for suspecting that it is a cryptoasset-related item.

(5B)A “cryptoasset-related item” is an item of property that is, or that contains or gives access to information that is, likely to assist in the seizure under subsection (1) of any cryptoasset.

(5C)The circumstances in which a cryptoasset is “seized” for the purposes of subsection (1) include circumstances in which it is transferred into a crypto wallet controlled by the appropriate officer.

(5D)If an appropriate officer is lawfully on any premises, the officer may, for the purpose of—

(a)determining whether any property is a cryptoasset-related item, or

(b)enabling or facilitating the seizure under subsection (1) of any cryptoasset,

require any information which is stored in any electronic form and accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible, or from which it can readily be produced in a visible and legible form.

(5E)But subsection (5D) does not authorise an appropriate officer to require a person to produce any items subject to legal privilege (as defined in section 412).

(5F)Where an appropriate officer has seized a cryptoasset-related item under subsection (5A), they may use any information obtained from it for the purpose of—

(a)identifying or gaining access to a crypto wallet, and

(b)by doing so, enabling or facilitating the seizure under subsection (1) of any cryptoassets.]

(6)The power conferred by this section—

(a)may be exercised only with the appropriate approval under section 127G unless, in the circumstances, it is not practicable to obtain that approval before exercising the power, and

[F450(aa)where applicable, in accordance with subsection (6A) or (6B).]

[F451(6A)The power conferred by this section is exercisable] by an officer of Revenue and Customs only if the officer has reasonable grounds for suspecting that conduct constituting the relevant offence relates to an assigned matter (within the meaning of the Customs and Excise Management Act 1979).

[F452(6B)The power conferred by this section is exercisable by an immigration officer only if the officer has reasonable grounds for suspecting that conduct constituting the relevant offence—

(a)relates to the entitlement of one or more persons who are not nationals of the United Kingdom to enter, transit across, or be in, the United Kingdom (including conduct which relates to conditions or other controls on any such entitlement), or

(b)is undertaken for the purposes of, or otherwise in relation to, a relevant nationality enactment.]

(7)“Relevant offence” means—

(a)in a case where the officer is satisfied that the first, second, third or fourth condition in section 127B is met, the offence mentioned in that condition,

(b)in a case where the officer is satisfied that any of the other conditions in section 127B is met, the offence (or any of the offences) concerned.

[F453(8)Relevant nationality enactment” means any enactment in—

(a)the British Nationality Act 1981,

(b)the Hong Kong Act 1985,

(c)the Hong Kong (War Wives and Widows) Act 1996,

(d)the British Nationality (Hong Kong) Act 1997,

(e)the British Overseas Territories Act 2002, or

(f)an instrument made under any of those Acts.]

Textual Amendments

F448Words in s. 127C(2) inserted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 21(2)

F449S. 127C(5A)-(5F) inserted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 21(3)

127DSearch power: premisesS

(1)If an appropriate officer is lawfully on any premises the officer may search the premises for the purpose of finding any property which—

(a)the officer has reasonable grounds for suspecting may be found there, and

(b)if found there, the officer intends to seize under section 127C.

(2)The power conferred by this section may be exercised only with the appropriate approval under section 127G unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

(3)“Premises” has the meaning given by section 23 of the Police and Criminal Evidence Act 1984.

127ESearch power: peopleS

(1)An appropriate officer may exercise the following powers if the officer has reasonable grounds for suspecting that a person is carrying property that may be seized under section 127C.

(2)The officer may, so far as the officer thinks it necessary or expedient for the purpose of seizing the property under that section, require the person—

(a)to permit a search of any article with the person,

(b)to permit a search of the person.

(3)An officer exercising a power under subsection (2) may detain the person for so long as is necessary for its exercise.

(4)A power conferred by this section may be exercised only with the appropriate approval under section 127G unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

(5)This section does not require a person to submit to an intimate search or strip search (within the meaning of section 164 of the Customs and Excise Management Act 1979).

127FSearch power: vehiclesS

(1)The powers specified in subsection (4) are exercisable if—

(a)an appropriate officer has reasonable grounds for suspecting that a vehicle contains property that may be seized under section 127C, and

(b)it appears to the officer that the vehicle is under the control of a person who is in or in the vicinity of the vehicle.

(2)The powers are exercisable only if the vehicle is—

(a)in any place to which, at the time of the proposed exercise of the powers, the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission, or

(b)in any other place to which at that time people have ready access but which is not a dwelling.

(3)But if the vehicle is in a garden or yard or other land occupied with and used for the purposes of a dwelling, the officer may exercise the powers under subsection (4) only if the officer has reasonable grounds for believing—

(a)that the person does not reside in the dwelling, and

(b)that the vehicle is not in the place in question with the express or implied permission of another who resides in the dwelling.

(4)The officer may, so far as the officer thinks it necessary or expedient for the purpose of seizing the property under section 127C, require the person to—

(a)permit entry to the vehicle,

(b)permit a search of the vehicle.

(5)An officer exercising a power under subsection (4) may detain the vehicle for so long as is necessary for its exercise.

(6)A power conferred by this section may be exercised only with the appropriate approval under section 127G unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

127G“Appropriate approval”S

(1)This section has effect for the purposes of sections 127C, 127D, 127E and 127F.

(2)The appropriate approval, in relation to the exercise of a power by an appropriate officer, means the approval of the sheriff or (if that is not practicable in any case) the approval of a senior officer.

(3)A senior officer means—

(a)in relation to the exercise of a power by an officer of Revenue and Customs, an officer of Revenue and Customs of a rank designated by the Commissioners for Her Majesty's Revenue and Customs as equivalent to that of a senior police officer,

[F454(aa)in relation to the exercise of a power by an immigration officer, an immigration officer of a rank designated by the Secretary of State as equivalent to that of a senior police officer,]

[F455(ab)in relation to the exercise of a power by a National Crime Agency officer, the Director General of the National Crime Agency or any other National Crime Agency officer authorised by the Director General (whether generally or specifically) for this purpose,]

(b)in relation to the exercise of a power by a constable, a senior police officer.

(4)A senior police officer means a police officer of at least the rank of inspector.

Textual Amendments

127HExercise of powers without judicial approvalS

(1)An appropriate officer must give a written report to the appointed person in any case where—

(a)the officer seizes property under section 127C without the approval of the sheriff, and

(b)any of the property seized is not detained for more than 48 hours.

(2)An appropriate officer must also give a written report to the appointed person in any case where—

(a)the officer exercises any of the powers conferred by sections 127D, 127E and 127F without the approval of the sheriff, and

(b)no property is seized under section 127C.

(3)A report under this section must give particulars of the circumstances which led the officer to believe that—

(a)the powers were exercisable, and

(b)it was not practicable to obtain the approval of the sheriff.

(4)The appointed person means a person appointed for the purposes of this subsection by the Scottish Ministers.

(5)The appointed person must not be a person employed under or for the purposes of the Scottish Administration; and the terms and conditions of appointment, including any remuneration or expenses to be paid, are to be determined by the Scottish Ministers.

(6)The period of 48 hours mentioned in subsection (1)(b) is to be calculated in accordance with subsection (7).

(7)In calculating a period of 48 hours in accordance with this subsection, no account is to be taken of—

(a)any Saturday or Sunday,

(b)Christmas Day,

(c)Good Friday,

(d)any day that is a bank holiday under the Banking and Financial Dealings Act 1971 in Scotland, or

(e)any day prescribed under section 8(2) of the Criminal Procedure (Scotland) Act 1995 as a court holiday in a sheriff court in the sheriff court district within which the power is exercised.

127IReport by appointed person on exercise of powersS

(1)As soon as possible after the end of each financial year, the person appointed under section 127H(4) must prepare a report for that year.

(2)“Financial year” means—

(a)the period beginning with the day on which section 56 of the Policing and Crime Act 2009 comes into force and ending with the next 31 March (which is the first financial year), and

(b)each subsequent period of twelve months beginning with 1 April.

(3)The report must give the appointed person's opinion as to the circumstances and manner in which the powers conferred by sections 127C, 127D, 127E and 127F are being exercised in cases where the officer who exercised them is required to give a report under section 127H.

(4)The report may make any recommendations the appointed person considers appropriate.

(5)The appointed person must send a copy of the report to the Scottish Ministers.

(6)The Scottish Ministers must—

(a)publish any report received under subsection (5), and

(b)lay a copy before the Scottish Parliament.

(7)Before acting under subsection (6) the Scottish Ministers must exclude from the report any matter which the Scottish Ministers think is likely to prejudice any criminal investigation or criminal proceedings.

(8)If the Scottish Ministers exclude any matter from the report they must comply with subsection (6) in relation to the whole of the report as soon as they think that the excluded matter is no longer likely to prejudice any criminal investigation or criminal proceedings.

127JInitial detention of seized propertyS

(1)This section applies if an appropriate officer seizes property under section 127C.

(2)The property may be detained initially for a period of 48 hours.

(3)The period of 48 hours is to be calculated in accordance with section 127H(7).

127KFurther detention pending making of restraint orderS

(1)This section applies if—

(a)property is detained under section 127J, and

(b)no restraint order is in force in respect of the property.

(2)If within the period mentioned in section 127J an application is made for a restraint order which includes provision under section 120A authorising detention of the property, the property may be detained until the application is determined or otherwise disposed of.

(3)If such an application is made within that period and the application is refused, the property may be detained until there is no further possibility of an appeal against (or review of)—

(a)the decision to refuse the application, or

(b)any decision made on an appeal against (or review of) that decision.

(4)In subsection (2) the reference to the period mentioned in section 127J includes that period as extended by any order under section 127M.

[F456(5)Exempt property seized under section 127C(5A) may be detained under subsections (2) and (3) only with the approval of a senior officer.

(6)In subsection (5)—

  • “exempt property” has the meaning given in section 127C(4) (reading references there to the accused as references to the person by whom the property is held);

  • “senior officer” has the meaning given in section 127G(3) (and for this purpose, the powers under subsections (2) and (3) to detain property are to be treated as exercised by the appropriate officer who seized the property).]

Textual Amendments

F456S. 127K(5)(6) inserted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 23

127LFurther detention pending variation of restraint orderS

(1)This section applies if—

(a)property is detained under section 127J,

(b)a restraint order is in force in respect of the property, and

(c)the order does not include provision under section 120A authorising the detention of the property.

(2)If within the period mentioned in section 127J an application is made for the order to be varied so as to include provision under section 120A authorising detention of the property, the property may be detained until the application is determined or otherwise disposed of.

(3)If such an application is made within that period and the application is refused, the property may be detained until there is no further possibility of an appeal against (or review of)—

(a)the decision to refuse the application, or

(b)any decision made on an appeal against (or review of) that decision.

[F457(4)Exempt property seized under section 127C(5A) may be detained under subsections (2) and (3) only with the approval of a senior officer.

(5)In subsection (4)—

  • “exempt property” has the meaning given in section 127C(4) (reading references there to the accused as references to the person by whom the property is held);

  • “senior officer” has the meaning given in section 127G(3) (and for this purpose, the powers under subsections (2) and (3) to detain property are to be treated as exercised by the appropriate officer who seized the property).]

Textual Amendments

F457S. 127L(4)(5) inserted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 24

127MFurther detention in other casesS

(1)This section applies if—

(a)property is detained under section 127J,

(b)no restraint order is in force in respect of the property, and

(c)no application has been made for a restraint order which includes provision under section 120A authorising detention of the property.

(2)The sheriff may by order extend the period for which the property or any part of it may be detained under section 127J if satisfied that—

(a)any of the conditions in section 127B is met (reading references in that section to the officer as references to the sheriff),

(b)the property or part is realisable property other than exempt property [F458(within the meaning of section 127C(4))], and

(c)there are reasonable grounds for suspecting that—

(i)the property may otherwise be made unavailable for satisfying any confiscation order that has been or may be made against the accused, or

(ii)the value of the property may otherwise be diminished as a result of conduct by the accused or any other person.

[F459(2A)The sheriff may by order extend the period for which the property may be detained under section 127J if satisfied that—

(a)any of the conditions in section 127B is met (reading references in that section to the officer as references to the sheriff),

(b)the property is free property, and

(c)there are reasonable grounds for suspecting that the property is a cryptoasset-related item.

(2B)An order under subsection (2A) may not be made in respect of exempt property unless the sheriff is satisfied that the person applying for the order is working diligently and expeditiously—

(a)to determine whether the property is a cryptoasset-related item, or

(b)if it has already been determined to be such an item, to seize any related cryptoassets under section 127C(1).

(2C)An order under subsection (2A) may not extend the period for which the property may be detained beyond the period of—

(a)six months beginning with the date of the order, or

(b)in the case of exempt property, 14 days beginning with that date.

This does not prevent the period from being further extended by another order under this section.

(2D)The period of 14 days referred to in subsection (2C)(b) is to be calculated in accordance with section 127H(7) (reading the reference there to 48 hours as a reference to 14 days).]

(3)An application for an order may be made by—

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

[F460(aa)an immigration officer;]

(b)a constable, or

(c)the prosecutor.

(4)If the property was seized in reliance on the first or second condition in section 127B, “the prosecutor” means a person who is to have conduct of any proceedings for the offence.

(5)An order under this section must provide for notice to be given to persons affected by it.

(6)In this section—

  • [F461“exempt property” has the meaning given in section 127C(4) (reading references there to the accused as references to the person by whom the property is held);]

  • “part” includes portion.

Textual Amendments

F458Words in s. 127M(2)(b) omitted (26.10.2023 for specified purposes) by virtue of Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 25(2)

F459S. 127M(2A)-(2D) inserted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 25(3)

F461Words in s. 127M(6) inserted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 25(4)

127NDischarge, variation and lapse of detention orderS

(1)An order under section 127M may be discharged or varied.

(2)An application for variation or discharge of the order may be made by—

(a)a person mentioned in section 127M(3), or

(b)any person affected by the order.

(3)On an application under this section the sheriff must discharge the order if—

(a)the order was made on the ground that the first or second condition in section 127B was met but proceedings for the offence mentioned in that condition have not been started within a reasonable time,

(b)the order was made on the ground that the third or fourth condition in section 127B was met but proceedings for the offence mentioned in that condition have now been concluded,

(c)the order was made on the ground that the fifth, sixth or seventh condition in section 127B was met but the application mentioned in that condition has now been concluded or, as the case may be, has not been made within a reasonable time.

(4)An order made under section 127M lapses if a restraint order is made in respect of the property to which it relates (but provision authorising detention of the property may have been included in the restraint order by virtue of section 120A).

127OAppealsS

(1)If on an application for an order under section 127M the sheriff decides not to make an order, a person mentioned in subsection (3) of that section may appeal to the Court of Session against the decision.

(2)If an application is made under section 127N in relation to an order the following persons may appeal to the Court of Session in respect of the sheriff's decision on the application—

(a)a person mentioned in section 127M(3), or

(b)any person affected by the order.

(3)An appeal under this section must be made before the end of the period of 21 days starting with the day on which the order was made.

(4)On an appeal under this section the Court of Session may—

(a)make or (as the case may be) discharge the order, or

(b)vary the order.

127PDetention of property pending section 127O appealS

(1)This section applies where—

(a)an application for an order under section 127M is made within the period mentioned in section 127J, and

(b)the application is refused.

(2)This section also applies where—

(a)an order is made under section 127M extending the period for which property may be detained under section 127J, and

(b)the order is discharged or varied so that detention of the property is no longer authorised by virtue of the order.

(3)The property may be detained until there is no further possibility of an appeal against the decision to refuse the application or discharge or vary the order (as the case may be).

127QRelease of propertyS

(1)This section applies in relation to property which—

(a)has been seized by an appropriate officer under section 127C, and

(b)is detained under or by virtue of any of sections 127J to 127M and 127P.

(2)The property must be released if at any time an appropriate officer decides that the detention condition is no longer met.

(3)The detention condition is met for so long as—

(a)any of the conditions in section 127B is met, and

(b)there are reasonable grounds for the suspicion mentioned in section 127C(1) [F462or (5A)].

(4)Nothing in this section requires property to be released if there is a power to detain it otherwise than under or by virtue of sections 127J to 127M and 127P.

(5)Nothing in this section affects the operation of any power or duty to release property that arises apart from this section.

[F463(6)If a cryptoasset-related item which has been released is not claimed within the period of a year beginning with the date on which it was released, the appropriate officer may—

(a)retain the item and deal with it as they see fit,

(b)dispose of the item, or

(c)destroy the item.

(7)The powers in subsection (6) may be exercised only—

(a)where the appropriate officer has taken reasonable steps to notify—

(i)the person from whom the item was seized, and

(ii)any other persons who the appropriate officer has reasonable grounds to believe have an interest in the item,

that the item has been released, and

(b)with the approval of a senior officer.

(8)“Senior officer” in subsection (7)(b) has the meaning given in section 127G(3).

(9)Any proceeds of a disposal of the item are to be paid into the Scottish Consolidated Fund.]

Textual Amendments

Guidance about search and seizure and detention of propertyS

127RGuidance by Lord AdvocateS

(1)The Lord Advocate may issue guidance in connection with—

(a)the carrying out by appropriate officers of the functions conferred by sections 127C to 127H,

(b)the carrying out by senior officers of their functions under section 127G, and

(c)the detention of property under or by virtue of sections 120A, 122A and 127J to 127P.

(2)The Lord Advocate must publish any guidance issued under this section.]

Realisation of property: generalS

128 Enforcement administratorsS

(1)This section applies if—

(a)a confiscation order is made,

(b)it is not satisfied, and

(c)it is not subject to appeal.

(2)In such a case the court may on the application of the prosecutor exercise the powers conferred on it by this section.

(3)The court may appoint an administrator in respect of realisable property.

(4)An appointment of an administrator may be made subject to conditions or exceptions.

(5)The court may confer the powers mentioned in subsection (6) on an administrator appointed under subsection (3) above.

(6)Those powers are—

(a)power to take possession of any realisable property;

(b)power to manage or otherwise deal with the property;

(c)power to realise any realisable property, in such manner as the court may specify.

[F464(d)so far as the property consists of cryptoassets, power to destroy the property.]

(7)The court may order any person who has possession of realisable property to give possession of it to an administrator referred to in subsection (5).

(8)The clerk of court must notify the accused and any person subject to an order under subsection (7) of the making of the order.

(9)Any dealing of the accused or any such person in relation to property to which the order applies is of no effect in a question with the administrator unless the accused or, as the case may be, that person had no knowledge of the administrator’s appointment.

(10)The court—

(a)may order a person holding an interest in realisable property to make to the administrator such payment as the court specifies in respect of a beneficial interest held by the accused or the recipient of a tainted gift;

(b)may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

(11)The court must not—

(a)confer the power mentioned in subsection (6)(b) [F465or (c)] [F465, (c) or (d)] in respect of property, or

(b)exercise the power conferred on it by subsection (10) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

(12)Managing or otherwise dealing with property includes—

(a)selling the property or any part of it or interest in it;

(b)carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

(c)incurring capital expenditure in respect of the property.

(13)The court may order that a power conferred by an order under this section is subject to such conditions and exceptions as it specifies.

[F466(13A)The court may confer the power mentioned in subsection (6)(d) only where—

(a)it is not reasonably practicable to realise the cryptoassets in question, or

(b)there are reasonable grounds to believe that the realisation of the cryptoassets would be contrary to the public interest, having regard in particular to how likely it is that the entry of the cryptoassets into general circulation would facilitate criminal conduct by any person.

(13B)An order conferring that power—

(a)must set out the court’s assessment of the market value of the cryptoassets to which it relates;

(b)may confer power to destroy the cryptoassets only to the extent that their market value, as set out in the order, is less than or equal to the amount remaining to be paid under the confiscation order.

(13C)If the administrator destroys any cryptoassets in the exercise of that power, the accused is to be treated as having paid, towards satisfaction of the confiscation order, an amount equal to the market value, as set out in the order, of the cryptoassets which have been destroyed.]

(14)Subsection (6) does not apply to property for the time being subject to a charge under—

(a)section 9 of the Drug Trafficking Offences Act 1986 (c. 32);

(b)section 78 of the Criminal Justice Act 1988 (c. 33);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 199/2588 (N.I. 17));

(d)section 27 of the Drug Trafficking Act 1994 (c. 37);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

Textual Amendments

F465Words in s. 128(11)(a) substituted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 27(3)

F466S. 128(13A)-(13C) inserted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 27(4)

Commencement Information

I120S. 128 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

129 Management administrators: dischargeS

(1)This section applies if—

(a)an administrator stands appointed under section 125 in respect of realisable property (the management administrator), and

(b)the court appoints an administrator under section 128.

(2)The court must order the management administrator to transfer to the other administrator all property held by him by virtue of the powers conferred on him by section 125.

(3)If the management administrator complies with an order under subsection (2) he is discharged—

(a)from his appointment under that section,

(b)from any obligation under this Act arising from his appointment.

Commencement Information

I121S. 129 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

130 Application of sums by enforcement administratorS

(1)This section applies to sums which—

(a)are in the hands of an administrator appointed under section 128(3), and

(b)fall within subsection (2).

(2)These sums fall within this subsection—

(a)the proceeds of the realisation of property under section 128(6)(c);

(b)any sums (other than those mentioned in paragraph (a)) in which the accused holds an interest.

(3)The sums must be applied as follows—

(a)first, they must be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under this subsection by virtue of section 432;

(b)second, they must be applied in making any payments as directed by the court;

(c)third, they must be applied on the accused’s behalf towards satisfaction of the confiscation order.

(4)If the amount payable under any confiscation order has been fully paid and any sums remain in the administrator’s hands he must distribute them—

(a)among such persons who held (or hold) interests in the property concerned as the court directs, and

(b)in such proportions as it directs.

(5)Before making a direction under subsection (4) the court must give persons who held (or hold) interests in the property concerned a reasonable opportunity to make representations to it.

(6)For the purposes of subsections (4) and (5) the property concerned is—

(a)the property represented by the proceeds mentioned in subsection (2)(a);

(b)the sums mentioned in subsection (2)(b).

(7)The administrator applies sums as mentioned in subsection (3)(c) by paying them to the appropriate clerk of court on account of the amount payable under the order.

(8)The appropriate clerk of court is the sheriff clerk of the sheriff court responsible for enforcing the confiscation order under section 211 of the Procedure Act as applied by section 118(1) of this Act.

Commencement Information

I122S. 130 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

131 Sums received by clerk of courtS

(1)This section applies if a clerk of court receives sums on account of the amount payable under a confiscation order (whether the sums are received under section 130 or otherwise).

(2)The clerk of court’s receipt of the sums reduces the amount payable under the order, but he must apply the sums received as follows.

(3)First he must apply them in payment of such expenses incurred by a person acting as an insolvency practitioner as—

(a)are payable under this subsection by virtue of section 432, but

(b)are not already paid under section 130(3)(a) [F467 or 131D(2)(a)] .

(4)If the Lord Advocate has reimbursed the administrator in respect of remuneration or expenses under section 133 the clerk of court must next apply the sums in reimbursing the Lord Advocate.

(5)If the clerk of court received the sums under section 130 [F468 or 131D] he must next apply them in payment of the administrator’s remuneration and expenses.

[F469(5A)If the clerk of court received the sums from an appropriate officer under section 130 or 131D, the clerk of court must next apply them in payment to an appropriate officer of any amount to which the officer is entitled by virtue of section 131B.]

(6)If a direction was made under section 97(6) [F470or 97A(4)] for an amount of compensation to be paid out of sums recovered under the confiscation order, the clerk of court must next apply the sums in payment of that amount.

[F471(6A)If a direction was made under section 97A(2) or (4) for an amount payable under a restitution order or a victim surcharge under section 253F(2) of the Procedure Act to be paid out of sums recovered under the confiscation order, the clerk of court must next apply the sums in payment of that amount.]

(7)If any amount remains after the clerk of court makes any payments required by the preceding provisions of this section, the amount must be disposed of in accordance with section 211(5) or (6) of the Procedure Act as applied by section 118(1) of this Act.

Textual Amendments

F470Words in s. 131(6) inserted (25.11.2019 for specified purposes, 10.2.2021 in so far as not already in force) by Serious Crime Act 2015 (c. 9), s. 88(2)(c), Sch. 4 para. 44(a); S.S.I. 2019/281, reg. 2; S.S.I. 2020/407, reg. 2(1)(c)

F471S. 131(6A) inserted (25.11.2019 for specified purposes, 10.2.2021 in so far as not already in force) by Serious Crime Act 2015 (c. 9), s. 88(2)(c), Sch. 4 para. 44(b); S.S.I. 2019/281, reg. 2; S.S.I. 2020/407, reg. 2(1)(c)

Commencement Information

I123S. 131 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

[F472[F473Seized money][F473Enforcement: money, cryptoassets and personal property]S

Textual Amendments

F472S. 131ZA and cross-heading inserted (S.) (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 28, 58(2)(6); S.S.I. 2017/456, reg. 2(a)

F473S. 131ZA cross-heading substituted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 33

131ZA[F474Seized money] [F474Money]S

(1)This section applies to money which—

(a)is held by a person, and

(b)is held in an account maintained by the person with a [F475bank or building society] [F475relevant financial institution].

(2)This section also applies to money which is held by a person and which—

(a)has been seized under a relevant seizure power by a constable or another person lawfully exercising the power, and

(b)is being detained in connection with a criminal investigation or prosecution or with an investigation of a kind mentioned in section 341.

(3)But this section applies to money only so far as the money is free property.

(4)Subsection (5) applies if—

(a)a confiscation order is made against a person holding money to which this section applies, and

(b)an administrator has not been appointed under section 128 in relation to the money.

(5)The relevant court may order the appropriate person to pay, within such period as the court may specify, the money or a portion of it specified by the court to the appropriate clerk of court on account of the amount payable under the confiscation order.

(6)An order under subsection (5) may be made—

(a)on the application of the prosecutor, or

(b)by the relevant court of its own accord.

(7)The Scottish Ministers may by regulations amend this section so that it applies by virtue of subsection (1) not only to money held in an account maintained with a [F476bank or building society] [F476relevant financial institution] but also to—

(a)money held in an account maintained with a financial institution of a specified kind, or

(b)money that is represented by, or may be obtained from, a financial instrument or product of a specified kind.

(8)Regulations under subsection (7) may amend this section so that it makes provision about realising an instrument or product within subsection (7)(b) or otherwise obtaining money from it.

(9)In this section—

  • “appropriate clerk of court”, in relation to a confiscation order, means the sheriff clerk of the sheriff court responsible for enforcing the confiscation order under section 211 of the Procedure Act as applied by section 118(1);

  • “appropriate person” means—

    (a)

    in a case where the money is held in an account maintained with [F477a bank or building society, the bank or building society] [F477a relevant financial institution, the relevant financial institution] ;

    (b)

    in any other case, the person on whose authority the money is detained;

  • “bank” means an authorised deposit-taker, other than a building society, that has its head office or a branch in the United Kingdom;

  • “building society” has the same meaning as in the Building Societies Act 1986;

  • [F478“electronic money institution” has the same meaning as in the Electronic Money Regulations 2011 (S.I. 2011/99) (see regulation 2 of those Regulations);]

  • [F478“payment institution” means an authorised payment institution or a small payment institution (each as defined in regulation 2 of the Payment Services Regulations 2017 (S.I. 2017/752));]

  • “relevant court”, in relation to a confiscation order, means—

    (a)

    the court which makes the confiscation order, or

    (b)

    the sheriff court responsible for enforcing the confiscation order under section 211 of the Procedure Act as applied by section 118(1);

  • [F478“relevant financial institution” means a bank, a building society, an electronic money institution or a payment institution;]

  • “relevant seizure power” means a power to seize money conferred by or by virtue of—

    (a)

    a warrant granted under any enactment or rule of law, or

    (b)

    any enactment, or rule of law, under which the authority of a warrant is not required.

(10)In the definition of “bank” in subsection (9), “authorised deposit-taker” means—

(a)a person who has permission under Part 4A of the Financial Services and Markets Act 2000 to accept deposits;

(b)a person who—

(i)is specified, or is within a class of persons specified, by an order under section 38 of that Act (exemption orders), and

(ii)accepts deposits;

F479(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11)A reference in subsection (10) to a person F480... with permission to accept deposits does not include a person F480... with permission to do so only for the purposes of, or in the course of, an activity other than accepting deposits.]

Textual Amendments

F474S. 131ZA heading substituted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 28(5)

F475Words in s. 131ZA(1)(b) substituted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 28(2)

F476Words in s. 131ZA(7) substituted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 28(3)

F477Words in s. 131ZA(9) substituted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 28(4)(a)

F478Words in s. 131ZA(9) inserted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 28(4)(b)

[F481131ZBCryptoassetsS

(1)This section applies to cryptoassets which—

(a)are held by a person, and

(b)are held in a crypto wallet administered by a UK-connected cryptoasset service provider,

but only so far as the cryptoassets are free property.

(2)Subsection (3) applies if—

(a)a confiscation order is made against a person holding cryptoassets to which this section applies, and

(b)an administrator has not been appointed under section 128 in relation to the cryptoassets.

(3)The sheriff may order the UK-connected cryptoasset service provider which administers the crypto wallet in which the cryptoassets are held—

(a)to realise the cryptoassets, or a portion of the cryptoassets having a specified value,

(b)to pay the proceeds of that realisation to the appropriate clerk of court on account of, and up to a maximum of, the amount payable under the confiscation order, and

(c)to the extent that the proceeds of the realisation exceed the amount payable under the confiscation order, to pay the excess to an appropriate officer identified in the order.

(4)In subsection (3)—

  • “appropriate clerk of court” means the sheriff clerk of the sheriff court responsible for enforcing the confiscation order under section 211 of the Procedure Act as applied by section 118(1);

  • “appropriate officer” has the same meaning as in section 120A.

(5)An order under subsection (3) may be made—

(a)on the application of the prosecutor, or

(b)by the sheriff of the sheriff’s own accord.

(6)Where a UK-connected cryptoasset service provider—

(a)is required by an order under subsection (3) to realise a portion of cryptoassets having a specified value, but

(b)on realising cryptoassets under the order, obtains proceeds of an amount which differs from that value,

it does not fail to comply with the order solely because of that difference in value, provided that it took reasonable steps to obtain proceeds equal to the value specified.

Textual Amendments

F481Ss. 131ZB, 131ZC inserted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 29

131ZCMeaning of “UK-connected cryptoasset service provider”S

(1)“UK-connected cryptoasset service provider” in section 131ZB means a cryptoasset service provider which—

(a)is acting in the course of business carried on by it in the United Kingdom,

(b)has terms and conditions with the persons to whom it provides services which provide for a legal dispute to be litigated in the courts of a part of the United Kingdom,

(c)holds in the United Kingdom any data relating to the persons to whom it provides services, or

(d)meets the condition in subsection (2).

(2)The condition in this subsection is that—

(a)the cryptoasset service provider has its registered office or, if it does not have one, its head office in the United Kingdom, and

(b)the day-to-day management of the provider’s business is the responsibility of that office or another establishment maintained by it in the United Kingdom.

(3)“Cryptoasset service provider” in subsections (1) and (2) includes a cryptoasset exchange provider and a custodian wallet provider; and for this purpose—

  • “cryptoasset exchange provider” means a firm or sole practitioner who by way of business provides one or more of the following services, including where the firm or sole practitioner does so as creator or issuer of any of the cryptoassets involved—

    (a)

    exchanging, or arranging or making arrangements with a view to the exchange of, cryptoassets for money or money for cryptoassets;

    (b)

    exchanging, or arranging or making arrangements with a view to the exchange of, one cryptoasset for another;

    (c)

    operating a machine which utilises automated processes to exchange cryptoassets for money or money for cryptoassets;

  • “custodian wallet provider” means a firm or sole practitioner who by way of business provides services to safeguard, or to safeguard and administer—

    (a)

    cryptoassets on behalf of its customers, or

    (b)

    private cryptographic keys on behalf of its customers in order to hold, store and transfer cryptoassets.

(4)In the definition of “cryptoasset exchange provider” in subsection (3), “cryptoasset” includes a right to, or interest in, a cryptoasset.

(5)The Secretary of State may by regulations amend the definitions in subsection (3) (including by amending subsection (4)).

(6)The Secretary of State must consult the Scottish Ministers before making regulations under subsection (5).]

Textual Amendments

F481Ss. 131ZB, 131ZC inserted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 29

[F482[F483Seized personal property]S

Textual Amendments

F482Ss. 131A-131D and cross-heading inserted (1.6.2015) by Policing and Crime Act 2009 (c. 26), ss. 59(2), 116(1); S.I. 2015/983, art. 2(2)(a)

F483S. 131A cross-heading omitted (26.10.2023 for specified purposes) by virtue of Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 34

131ASeized personal propertyS

(1)This section applies to moveable property which is held by a person and which—

(a)has been seized by an appropriate officer under a relevant seizure power, or

(b)has been produced to an appropriate officer in compliance with a production order under section 380.

(2)This section applies if the following conditions are satisfied—

(a)a confiscation order is made against the person by whom the property is held;

(b)an administrator has not been appointed under section 128 in relation to the property;

(c)any period allowed under section 116 for payment of the amount ordered to be paid under the confiscation order has ended.

(3)In such a case the sheriff may by order authorise an appropriate officer to realise the property.

(4)In this section “appropriate officer” and “relevant seizure power” have the same meaning as in section 120A.

[F484131AADestruction of seized cryptoassetsS

(1)This section applies to cryptoassets which are held by a person and which have been seized by an appropriate officer under a relevant seizure power.

(2)The sheriff may by order authorise an appropriate officer to destroy the cryptoassets if—

(a)a confiscation order is made against the person by whom the cryptoassets are held,

(b)an administrator has not been appointed under section 128 in relation to the cryptoassets, and

(c)either—

(i)it is not reasonably practicable to realise the cryptoassets, or

(ii)there are reasonable grounds to believe that the realisation of the cryptoassets would be contrary to the public interest, having regard in particular to how likely it is that the entry of the cryptoassets into general circulation would facilitate criminal conduct by any person.

(3)An order under this section may be made—

(a)on the application of the prosecutor, or

(b)by the sheriff of the sheriff’s own accord.

(4)An order under this section—

(a)must set out the sheriff’s assessment of the market value of the cryptoassets to which it relates;

(b)may authorise the destruction of cryptoassets only to the extent that their market value, as set out in the order, is less than or equal to the amount remaining to be paid under the confiscation order.

(5)Before making an order under this section, the sheriff must give persons who hold interests in the cryptoassets a reasonable opportunity to make representations to it.

(6)If cryptoassets held by a person are destroyed following an order under this section, the person is to be treated as having paid, towards satisfaction of the confiscation order, an amount equal to the market value, as set out in the order, of the cryptoassets which have been destroyed.

(7)In this section “appropriate officer” and “relevant seizure power” have the same meaning as in section 120A.]

Textual Amendments

131BCosts of storage and realisationS

(1)This section applies if the sheriff makes an order under section 131A.

(2)The sheriff may determine an amount which may be recovered by the appropriate officer in respect of reasonable costs incurred in—

(a)storing or insuring the property since it was seized or produced as mentioned in subsection (1) of that section;

(b)realising the property.

(3)If the sheriff makes a determination under this section the appropriate officer is entitled to payment of the amount under section 131(5A).

(4)A determination under this section may be made on the same occasion as the section 131A order or on any later occasion; and more than one determination may be made in relation to any case.

(5)In this section “appropriate officer” has the same meaning as in section 120A.

131CSections [F485131A and] [F485131ZB to] 131B: appealsS

(1)If a sheriff decides not to make an order under section [F486131A] [F486131A(3)], an appropriate officer may appeal to the Court of Session.

[F487(1A)If a sheriff decides not to make an order under section 131ZB(3) or 131AA(2), the prosecutor may appeal to the Court of Session.]

(2)If a sheriff makes an order under section [F488131A] [F488131ZB(3), 131A(3) or 131AA(2)], a person affected by the order may appeal to the Court of Session.

(3)But the person mentioned in section [F489131A(2)(a)] [F489131ZB(2)(a), 131A(2)(a) or 131AA(2)(a) (as applicable)] may not appeal.

(4)An appropriate officer may appeal to the Court of Session against—

(a)a determination made by a sheriff under section 131B;

(b)a decision by a sheriff not to make a determination under that section.

(5)An appeal under this section must be made before the end of the period of 21 days starting with the day on which the decision or (as the case may be) the order was made.

(6)On an appeal under this section the Court of Session may—

(a)confirm, quash or vary the decision or (as the case may be) the order, or

(b)make such order as Court of Session believes is appropriate.

(7)In this section “appropriate officer” has the same meaning as in section 120A.

Textual Amendments

F485Words in s. 131C heading substituted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 31(6)

131DProceeds of realisationS

(1)This section applies to sums which—

(a)are in the hands of an appropriate officer, and

(b)are the proceeds of the realisation of property under section [F490131ZB or] 131A.

(2)The sums must be applied as follows—

(a)first, they must be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under this subsection by virtue of section 432;

(b)second, they must be applied in making any payments directed by the sheriff;

(c)third, they must be paid to the appropriate clerk of court on account of the amount payable under the confiscation order.

(3)If the amount payable under the confiscation order has been fully paid and any sums remain in the appropriate officer's hands, the appropriate officer must distribute them—

(a)among such persons who held (or hold) interests in the property represented by the proceeds as the sheriff directs, and

(b)in such proportions as the sheriff directs.

(4)Before making a direction under subsection (3) the sheriff must give persons who held (or hold) interests in the property a reasonable opportunity to make representations to the sheriff.

(5)In this section—

(a)“appropriate officer” has the same meaning as in section 120A;

(b)“appropriate clerk of court” means the sheriff clerk of the sheriff court responsible for enforcing the confiscation order under section 211 of the Procedure Act as applied by section 118(1).]

Textual Amendments

F490Words in s. 131D(1)(b) inserted (26.10.2023 for specified purposes) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(4)(a), Sch. 8 para. 32

Exercise of powersS

132 Powers of court and administrator [F491etc] S

(1)This section applies to—

(a)the powers conferred on a court by sections 119 to [F492131D], 134 to 136 and Schedule 3;

(b)the powers of an administrator appointed under section 125 or 128(3).

[F493(c)the powers conferred on appropriate officers by sections 127C to 127L;

(d)the powers conferred on senior officers by section 127G.]

(2)The powers—

(a)must be exercised with a view to the value for the time being of realisable property being made available (by the property’s realisation) for satisfying any confiscation order that has been or may be made against the accused;

(b)must be exercised, in a case where a confiscation order has not been made, with a view to securing that there is no diminution in the value of realisable property or of the proceeds of realisation;

(c)must be exercised without taking account of any obligation of the accused or a recipient of a tainted gift if the obligation conflicts with the object of satisfying any confiscation order that has been or may be made against the accused;

(d)may be exercised in respect of a debt owed by the Crown.

[F494(2A)Subsection (2)(a) does not apply to—

(a)the power conferred on a court by paragraph (d) of section 128(6) (which enables the court to give an administrator the power to destroy cryptoassets),

(b)a power conferred on an administrator by virtue of that paragraph, or

(c)the power conferred on the sheriff by section 131AA (power to order destruction of cryptoassets).]

(3)Subsection (2) has effect subject to the following rules—

(a)the powers must be exercised with a view to allowing a person other than the accused or a recipient of a tainted gift to retain or recover the value of any interest held by him;

(b)in the case of realisable property held by a recipient of a tainted gift, the powers must be exercised with a view to realising no more than the value for the time being of the gift;

(c)in a case where a confiscation order has not been made against the accused, property must not be realised if the court so orders under subsection (4).

(4)If on an application by the accused or by the recipient of a tainted gift the court decides that property cannot be replaced it may order that it must not be sold.

(5)An order under subsection (4) may be revoked or varied.

Textual Amendments

Modifications etc. (not altering text)

C40Pt. 3 applied by 2000 c. 11, Sch. 8 para. 34(3A) (as substituted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), s. 458(1), Sch. 11 para. 39(5); S.S.I. 2003/210, art. 2(1)(b)(2), sch. (with art. 7))

Commencement Information

I124S. 132 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

Administrators: generalS

133 Protection of administratorsS

(1)If an administrator appointed under section 125 or 128(3)—

(a)takes action in relation to property which is not realisable property,

(b)would be entitled to take the action if it were realisable property, and

(c)believes on reasonable grounds that he is entitled to take the action,

he is not liable to any person in respect of any loss or damage resulting from the action, except so far as the loss or damage is caused by his negligence.

(2)Subsection (3) applies if an administrator incurs expenses in the exercise of his functions at a time when—

(a)a confiscation order has not been made, or

(b)a confiscation order has been made but the administrator has recovered no money.

(3)As soon as is practicable after they have been incurred the expenses must be reimbursed by the Lord Advocate.

(4)Subsection (5) applies if—

(a)an amount is due in respect of the administrator’s remuneration and expenses, but

(b)nothing (or not enough) is available to be applied in payment of them under section 131(4).

(5)The remuneration and expenses must be paid (or must be paid to the extent of the shortfall) by the Lord Advocate.

Commencement Information

I125S. 133 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

134 Protection of persons affectedS

(1)This section applies where an administrator is appointed under section 125 or 128(3).

(2)The following persons may apply to the court—

(a)any person affected by action taken by the administrator;

(b)any person who may be affected by action the administrator proposes to take.

(3)On an application under this section the court may make such order as it thinks appropriate.

Commencement Information

I126S. 134 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

135 Recall and variation of orderS

(1)The prosecutor, an administrator and any other person affected by an order made under section 125 or 128 may apply to the court to vary or recall the order.

(2)On an application under this section the court—

(a)may vary the order;

(b)may recall the order.

(3)But in the case of an order under section 125—

(a)if the condition in section 119 which was satisfied was that proceedings were started or an application was made, the court must recall the order on the conclusion of the proceedings or of the application (as the case may be);

(b)if the condition which was satisfied was that an investigation was started or an application was to be made, the court must recall the order if within a reasonable time proceedings for the offence are not started or the application is not made (as the case may be).

Commencement Information

I127S. 135 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

136 AppealsS

(1)If on an application for an order under section 125 or 128 the court decides not to make one, the prosecutor may appeal to the Court of Session against the decision.

(2)If the court makes an order under section 125 or 128 the following persons may appeal to the Court of Session in respect of the court’s decision—

(a)the prosecutor;

(b)any person affected by the order.

(3)If on an application for an order under section 134 the court decides not to make one, the person who applied for the order may appeal to the Court of Session against the decision.

(4)If the court makes an order under section 134, the following persons may appeal to the Court of Session in respect of the court’s decision—

(a)the person who applied for the order;

(b)any person affected by the order;

(c)the administrator.

(5)The following persons may appeal to the Court of Session against a decision of the court on an application under section 135—

(a)the person who applied for the order in respect of which the application was made;

(b)any person affected by the court’s decision;

(c)the administrator.

(6)On an appeal under this section the Court of Session may—

(a)confirm the decision, or

(b)make such order as it believes is appropriate.

Commencement Information

I128S. 136 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

137 Administrators: further provisionS

Schedule 3, which makes further provision about administrators appointed under section 125 and 128(3), has effect.

Commencement Information

I129S. 137 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

138 Administrators: restriction on proceedings and remediesS

(1)Where an administrator is appointed under section 128, the court may sist any action, execution or other legal process in respect of the property to which the order appointing the administrator relates.

(2)If a court (whether the Court of Session or any other court) in which proceedings are pending in respect of any property is satisfied that an application has been made for the appointment of an administrator or that an administrator has been appointed in relation to that property, the court may either sist the proceedings or allow them to continue on any terms it thinks fit.

(3)Before exercising any power conferred by subsection (2) the court must give an opportunity to be heard to—

(a)the prosecutor;

(b)if appointed, the administrator.

Commencement Information

I130S. 138 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

CompensationS

139 Serious defaultS

(1)If the following three conditions are satisfied the court may order the payment of such compensation as it thinks is just.

(2)The first condition is satisfied if a criminal investigation has been instituted with regard to an offence and proceedings are not instituted for the offence.

(3)The first condition is also satisfied if proceedings for an offence are instituted against a person and—

(a)they do not result in his conviction for the offence, or

(b)he is convicted of the offence but the conviction is quashed or he is pardoned in respect of it.

(4)If subsection (2) applies the second condition is that—

(a)in the criminal investigation there has been a serious default by a person mentioned in subsection (9), and

(b)the investigation would not have continued if the default had not occurred.

(5)If subsection (3) applies the second condition is that—

(a)in the criminal investigation with regard to the offence or in its prosecution there has been a serious default by a person mentioned in subsection (9), and

(b)the proceedings would not have been instituted or continued if the default had not occurred.

(6)The third condition is that an application is made under this section by a person who held realisable property and has suffered loss in consequence of anything done in relation to it by or in pursuance of an order under this Part.

(7)The offence referred to in subsection (2) may be one of a number of offences with regard to which the investigation is instituted.

(8)The offence referred to in subsection (3) may be one of a number of offences for which the proceedings are instituted.

(9)Compensation under this section is payable to the applicant and—

(a)if the person in default was a constable of a police force (within the meaning of the Police (Scotland) Act 1967 (c. 77)), the compensation is payable by the [F495Scottish Police Authority];

[F496(aa)if the person in default was a constable of the Police Service of Scotland, the compensation is payable by the Scottish Police Authority,]

(b)if the person in default was a constable not falling within paragraph (a), the compensation is payable by the body under whose authority he acts;

(c)if the person in default was a procurator fiscal or was acting on behalf of the Lord Advocate, the compensation is payable by the Lord Advocate;

[F497(ca)if the person in default was a [F498National Crime Agency officer], the compensation is payable by [F499the National Crime Agency];]

(d)if the person in default was a customs officer, the compensation is payable by the Commissioners of Customs and Excise;

(e)if the person in default was an officer of the Commissioners of Inland Revenue, the compensation is payable by those Commissioners.

(10)Nothing in this section affects any delictual liability in relation to a serious default.

Textual Amendments

F498Words in s. 139(9)(ca) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 116(a); S.I. 2013/1682, art. 3(v)

F499Words in s. 139(9)(ca) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 116(b); S.I. 2013/1682, art. 3(v)

Commencement Information

I131S. 139 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

140 Confiscation order varied or dischargedS

(1)This section applies if—

(a)the court varies a confiscation order under section 113 or discharges one under section 114, and

(b)an application is made to the court by a person who held realisable property and has suffered loss as a result of the making of the order.

(2)The court may order the payment to the applicant of such compensation as it believes is just.

(3)Compensation payable under this section is payable by the Lord Advocate.

Commencement Information

I132S. 140 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

Enforcement abroadS

141 Enforcement abroadS

(1)This section applies if—

(a)any of the conditions in section 119 are satisfied,

(b)the prosecutor believes that realisable property is situated in a country or territory outside the United Kingdom (the receiving country), and

(c)the prosecutor sends a request for assistance to the Secretary of State with a view to it being forwarded under this section.

(2)In a case where no confiscation order has been made, a request for assistance is a request to the government of the receiving country to secure that any person is prohibited from dealing with realisable property.

(3)In a case where a confiscation order has been made and has not been satisfied, discharged or quashed, a request for assistance is a request to the government of the receiving country to secure that—

(a)any person is prohibited from dealing with realisable property,

(b)realisable property is realised and the proceeds are applied in accordance with the law of the receiving country.

(4)No request for assistance may be made for the purposes of this section in a case where a confiscation order has been made and has been satisfied, discharged or quashed.

(5)If the Secretary of State believes it is appropriate to do so he may forward the request for assistance to the government of the receiving country.

(6)If property is realised in pursuance of a request under subsection (3) the amount ordered to be paid under the confiscation order must be taken to be reduced by an amount equal to the proceeds of the realisation.

(7)A certificate purporting to be issued by or on behalf of the requested government is sufficient evidence of the facts it states if it states—

(a)that the property has been realised in pursuance of a request under subsection (3),

(b)the date of realisation, and

(c)the proceeds of realisation.

(8)If the proceeds of realisation made in pursuance of a request under subsection (3) are expressed in a currency other than sterling, they must be taken to be the sterling equivalent calculated in accordance with the rate of exchange prevailing at the end of the day of realisation.

Commencement Information

I133S. 141 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

InterpretationS

142 Criminal lifestyleS

(1)An accused has a criminal lifestyle if (and only if) the offence (or any of the offences) concerned satisfies any of these tests—

(a)it is specified in Schedule 4;

(b)it constitutes conduct forming part of a course of criminal activity;

(c)it is an offence committed over a period of at least six months and the accused has benefited from the conduct which constitutes the offence.

(2)Conduct forms part of a course of criminal activity if the accused has benefited from the conduct and—

(a)in the proceedings in which he was convicted he was convicted of three or more other offences, each of three or more of them constituting conduct from which he has benefited, or

(b)in the period of six years ending with the day when those proceedings were instituted (or, if there is more than one such day, the earliest day) he was convicted on at least two separate occasions of an offence constituting conduct from which he has benefited.

(3)But an offence does not satisfy the test in subsection (1)(b) or (c) unless the accused obtains relevant benefit of not less than [F500£1000].

(4)Relevant benefit for the purposes of subsection (1)(b) is—

(a)benefit from conduct which constitutes the offence;

(b)benefit from any other conduct which forms part of the course of criminal activity and which constitutes an offence of which the accused has been convicted.

(5)Relevant benefit for the purposes of subsection (1)(c) is benefit from conduct which constitutes the offence.

(6)The Scottish Ministers may by order amend Schedule 4.

(7)The Scottish Ministers may by order vary the amount for the time being specified in subsection (3).

Textual Amendments

F500Sum in s. 142(3) substituted (with application in accordance with art. 2 of the amending S.S.I.) by The Proceeds of Crime Act 2002 Amendment (Scotland) Order 2011 (S.S.I. 2011/231), arts. 1, 3

Commencement Information

I134S. 142 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a) (with art. 5)

143 Conduct and benefitS

(1)Criminal conduct is conduct which—

(a)constitutes an offence in Scotland, or

(b)would constitute such an offence if it had occurred in Scotland.

(2)General criminal conduct of the accused is all his criminal conduct, and it is immaterial—

(a)whether conduct occurred before or after the passing of this Act;

(b)whether property constituting a benefit from conduct was obtained before or after the passing of this Act.

(3)Particular criminal conduct of the accused is all his criminal conduct which falls within the following paragraphs—

(a)conduct which constitutes the offence or offences concerned;

(b)conduct which constitutes offences of which he was convicted in the same proceedings as those in which he was convicted of the offence or offences concerned.

(4)A person benefits from conduct if he obtains property as a result of or in connection with the conduct.

(5)If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage.

(6)References to property or a pecuniary advantage obtained in connection with conduct include references to property or a pecuniary advantage obtained both in that connection and in some other.

(7)If a person benefits from conduct his benefit is the value of the property obtained.

Commencement Information

I135S. 143 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a) (with art. 6)

144 Tainted gifts and their recipientsS

(1)Subsections (2) and (3) apply if—

(a)no court has made a decision as to whether the accused has a criminal lifestyle, or

(b)a court has decided that the accused has a criminal lifestyle.

(2)A gift is tainted if it was made by the accused at any time after the relevant day.

(3)A gift is also tainted if it was made by the accused at any time and was of property—

(a)which was obtained by the accused as a result of or in connection with his general criminal conduct, or

(b)which (in whole or part and whether directly or indirectly) represented in the accused’s hands property obtained by him as a result of or in connection with his general criminal conduct.

(4)Subsection (5) applies if a court has decided that an accused does not have a criminal lifestyle.

(5)A gift is tainted if it was made by the accused at any time after—

(a)the date on which the offence concerned was committed, or

(b)if his particular criminal conduct consists of two or more offences and they were committed on different dates, the earliest of those dates.

(6)For the purposes of subsection (5) an offence which is a continuing offence is committed on the first occasion when it is committed.

(7)A gift may be a tainted gift whether it was made before or after the passing of this Act.

(8)The relevant day is the first day of the period of six years ending with—

(a)the day when proceedings for the offence concerned were instituted against the accused, or

(b)if there are two or more offences and proceedings for them were instituted on different days, the earliest of those days.

(9)If the accused transfers property to another person (whether directly or indirectly) for a consideration whose value is significantly less than the value of the property at the time of the transfer, he is to be treated as making a gift.

(10)If subsection (9) applies the property given is to be treated as such share in the property transferred as is represented by the fraction—

(a)whose numerator is the difference between the two values mentioned in subsection (9), and

(b)whose denominator is the value of the property at the time of the transfer.

(11)References to a recipient of a tainted gift are to a person to whom the accused has (whether directly or indirectly) made the gift.

Commencement Information

I136S. 144 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

145 Value: the basic ruleS

(1)This section applies for the purpose of deciding the value at any time of property then held by a person.

(2)Its value is the market value of the property at that time.

(3)But if at that time another person holds an interest in the property its value, in relation to the person mentioned in subsection (1), is the market value of his interest at that time ignoring any charging order under a provision listed in subsection (4).

(4)The provisions are—

(a)section 9 of the Drug Trafficking Offences Act 1986 (c. 32);

(b)section 78 of the Criminal Justice Act 1988 (c. 33);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 199/2588 (N.I. 17));

(d)section 27 of the Drug Trafficking Act 1994 (c. 37);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

(5)This section has effect subject to sections 146 and 147.

Commencement Information

I137S. 145 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

146 Value of property obtained from conductS

(1)This section applies for the purpose of deciding the value of property obtained by a person as a result of or in connection with his criminal conduct; and the material time is the time the court makes its decision.

(2)The value of the property at the material time is the greater of the following—

(a)the value of the property (at the time the person obtained it) adjusted to take account of later changes in the value of money;

(b)the value (at the material time) of the property found under subsection (3).

(3)The property found under this subsection is—

(a)if the person holds the property obtained, that property;

(b)if he holds no part of the property obtained, any property which directly or indirectly represents it in his hands;

(c)if he holds part of the property obtained, that part and any property which directly or indirectly represents the other part in his hands.

(4)The references in subsection (2)(a) and (b) to the value are to the value found in accordance with section 145.

Commencement Information

I138S. 146 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

147 Value of tainted giftsS

(1)The value at any time (the material time) of a tainted gift is the greater of the following—

(a)the value (at the time of the gift) of the property given, adjusted to take account of later changes in the value of money;

(b)the value (at the material time) of the property found under subsection (2).

(2)The property found under this subsection is—

(a)if the recipient holds the property given, that property;

(b)if the recipient holds no part of the property given, any property which directly or indirectly represents it in his hands;

(c)if the recipient holds part of the property given, that part and any property which directly or indirectly represents the other part in his hands.

(3)The references in subsection (1)(a) and (b) to the value are to the value found in accordance with section 145.

Commencement Information

I139S. 147 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

148 Free propertyS

[F501(1)Property is free unless it falls within subsection (2) or (3).]

[F502(2)][F503Property falls within this subsection if] an order is in force in respect of it under—

(a)section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders),

(b)Article 11 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15) (deprivation orders),

(c)Part 2 of the Proceeds of Crime (Scotland) Act 1995 (c. 43) (forfeiture of property used in crime),

(d)section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) [F504or Chapter 4 of Part 7 of the Sentencing Code] (deprivation orders),

(e)section 23 [F505, 23A] or 111 of the Terrorism Act 2000 (c. 11) (forfeiture orders), F506...

[F507(ea)paragraph 3(2), 6(2), 10D(1), 10G(2), 10J(3), 10S(2) [F508, 10Z2(3), 10Z7AG(1), 10Z7BB(2), 10Z7CA(3), 10Z7CE(3) or 10Z7DG(3)] of Schedule 1 to the Anti-terrorism, Crime and Security Act 2001, or]

(f)section [F509 245A,] 246, [F510255A, 256,] 266, 295(2) [F511, 298(2), 303L(1), 303O(3), 303R(3), 303Z3[F512, 303Z14(4), 303Z32(1), 303Z37(2), 303Z41(4), 303Z45(3) or 303Z60(4)]] of this Act.

[F513(3)Property falls within this subsection if—

(a)it has been forfeited in pursuance of a forfeiture notice under section 297A [F514or an account forfeiture notice under section 303Z9];

(b)it is detained under section 297C [F515297D [F516, 298(4) or 303O(9)]].

[F517(ba)it is detained under section 303Z30, 303Z31 or 303Z32 in a case where section 303Z42(2) applies;

(bb)it is detained under section 303Z57 or 303Z58 in a case where section 303Z60(6) applies;]

[F518(c)it is the forfeitable property in relation to an order under section 303Q(1) [F519or 303Z44(1)].]

[F520(d)it has been forfeited in pursuance of a cash forfeiture notice under paragraph 5A of Schedule 1 to the Anti-terrorism, Crime and Security Act 2001 or an account forfeiture notice under paragraph 10W of that Schedule;

(e)it is detained under paragraph 5B, 5C, 9A or 10G(7) of that Schedule;

[F521(ea)it is detained under paragraph 10Z7AE, 10Z7AF or 10Z7AG of that Schedule in a case where paragraph 10Z7CB(2) of that Schedule applies;

(eb)it is detained under paragraph 10Z7DD or 10Z7DE of that Schedule in a case where paragraph 10Z7DG(5) of that Schedule applies;]

(f)it is the forfeitable property in relation to an order under paragraph 10I(1) [F522or 10Z7CD(1)] of that Schedule.]]

Textual Amendments

F502S. 148(2): s. 148 renumbered as s. 148(2) (1.6.2015) by Policing and Crime Act 2009 (c. 26), s. 116(1), Sch. 7 para. 103(3); S.I. 2015/983, arts. 2(2)(e), 3(ff)

F506Word in s. 148(2)(e) omitted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by virtue of Criminal Finances Act 2017 (c. 22), ss. 34(3)(a)(i), 58(2)(6); S.S.I. 2017/456, reg. 2(d); S.I. 2018/78, reg. 3(r)

F507S. 148(2)(ea) inserted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 34(3)(a)(ii), 58(2)(6); S.S.I. 2017/456, reg. 2(d); S.I. 2018/78, reg. 3(r)

F508Words in s. 148(2)(ea) substituted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 4(3)(a)(i); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

F511Words in s. 148(2)(f) substituted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 24(2); S.I. 2018/78, reg. 5(3)(a)(i)(ii)

F512Words in s. 148(2)(f) substituted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 4(3)(a)(ii); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

F514Words in s. 148(3)(a) inserted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 24(3)(a); S.I. 2018/78, reg. 5(3)(a)(i)(ii)

F515Words in s. 148(3)(b) substituted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 34(3)(b), 58(2)(6); S.S.I. 2017/456, reg. 2(d); S.I. 2018/78, reg. 3(r)

F516Words in s. 148(3)(b) substituted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 24(3)(b); S.I. 2018/78, reg. 5(3)(a)(i)(ii)

F517S. 148(3)(ba)(bb) inserted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 4(3)(b)(i); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

F518S. 148(3)(c) inserted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 24(3)(c); S.I. 2018/78, reg. 5(3)(a)(i)(ii)

F519Words in s. 148(3)(c) inserted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 4(3)(b)(ii); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

F520S. 148(3)(d)-(f) inserted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 34(3)(c), 58(2)(6); S.S.I. 2017/456, reg. 2(d); S.I. 2018/78, reg. 3(r)

F521S. 148(3)(ea)(eb) inserted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 4(3)(b)(iii); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

F522Words in s. 148(3)(f) inserted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 4(3)(b)(iv); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

Commencement Information

I140S. 148 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

149 Realisable propertyS

Realisable property is—

(a)any free property held by the accused;

(b)any free property held by the recipient of a tainted gift.

Commencement Information

I141S. 149 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

150 Property: general provisionsS

(1)Property is all property wherever situated and includes—

(a)money;

(b)all forms of property whether heritable or moveable and whether corporeal or incorporeal.

(2)The following rules apply in relation to property—

(a)property is held by a person if he holds an interest in it;

(b)property is obtained by a person if he obtains an interest in it;

(c)property is transferred by one person to another if the first one transfers or grants an interest in it to the second;

(d)references to property held by a person include references to his property vested in his F523... trustee in bankruptcy or liquidator[F524or in the trustee or interim trustee in the sequestration, under the Bankruptcy (Scotland) Act 2016), of his estate];

(e)references to an interest held by a person beneficially in property include references to an interest which would be held by him beneficially if the property were not so vested;

(f)references to an interest, in relation to land in England, Wales or Northern Ireland, are to any legal estate or equitable interest or power;

(g)references to an interest, in relation to land in Scotland, are to any estate, interest, servitude or other heritable right in or over land, including a heritable security;

(h)references to an interest, in relation to property other than land, include references to a right (including a right to possession).

Textual Amendments

Modifications etc. (not altering text)

Commencement Information

I142S. 150 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

[F525150ACryptoassets etcS

(1)“Cryptoasset” means a cryptographically secured digital representation of value or contractual rights that uses a form of distributed ledger technology and can be transferred, stored or traded electronically.

(2)“Crypto wallet” means—

(a)software,

(b)hardware,

(c)a physical item, or

(d)any combination of the things mentioned in paragraphs (a) to (c),

which is used to store the cryptographic private key that allows cryptoassets to be accessed.

(3)“Cryptoasset-related item” has the meaning given in section 127C(5B).

(4)The circumstances in which a cryptoasset is taken to be “destroyed” include circumstances where it is—

(a)disposed of,

(b)transferred, or

(c)otherwise dealt with,

in such a way as to ensure, or to make it virtually certain, that it will not be the subject of any further transactions or be dealt with again in any other way.

(5)The Secretary of State may by regulations amend the definitions of “cryptoasset” and “crypto wallet” in this section.

(6)The Secretary of State must consult the Scottish Ministers before making regulations under subsection (5).]

Textual Amendments

151 ProceedingsS

(1)Proceedings for an offence are instituted against a person—

(a)on his arrest without warrant;

(b)when he is charged with the offence without being arrested;

(c)when a warrant to arrest him is granted;

(d)when a warrant to cite him is granted;

(e)when he first appears on petition or when an indictment or complaint is served on him.

(2)If more than one time is found under subsection (1) in relation to proceedings they are instituted at the earliest of those times.

(3)Proceedings for an offence are concluded when—

(a)the trial diet is deserted simpliciter,

(b)the accused is acquitted or, under section 65 or 147 of the Procedure Act, discharged or liberated,

(c)the court sentences the accused without making a confiscation order and without postponing a decision as regards making such an order,

(d)the court decides, after such a postponement, not to make a confiscation order,

(e)the accused’s conviction is quashed, or

(f)the accused is pardoned.

(4)If a confiscation order is made against the accused in proceedings for an offence, the proceedings are concluded—

(a)when the order is satisfied or discharged, or

(b)when the order is quashed and there is no further possibility of an appeal against the decision to quash the order.

(5)If—

(a)the accused is convicted in proceedings for an offence but the court decides not to make a confiscation order against him, and

(b)on appeal under section 108(1)(ca) or 175(4)(ca) of the Procedure Act, the High Court of Justiciary refuses the appeal,

the proceedings are concluded on the determination of the appeal.

Commencement Information

I143S. 151 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

152 ApplicationsS

(1)An application under section 104, 105, 111 or 112 is concluded—

(a)in a case where the court decides not to make a confiscation order against the accused, when it makes the decision;

(b)in a case where a confiscation order is made against him as a result of the application, when the order is satisfied or discharged, or when the order is quashed and there is no further possibility of an appeal against the decision to quash the order;

(c)in a case where the application is withdrawn, when the prosecutor notifies the withdrawal to the court to which the application was made.

(2)An application under section 106 or 107 is concluded—

(a)in a case where the court decides not to vary the confiscation order concerned, when it makes the decision;

(b)in a case where the court varies the confiscation order as a result of the application, when the order is satisfied or discharged, or when the order is quashed and there is no further possibility of an appeal against the decision to quash the order;

(c)in a case where the application is withdrawn, when the prosecutor notifies the withdrawal to the court to which the application was made.

Commencement Information

I144S. 152 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

153 Satisfaction of confiscation ordersS

(1)A confiscation order is satisfied—

(a)when no amount is due under it;

F526(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)A confiscation order is subject to appeal until there is no further possibility of an appeal on which the order could be varied or quashedF527....

Textual Amendments

F526S. 153(1)(b) omitted (1.3.2016) by virtue of Serious Crime Act 2015 (c. 9), s. 88(2)(c), Sch. 4 para. 45; S.S.I. 2016/11, reg. 2(j) (with reg. 3)

Commencement Information

I145S. 153 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

[F528153ANo further possibility of appealS

(1)The following rule applies for the purposes of construing any provision of this Part which refers to there being no further possibility of—

(a)an appeal against (or review of) a decision of a court, or

(b)an appeal on which an order of a court could be varied or quashed.

(2)Any power—

(a)to allow an appeal (or review) out of time, or

(b)to extend the time for applying for leave to appeal,

must be ignored.]

Textual Amendments

154 Other interpretative provisionsS

(1)In this Part—

  • “accused” means a person against whom proceedings for an offence have been instituted (whether or not he has been convicted);

  • “clerk of court” includes the sheriff clerk;

  • “confiscation order” means an order under section 92;

  • “conviction”, in relation to an offence, includes a finding that the offence has been committed;

  • “court” must be construed in accordance with sections 92(13) and 119(10);

  • “criminal investigation” means an investigation which police officers or other persons have a duty to conduct with a view to it being ascertained whether a person should be charged with an offence;

  • “the Procedure Act” means the Criminal Procedure (Scotland) Act 1995 (c. 46);

  • “restraint order” means an order under section 120.

(2)A reference to the offence (or offences) concerned must be construed in accordance with section 92(12).

(3)A reference to sentencing the accused for an offence includes a reference to dealing with him otherwise in respect of the offence.

Commencement Information

I146S. 154 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

GeneralS

155 Rules of courtS

(1)Provision may be made by act of sederunt as to—

(a)giving notice or serving any document for the purposes of this Part;

(b)the accountant of court’s functions under Schedule 3;

(c)the accounts to be kept by the administrator in relation to the exercise of his functions.

(2)Subsection (1) is without prejudice to section 32 of the Sheriff Courts (Scotland) Act 1971 (c. 58) or section 5 of the Court of Session Act 1988 (c. 36).

Commencement Information

I147S. 155 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)

Part 4N.I.Confiscation: Northern Ireland

Modifications etc. (not altering text)

C44Pt. 4 applied by S.I. 1989/1341 (N.I. 12), arts. 57(5B), 59(8B) (as substituted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), Supreme Court s. 458(1), Sch. 11 para. 19(2)(3); S.I. 2003/333, art. 2, Sch.)

Confiscation ordersN.I.

156 Making of orderN.I.

(1)The Crown Court must proceed under this section if the following two conditions are satisfied.

(2)The first condition is that a defendant falls within either of the following paragraphs—

(a)he is convicted of an offence or offences in proceedings before the Crown Court;

(b)he is committed to the Crown Court in respect of an offence or offences under section 218 below (committal with a view to a confiscation order being considered).

(3)The second condition is that—

(a)the prosecutor F529... asks the court to proceed under this section, or

(b)the court believes it is appropriate for it to do so.

(4)The court must proceed as follows—

(a)it must decide whether the defendant has a criminal lifestyle;

(b)if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct;

(c)if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct.

(5)If the court decides under subsection (4)(b) or (c) that the defendant has benefited from the conduct referred to it must—

(a)decide the recoverable amount, and

(b)make an order (a confiscation order) requiring him to pay that amount.

[F530Paragraph (b) applies only if, or to the extent that, it would not be disproportionate to require the defendant to pay the recoverable amount.]

(6)But the court must treat the duty in subsection (5) as a power if it believes that any victim of the conduct has at any time started or intends to start proceedings against the defendant in respect of loss, injury or damage sustained in connection with the conduct.

(7)The court must decide any question arising under subsection (4) or (5) on a balance of probabilities.

(8)The first condition is not satisfied if the defendant absconds (but section 177 may apply).

(9)References in this Part to the offence (or offences) concerned are to the offence (or offences) mentioned in subsection (2).

Textual Amendments

Modifications etc. (not altering text)

C51Pt. 4 applied by S.I. 1989/1341 (N.I. 12), art. 59(8B) (as substituted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), s. 458(1), Sch. 11 para. 19(3); S.I. 2003/333, art. 2, Sch.)

Commencement Information

I148S. 156 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch. (with arts. 4(1), 8, 10-13) (as amended (6.3.2003) by S.I. 2003/531, art. 3)

157 Recoverable amountN.I.

(1)The recoverable amount for the purposes of section 156 is an amount equal to the defendant’s benefit from the conduct concerned.

(2)But if the defendant shows that the available amount is less than that benefit the recoverable amount is—

(a)the available amount, or

(b)a nominal amount, if the available amount is nil.

(3)But if section 156(6) applies the recoverable amount is such amount as—

(a)the court believes is just, but

(b)does not exceed the amount found under subsection (1) or (2) (as the case may be).

(4)In calculating the defendant’s benefit from the conduct concerned for the purposes of subsection (1), [F531the following must be ignored—

(a)any property in respect of which a recovery order is in force under section 266,

(b)any property which has been forfeited in pursuance of a forfeiture notice under section 297A [F532or an account forfeiture notice under section 303Z9], F533...

(c)any property in respect of which a forfeiture order is in force under section 298(2)] [F534, 303O(3), 303R(3) [F535, 303Z14(4), 303Z41(4), 303Z45(3) or 303Z60(4)]] [F536, and

(d)any property which is the forfeitable property in relation to an order under section 303Q(1) [F537or 303Z44(1)].]

(5)If the court decides the available amount, it must include in the confiscation order a statement of its findings as to the matters relevant for deciding that amount.

Textual Amendments

F532Words in s. 157(4)(b) inserted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 25(a); S.I. 2018/78, reg. 5(3)(d)(i)(ii)

F533Word in s. 157(4)(b) omitted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by virtue of Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 25(b); S.I. 2018/78, reg. 5(3)(d)(i)(ii)

F534Words in s. 157(4)(c) inserted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 25(c); S.I. 2018/78, reg. 5(3)(d)(i)(ii)

F535Words in s. 157(4)(c) substituted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 5(2)(a); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

F536S. 157(4)(d) and word inserted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 25(d); S.I. 2018/78, reg. 5(3)(d)(i)(ii)

F537Words in s. 157(4)(d) inserted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 5(2)(b); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

Commencement Information

I149S. 157 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

158 Defendant’s benefitN.I.

(1)If the court is proceeding under section 156 this section applies for the purpose of—

(a)deciding whether the defendant has benefited from conduct, and

(b)deciding his benefit from the conduct.

(2)The court must—

(a)take account of conduct occurring up to the time it makes its decision;

(b)take account of property obtained up to that time.

(3)Subsection (4) applies if—

(a)the conduct concerned is general criminal conduct,

(b)a confiscation order mentioned in subsection (5) has at an earlier time been made against the defendant, and

(c)his benefit for the purposes of that order was benefit from his general criminal conduct.

(4)His benefit found at the time the last confiscation order mentioned in subsection (3)(c) was made against him must be taken for the purposes of this section to be his benefit from his general criminal conduct at that time.

(5)If the conduct concerned is general criminal conduct the court must deduct the aggregate of the following amounts—

(a)the amount ordered to be paid under each confiscation order previously made against the defendant;

(b)the amount ordered to be paid under each confiscation order previously made against him under any of the provisions listed in subsection (7).

(6)But subsection (5) does not apply to an amount which has been taken into account for the purposes of a deduction under that subsection on any earlier occasion.

(7)These are the provisions—

(a)the Drug Trafficking Offences Act 1986 (c. 32);

(b)Part 1 of the Criminal Justice (Scotland) Act 1987 (c. 41);

(c)Part 6 of the Criminal Justice Act 1988 (c. 33);

(d)the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));

(e)Part 1 of the Drug Trafficking Act 1994 (c. 37);

(f)Part 1 of the Proceeds of Crime (Scotland) Act 1995 (c. 43);

(g)the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9));

(h)Part 2 or 3 of this Act.

(8)The reference to general criminal conduct in the case of a confiscation order made under any of the provisions listed in subsection (7) is a reference to conduct in respect of which a court is required or entitled to make one or more assumptions for the purpose of assessing a person’s benefit from the conduct.

Commencement Information

I150S. 158 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

159 Available amountN.I.

(1)For the purposes of deciding the recoverable amount, the available amount is the aggregate of—

(a)the total of the values (at the time the confiscation order is made) of all the free property then held by the defendant minus the total amount payable in pursuance of obligations which then have priority, and

(b)the total of the values (at that time) of all tainted gifts.

(2)An obligation has priority if it is an obligation of the defendant—

(a)to pay an amount due in respect of a fine or other order of a court which was imposed or made on conviction of an offence and at any time before the time the confiscation order is made, or

(b)to pay a sum which would be included among the preferential debts if the defendant’s bankruptcy had commenced on the date of the confiscation order or his winding up had been ordered on that date.

(3)“Preferential debts” has the meaning given by Article 346 of the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)).

Commencement Information

I151S. 159 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

160 Assumptions to be made in case of criminal lifestyleN.I.

(1)If the court decides under section 156 that the defendant has a criminal lifestyle it must make the following four assumptions for the purpose of—

(a)deciding whether he has benefited from his general criminal conduct, and

(b)deciding his benefit from the conduct.

(2)The first assumption is that any property transferred to the defendant at any time after the relevant day was obtained by him—

(a)as a result of his general criminal conduct, and

(b)at the earliest time he appears to have held it.

(3)The second assumption is that any property held by the defendant at any time after the date of conviction was obtained by him—

(a)as a result of his general criminal conduct, and

(b)at the earliest time he appears to have held it.

(4)The third assumption is that any expenditure incurred by the defendant at any time after the relevant day was met from property obtained by him as a result of his general criminal conduct.

(5)The fourth assumption is that, for the purpose of valuing any property obtained (or assumed to have been obtained) by the defendant, he obtained it free of any other interests in it.

(6)But the court must not make a required assumption in relation to particular property or expenditure if—

(a)the assumption is shown to be incorrect, or

(b)there would be a serious risk of injustice if the assumption were made.

(7)If the court does not make one or more of the required assumptions it must state its reasons.

(8)The relevant day is the first day of the period of six years ending with—

(a)the day when proceedings for the offence concerned were started against the defendant, or

(b)if there are two or more offences and proceedings for them were started on different days, the earliest of those days.

(9)But if a confiscation order mentioned in section 158(3)(c) has been made against the defendant at any time during the period mentioned in subsection (8)—

(a)the relevant day is the day when the defendant’s benefit was calculated for the purposes of the last such confiscation order;

(b)the second assumption does not apply to any property which was held by him on or before the relevant day.

(10)The date of conviction is—

(a)the date on which the defendant was convicted of the offence concerned, or

(b)if there are two or more offences and the convictions were on different dates, the date of the latest.

Commencement Information

I152S. 160 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

[F538160ADetermination of extent of defendant's interest in propertyN.I.

(1)Where it appears to a court making a confiscation order that—

(a)there is property held by the defendant that is likely to be realised or otherwise used to satisfy the order, and

(b)a person other than the defendant holds, or may hold, an interest in the property,

the court may, if it thinks it appropriate to do so, determine the extent (at the time the confiscation order is made) of the defendant's interest in the property.

(2)The court must not exercise the power conferred by subsection (1) unless it gives to anyone who the court thinks is or may be a person holding an interest in the property a reasonable opportunity to make representations to it.

(3)A determination under this section is conclusive in relation to any question as to the extent of the defendant's interest in the property that arises in connection with—

(a)the realisation [F539or destruction] of the property, or the transfer of an interest in the property, with a view to satisfying the confiscation order, or

(b)any action or proceedings taken for the purposes of any such realisation or transfer.

(4)Subsection (3)—

(a)is subject to section 199(8B), and

(b)does not apply in relation to a question that arises in proceedings before the Court of Appeal or the Supreme Court.

(5)In this Part, the “extent” of the defendant's interest in property means the proportion that the value of the defendant's interest in it bears to the value of the property itself.]

Textual Amendments

F539Words in s. 160A(3)(a) inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 45; S.R. 2024/82, art. 2

[F540161 Time for paymentN.I.

(1)Unless subsection (2) applies, the full amount ordered to be paid under a confiscation order must be paid on the day on which the order is made.

(2)If the court making the confiscation order is satisfied that the defendant is unable to pay the full amount on that day, it may make an order requiring whatever cannot be paid on that day to be paid—

(a)in a specified period, or

(b)in specified periods each of which relates to a specified amount.

(3)A specified period—

(a)must start with the day on which the confiscation order is made, and

(b)must not exceed three months.

(4)If—

(a)within any specified period the defendant applies to the Crown Court for that period to be extended, and

(b)the court is satisfied that, despite having made all reasonable efforts, the defendant is unable to pay the amount to which the specified period relates within that period,

the court may make an order extending the period (for all or any part or parts of the amount in question).

(5)An extended period—

(a)must start with the day on which the confiscation order is made, and

(b)must not exceed six months.

(6)An order under subsection (4)—

(a)may be made after the end of the specified period to which it relates, but

(b)must not be made after the end of the period of six months starting with the day on which the confiscation order is made.

(7)Periods specified or extended under this section must be such that, where the court believes that a defendant will by a particular day be able—

(a)to pay the amount remaining to be paid, or

(b)to pay an amount towards what remains to be paid,

that amount is required to be paid no later than that day.

(8)The court must not make an order under subsection (2) or (4) unless it gives the prosecutor an opportunity to make representations.]

Textual Amendments

Commencement Information

I153S. 161 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

162 Interest on unpaid sumsN.I.

(1)If [F541any amount required to be paid] by a person under a confiscation order is not paid when it is required to be paid, he [F542must pay interest on that amount] for the period for which it remains unpaid.

(2)The rate of interest is the same rate as that for the time being applying to a money judgment of the High Court.

[F543(3)If—

(a)an application has been made under section 161(4) for a specified period to be extended,

(b)the application has not been determined by the court, and

(c)the period of six months starting with the day on which the confiscation order was made has not ended,

the amount on which interest is payable under this section does not include the amount to which the specified period relates.]

(4)In applying this Part the amount of the interest must be treated as part of the amount to be paid under the confiscation order.

Textual Amendments

Modifications etc. (not altering text)

Commencement Information

I154S. 162 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

163 Effect of order on court’s other powersN.I.

(1)If the court makes a confiscation order it must proceed as mentioned in subsections (2) and (4) in respect of the offence or offences concerned.

(2)The court must take account of the confiscation order before—

(a)it imposes a fine on the defendant, or

(b)it makes an order falling within subsection (3).

(3)These orders fall within this subsection—

(a)an order involving payment by the defendant, other than an order under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (compensation orders);

(b)an order under section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders);

(c)an order under Article 11 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (deprivation orders);

(d)an order under section 23 [F544or 23A] or 111 of the Terrorism Act 2000 (c. 11) (forfeiture orders).

(4)Subject to subsection (2), the court must leave the confiscation order out of account in deciding the appropriate sentence for the defendant.

(5)Subsection (6) applies if—

(a)a court makes [F545a confiscation order and one or both of] an order for the payment of compensation under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15) [F546and a slavery and trafficking reparation order under Schedule 2 to the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015,] ) against the same person in the same proceedings, and

(b)the court believes he will not have sufficient means to satisfy [F547all the orders] in full.

(6)In such a case the court must direct that so much [F548as it specifies of the amount (or amounts) payable under the other order (or orders) mentioned in subsection (5)(a)] is to be paid out of any sums recovered under the confiscation order; and the amount it specifies must be the amount it believes will not be recoverable because of the insufficiency of the person’s means.

Textual Amendments

Commencement Information

I155S. 163 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

[F549163AOrders for securing compliance with confiscation orderN.I.

(1)This section applies where the court makes a confiscation order.

(2)The court may make such order as it believes is appropriate for the purpose of ensuring that the confiscation order is effective (a “compliance order”).

(3)The court must consider whether to make a compliance order—

(a)on the making of the confiscation order, and

(b)if it does not make a compliance order then, at any later time (while the confiscation order is still in effect) on the application of the prosecutor.

(4)In considering whether to make a compliance order, the court must, in particular, consider whether any restriction or prohibition on the defendant's travel outside the United Kingdom ought to be imposed for the purpose mentioned in subsection (2).

(5)The court may discharge or vary a compliance order on an application made by—

(a)the prosecutor;

(b)any person affected by the order.

Textual Amendments

163BAppeals against orders under section 163AN.I.

(1)If on an application under section 163A(3)(b) the Crown Court decides not to make a compliance order, the prosecutor may appeal to the Court of Appeal against the decision.

(2)The following persons may appeal to the Court of Appeal in respect of the Crown Court's decision to make, discharge or vary a compliance order—

(a)the prosecutor;

(b)any person affected by the order.

(3)On an appeal under subsection (1) or (2) the Court of Appeal may—

(a)confirm the decision, or

(b)make such order as it believes is appropriate.

(4)An appeal lies to the Supreme Court against a decision of the Court of Appeal under subsection (3).

(5)An appeal under subsection (4) lies at the instance of any person who was a party to the proceedings before the Court of Appeal.

(6)On an appeal under subsection (4) the Supreme Court may—

(a)confirm the decision of the Court of Appeal, or

(b)make such order as it believes is appropriate.

(7)In this section “compliance order” means an order made under section 163A.]

Textual Amendments

Procedural mattersN.I.

164 PostponementN.I.

(1)The court may—

(a)proceed under section 161 before it sentences the defendant for the offence (or any of the offences) concerned, or

(b)postpone proceedings under section 161 for a specified period.

(2)A period of postponement may be extended.

(3)A period of postponement (including one as extended) must not end after the permitted period ends.

(4)But subsection (3) does not apply if there are exceptional circumstances.

(5)The permitted period is the period of two years starting with the date of conviction.

(6)But if—

(a)the defendant appeals against his conviction for the offence (or any of the offences) concerned, and

(b)the period of three months (starting with the day when the appeal is determined or otherwise disposed of) ends after the period found under subsection (5),

the permitted period is that period of three months.

(7)A postponement or extension may be made—

(a)on application by the defendant;

(b)on application by the prosecutor F550...;

(c)by the court of its own motion.

(8)If—

(a)proceedings are postponed for a period, and

(b)an application to extend the period is made before it ends,

the application may be granted even after the period ends.

(9)The date of conviction is—

(a)the date on which the defendant was convicted of the offence concerned, or

(b)if there are two or more offences and the convictions were on different dates, the date of the latest.

(10)References to appealing include references to applying under Article 146 of the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)) (statement of case).

(11)A confiscation order must not be quashed only on the ground that there was a defect or omission in the procedure connected with the application for or the granting of a postponement.

(12)But subsection (11) does not apply if before it made the confiscation order the court—

(a)imposed a fine on the defendant;

(b)made an order falling within section 163(3);

(c)made an order under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (compensation orders).

Textual Amendments

Commencement Information

I156S. 164 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

165 Effect of postponementN.I.

(1)If the court postpones proceedings under section 156 it may proceed to sentence the defendant for the offence (or any of the offences) concerned.

(2)In sentencing the defendant for the offence (or any of the offences) concerned in the postponement period the court must not—

(a)impose a fine on him,

(b)make an order falling within section 163(3), or

(c)make an order for the payment of compensation under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)).

(3)If the court sentences the defendant for the offence (or any of the offences) concerned in the postponement period, after that period ends it may vary the sentence by—

(a)imposing a fine on him,

(b)making an order falling within section 163(3), or

(c)making an order for the payment of compensation under Article 14 of the Criminal Justice (Northern Ireland) Order 1994.

(4)But the court may proceed under subsection (3) only within the period of 28 days which starts with the last day of the postponement period.

(5)For the purposes of—

(a)section 16(1) of the Criminal Appeal (Northern Ireland) Act 1980 (c. 47) (time limit for notice of appeal or of application for leave to appeal), and

(b)paragraph 1 of Schedule 3 to the Criminal Justice Act 1988 (c. 33) (time limit for notice of application for leave to refer a case under section 36 of that Act),

the sentence must be regarded as imposed or made on the day on which it is varied under subsection (3).

(6)If the court proceeds to sentence the defendant under subsection (1), section 156 has effect as if the defendant’s particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

(7)The postponement period is the period for which proceedings under section 156 are postponed.

Commencement Information

I157S. 165 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

166 Statement of informationN.I.

(1)If the court is proceeding under section 156 in a case where section 156(3)(a) applies, the prosecutor F551... must give the court a statement of information within the period the court orders.

(2)If the court is proceeding under section 156 in a case where section 156(3)(b) applies and it orders the prosecutor to give it a statement of information, the prosecutor must give it such a statement within the period the court orders.

(3)If the prosecutor F552... believes the defendant has a criminal lifestyle the statement of information is a statement of matters the prosecutor F553... believes are relevant in connection with deciding these issues—

(a)whether the defendant has a criminal lifestyle;

(b)whether he has benefited from his general criminal conduct;

(c)his benefit from the conduct.

(4)A statement under subsection (3) must include information the prosecutor F554... believes is relevant—

(a)in connection with the making by the court of a required assumption under section 160;

(b)for the purpose of enabling the court to decide if the circumstances are such that it must not make such an assumption.

(5)If the prosecutor F555... does not believe the defendant has a criminal lifestyle the statement of information is a statement of matters the prosecutor F556... believes are relevant in connection with deciding these issues—

(a)whether the defendant has benefited from his particular criminal conduct;

(b)his benefit from the conduct.

(6)If the prosecutor F557... gives the court a statement of information—

(a)he may at any time give the court a further statement of information;

(b)he must give the court a further statement of information if it orders him to do so, and he must give it within the period the court orders.

[F558(6A)A statement of information (other than one to which subsection (6B) applies) must include any information known to the prosecutor which the prosecutor believes is or would be relevant for the purpose of enabling the court to decide—

(a)whether to make a determination under section 160A, or

(b)what determination to make (if the court decides to make one).

(6B)If the court has decided to make a determination under section 160A, a further statement of information under subsection (6)(b) must, if the court so orders, include specified information that is relevant to the determination.]

(7)If the court makes an order under this section it may at any time vary it by making another one.

Textual Amendments

Commencement Information

I158S. 166 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

167 Defendant’s response to statement of informationN.I.

(1)If the prosecutor F559... gives the court a statement of information and a copy is served on the defendant, the court may order the defendant—

(a)to indicate (within the period it orders) the extent to which he accepts each allegation in the statement, and

(b)so far as he does not accept such an allegation, to give particulars of any matters he proposes to rely on.

(2)If the defendant accepts to any extent an allegation in a statement of information the court may treat his acceptance as conclusive of the matters to which it relates for the purpose of deciding the issues referred to in section 166(3) or (5) (as the case may be).

(3)If the defendant fails in any respect to comply with an order under subsection (1) he may be treated for the purposes of subsection (2) as accepting every allegation in the statement of information apart from—

(a)any allegation in respect of which he has complied with the requirement;

(b)any allegation that he has benefited from his general or particular criminal conduct.

(4)For the purposes of this section an allegation may be accepted or particulars may be given in a manner ordered by the court.

(5)If the court makes an order under this section it may at any time vary it by making another one.

(6)No acceptance under this section that the defendant has benefited from conduct is admissible in evidence in proceedings for an offence.

Textual Amendments

Commencement Information

I159S. 167 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

168 Provision of information by defendantN.I.

(1)This section applies if—

(a)the court is proceeding under section 156 in a case where section 156(3)(a) applies, or

(b)it is proceeding under section 156 in a case where section 156(3)(b) applies or it is considering whether to proceed.

(2)For the purpose of obtaining information to help it in carrying out its functions [F560 (including functions under section 160A)] the court may at any time order the defendant to give it information specified in the order.

(3)An order under this section may require all or a specified part of the information to be given in a specified manner and before a specified date.

(4)If the defendant fails without reasonable excuse to comply with an order under this section the court may draw such inference as it believes is appropriate.

(5)Subsection (4) does not affect any power of the court to deal with the defendant in respect of a failure to comply with an order under this section.

(6)If the prosecutor F561... accepts to any extent an allegation made by the defendant—

(a)in giving information required by an order under this section, or

(b)in any other statement given to the court in relation to any matter relevant to [F562deciding—

(i)the available amount under section 159, or

(ii)whether to make a determination under section 160A, or what determination to make (if the court decides to make one),]

the court may treat the acceptance as conclusive of the matters to which it relates.

(7)For the purposes of this section an allegation may be accepted in a manner ordered by the court.

(8)If the court makes an order under this section it may at any time vary it by making another one.

(9)No information given under this section which amounts to an admission by the defendant that he has benefited from criminal conduct is admissible in evidence in proceedings for an offence.

Textual Amendments

Commencement Information

I160S. 168 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

[F563168AProvision of information as to defendant's interest in propertyN.I.

(1)This section applies if the court—

(a)is considering whether to make a determination under section 160A of the extent of the defendant's interest in any property, or

(b)is deciding what determination to make (if the court has decided to make a determination under that section).

In this section “interested person” means a person (other than the defendant) who the court thinks is or may be a person holding an interest in the property.

(2)For the purpose of obtaining information to help it in carrying out its functions under section 160A the court may at any time order an interested person to give it information specified in the order.

(3)An order under this section may require all or a specified part of the information to be given in a specified manner and before a specified date.

(4)If an interested person fails without reasonable excuse to comply with an order under this section the court may draw such inference as it believes is appropriate.

(5)Subsection (4) does not affect any power of the court to deal with the person in respect of a failure to comply with an order under this section.

(6)If the prosecutor accepts to any extent an allegation made by an interested person—

(a)in giving information required by an order under this section, or

(b)in any other statement given to the court in relation to any matter relevant to a determination under section 160A,

the court may treat the acceptance as conclusive of the matters to which it relates.

(7)For the purposes of this section an allegation may be accepted in a manner ordered by the court.

(8)If the court makes an order under this section it may at any time vary it by making another one.

(9)No information given by a person under this section is admissible in evidence in proceedings against that person for an offence.]

Textual Amendments

ReconsiderationN.I.

169 No order made: reconsideration of caseN.I.

(1)This section applies if—

(a)the first condition in section 156 is satisfied but no court has proceeded under that section,

(b)there is evidence which was not available to the prosecutor on the relevant date,

(c)before the end of the period of six years starting with the date of conviction the prosecutor F564... applies to the Crown Court to consider the evidence, and

(d)after considering the evidence the court believes it is appropriate for it to proceed under section 156.

(2)If this section applies the court must proceed under section 156, and when it does so subsections (3) to (8) below apply.

(3)If the court has already sentenced the defendant for the offence (or any of the offences) concerned, section 156 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

(4)Section 158(2) does not apply, and the rules applying instead are that the court must—

(a)take account of conduct occurring before the relevant date;

(b)take account of property obtained before that date;

(c)take account of property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

(5)In section 160—

(a)the first and second assumptions do not apply with regard to property first held by the defendant on or after the relevant date;

(b)the third assumption does not apply with regard to expenditure incurred by him on or after that date;

(c)the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

(6)The recoverable amount for the purposes of section 156 is such amount as—

(a)the court believes is just, but

(b)does not exceed the amount found under section 157.

(7)In arriving at the just amount the court must have regard in particular to—

(a)the amount found under section 157;

(b)any fine imposed on the defendant in respect of the offence (or any of the offences) concerned;

(c)any order which falls within section 163(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by the court in deciding what is the free property held by him for the purposes of section 159;

(d)any order which has been made against him in respect of the offence (or any of the offences) concerned under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (compensation orders).

(8)If an order for the payment of compensation under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 has been made against the defendant in respect of the offence or offences concerned, section 163(5) and (6) above do not apply.

(9)The relevant date is—

(a)if the court made a decision not to proceed under section 156, the date of the decision;

(b)if the court did not make such a decision, the date of conviction.

(10)The date of conviction is—

(a)the date on which the defendant was convicted of the offence concerned, or

(b)if there are two or more offences and the convictions were on different dates, the date of the latest.

Textual Amendments

Commencement Information

I161S. 169 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

170 No order made: reconsideration of benefitN.I.

(1)This section applies if the following two conditions are satisfied.

(2)The first condition is that in proceeding under section 156 the court has decided that—

(a)the defendant has a criminal lifestyle but has not benefited from his general criminal conduct, or

(b)the defendant does not have a criminal lifestyle and has not benefited from his particular criminal conduct.

F565(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)F566... the second condition is that—

(a)there is evidence which was not available to the prosecutor when the court decided that the defendant had not benefited from his general or particular criminal conduct,

(b)before the end of the period of six years starting with the date of conviction the prosecutor F567... applies to the Crown Court to consider the evidence, and

(c)after considering the evidence the court concludes that it would have decided that the defendant had benefited from his general or particular criminal conduct (as the case may be) if the evidence had been available to it.

(5)If this section applies the court—

(a)must make a fresh decision under section 156(4)(b) or (c) whether the defendant has benefited from his general or particular criminal conduct (as the case may be);

(b)may make a confiscation order under that section.

(6)Subsections (7) to (12) below apply if the court proceeds under section 156 in pursuance of this section.

(7)If the court has already sentenced the defendant for the offence (or any of the offences) concerned, section 156 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

(8)Section 158(2) does not apply, and the rules applying instead are that the court must—

(a)take account of conduct occurring before the date of the original decision that the defendant had not benefited from his general or particular criminal conduct;

(b)take account of property obtained before that date;

(c)take account of property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

(9)In section 160—

(a)the first and second assumptions do not apply with regard to property first held by the defendant on or after the date of the original decision that the defendant had not benefited from his general or particular criminal conduct;

(b)the third assumption does not apply with regard to expenditure incurred by him on or after that date;

(c)the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

(10)The recoverable amount for the purposes of section 156 is such amount as—

(a)the court believes is just, but

(b)does not exceed the amount found under section 157.

(11)In arriving at the just amount the court must have regard in particular to—

(a)the amount found under section 157;

(b)any fine imposed on the defendant in respect of the offence (or any of the offences) concerned;

(c)any order which falls within section 163(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by the court in deciding what is the free property held by him for the purposes of section 159;

(d)any order which has been made against him in respect of the offence (or any of the offences) concerned under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (compensation orders).

(12)If an order for the payment of compensation under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 has been made against the defendant in respect of the offence or offences concerned, section 163(5) and (6) above do not apply.

(13)The date of conviction is the date found by applying section 169(10).

Textual Amendments

Commencement Information

I162S. 170 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

171 Order made: reconsideration of benefitN.I.

(1)This section applies if—

(a)a court has made a confiscation order,

(b)there is evidence which was not available to the prosecutor F568... at the relevant time,

(c)the prosecutor F569... believes that if the court were to find the amount of the defendant’s benefit in pursuance of this section it would exceed the relevant amount,

(d)before the end of the period of six years starting with the date of conviction the prosecutor F570... applies to the Crown Court to consider the evidence, and

(e)after considering the evidence the court believes it is appropriate for it to proceed under this section.

(2)The court must make a new calculation of the defendant’s benefit from the conduct concerned, and when it does so subsections (3) to (6) below apply.

(3)If a court has already sentenced the defendant for the offence (or any of the offences) concerned section 156 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

(4)Section 158(2) does not apply, and the rules applying instead are that the court must—

(a)take account of conduct occurring up to the time it decided the defendant’s benefit for the purposes of the confiscation order;

(b)take account of property obtained up to that time;

(c)take account of property obtained after that time if it was obtained as a result of or in connection with conduct occurring before that time.

(5)In applying section 158(5) the confiscation order must be ignored.

(6)In section 160—

(a)the first and second assumptions do not apply with regard to property first held by the defendant after the time the court decided his benefit for the purposes of the confiscation order;

(b)the third assumption does not apply with regard to expenditure incurred by him after that time;

(c)the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him after that time.

(7)If the amount found under the new calculation of the defendant’s benefit exceeds the relevant amount the court—

(a)must make a new calculation of the recoverable amount for the purposes of section 156, and

(b)if it exceeds the amount required to be paid under the confiscation order, may vary the order by substituting for the amount required to be paid such amount as it believes is just.

(8)In applying subsection (7)(a) the court must—

(a)take the new calculation of the defendant’s benefit;

(b)apply section 159 as if references to the time the confiscation order is made were to the time of the new calculation of the recoverable amount and as if references to the date of the confiscation order were to the date of that new calculation.

(9)In applying subsection (7)(b) the court must have regard in particular to—

(a)any fine imposed on the defendant for the offence (or any of the offences) concerned;

(b)any order which falls within section 163(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by the court in deciding what is the free property held by him for the purposes of section 159;

(c)any order which has been made against him in respect of the offence (or any of the offences) concerned under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (compensation orders).

(10)But in applying subsection (7)(b) the court must not have regard to an order falling within subsection (9)(c) if a court has made a direction under section 163(6).

(11)In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.

(12)The relevant time is—

(a)when the court calculated the defendant’s benefit for the purposes of the confiscation order, if this section has not applied previously;

(b)when the court last calculated the defendant’s benefit in pursuance of this section, if this section has applied previously.

(13)The relevant amount is—

(a)the amount found as the defendant’s benefit for the purposes of the confiscation order, if this section has not applied previously;

(b)the amount last found as the defendant’s benefit in pursuance of this section, if this section has applied previously.

(14)The date of conviction is the date found by applying section 169(10).

Textual Amendments

Commencement Information

I163S. 171 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

172 Order made: reconsideration of available amountN.I.

(1)This section applies if—

(a)a court has made a confiscation order,

(b)the amount required to be paid was the amount found under section 157(2), and

(c)an applicant falling within subsection (2) applies to the Crown Court to make a new calculation of the available amount.

(2)These applicants fall within this subsection—

(a)the prosecutor;

F571(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)a receiver appointed under section 198 F572....

(3)In a case where this section applies the court must make the new calculation, and in doing so it must apply section 159 as if references to the time the confiscation order is made were to the time of the new calculation and as if references to the date of the confiscation order were to the date of the new calculation.

(4)If the amount found under the new calculation exceeds the relevant amount the court may vary the order by substituting for the amount required to be paid such amount as—

(a)it believes is just, but

(b)does not exceed the amount found as the defendant’s benefit from the conduct concerned.

(5)In deciding what is just the court must have regard in particular to—

(a)any fine imposed on the defendant for the offence (or any of the offences) concerned;

(b)any order which falls within section 163(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by the court in deciding what is the free property held by him for the purposes of section 159;

(c)any order which has been made against him in respect of the offence (or any of the offences) concerned under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (compensation orders).

(6)But in deciding what is just the court must not have regard to an order falling within subsection (5)(c) if a court has made a direction under section 163(6).

(7)In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.

(8)The relevant amount is—

(a)the amount found as the available amount for the purposes of the confiscation order, if this section has not applied previously;

(b)the amount last found as the available amount in pursuance of this section, if this section has applied previously.

(9)The amount found as the defendant’s benefit from the conduct concerned is—

(a)the amount so found when the confiscation order was made, or

(b)if one or more new calculations of the defendant’s benefit have been made under section 171 the amount found on the occasion of the last such calculation.

Textual Amendments

Commencement Information

I164S. 172 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

173 Inadequacy of available amount: variation of orderN.I.

(1)This section applies if—

(a)a court has made a confiscation order, and

(b)the defendant [F573 or the prosecutor], or a receiver appointed under section 198 F574..., applies to the Crown Court to vary the order under this section.

(2)In such a case the court must calculate the available amount, and in doing so it must apply section 159 as if references to the time the confiscation order is made were to the time of the calculation and as if references to the date of the confiscation order were to the date of the calculation.

(3)If the court finds that the available amount (as so calculated) is inadequate for the payment of any amount remaining to be paid under the confiscation order it may vary the order by substituting for the amount required to be paid such smaller amount as the court believes is just.

(4)If a person has been [F575made] bankrupt or his estate has been sequestrated, or if an order for the winding up of a company has been made, the court must take into account the extent to which realisable property held by that person or that company may be distributed among creditors.

(5)The court may disregard any inadequacy which it believes is attributable (wholly or partly) to anything done by the defendant for the purpose of preserving property held by the recipient of a tainted gift from any risk of realisation under this Part.

(6)In subsection (4) “company” means any company which may be wound up under the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)) or the Insolvency Act 1986 (c. 45).

Textual Amendments

F573Words in s. 173(1)(b) inserted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 30(1), 88(3)(a); S.R. 2015/190, reg. 3(1)(d)

Commencement Information

I165S. 173 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

174 Inadequacy of available amount: discharge of orderN.I.

(1)This section applies if—

(a)a court has made a confiscation order,

(b)the prosecutor applies to the Crown Court for the discharge of the order, and

(c)the amount remaining to be paid under the order is less than £1,000.

(2)In such a case the court must calculate the available amount, and in doing so it must apply section 159 as if references to the time the confiscation order is made were to the time of the calculation and as if references to the date of the confiscation order were to the date of the calculation.

(3)If the court—

(a)finds that the available amount (as so calculated) is inadequate to meet the amount remaining to be paid, and

(b)is satisfied that the inadequacy is due wholly to a specified reason or a combination of specified reasons,

it may discharge the confiscation order.

(4)The specified reasons are—

(a)in a case where any of the realisable property consists of money in a currency other than sterling, that fluctuations in currency exchange rates have occurred;

(b)any reason specified by the [F576Department of Justice in Northern Ireland] by order.

(5)The [F577Department of Justice in Northern Ireland] may by order vary the amount for the time being specified in subsection (1)(c).

[F578(6)The discharge of a confiscation order under this section does not prevent the making of an application in respect of the order under section 171(1)(d) or 172(1)(c).

(7)Where on such an application the court determines that the order should be varied under section 171(7) or (as the case may be) 172(4), the court may provide that its discharge under this section is revoked.]

Textual Amendments

F578S. 174(6)(7) inserted (27.4.2017 for specified purposes, 28.6.2021 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 32(5), 58(3)(6) (with s. 32(7)); S.R. 2021/167, reg. 2(c)

Commencement Information

I166S. 174 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

175 Small amount outstanding: discharge of orderN.I.

(1)This section applies if—

(a)a court has made a confiscation order,

(b)a chief clerk applies to the Crown Court for the discharge of the order, and

(c)the amount remaining to be paid under the order is £50 or less.

(2)In such a case the court may discharge the order.

(3)The [F579Department of Justice in Northern Ireland] may by order vary the amount for the time being specified in subsection (1)(c).

[F580(4)The discharge of a confiscation order under this section does not prevent the making of an application in respect of the order under section 171(1)(d) or 172(1)(c).

(5)Where on such an application the court determines that the order should be varied under section 171(7) or (as the case may be) 172(4), the court may provide that its discharge under this section is revoked.]

Textual Amendments

F580S. 175(4)(5) inserted (27.4.2017 for specified purposes, 28.6.2021 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 32(6), 58(3)(6) (with s. 32(7)); S.R. 2021/167, reg. 2(c)

Commencement Information

I167S. 175 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

[F581175ARecovery from estate of deceased defendant impractical: discharge of orderN.I.

(1)This section applies if—

(a)a court has made a confiscation order,

(b)the defendant dies while the order is not satisfied, and

(c)the prosecutor applies to the Crown Court for the discharge of the order.

(2)The court may discharge the order if it appears to the court that—

(a)it is not possible to recover anything from the estate of the deceased for the purpose of satisfying the order to any extent, or

(b)it would not be reasonable to make any attempt, or further attempt, to recover anything from the estate of the deceased for that purpose.]

Textual Amendments

176 InformationN.I.

(1)This section applies if—

(a)the court proceeds under section 156 in pursuance of section 169 or 170, or

(b)the prosecutor F582... applies under section 171.

(2)In such a case—

(a)the prosecutor F583... must give the court a statement of information within the period the court orders;

(b)section 166 applies accordingly (with appropriate modifications where the prosecutor F584... applies under section 171);

(c)section 167 applies accordingly;

(d)section 168 applies as it applies in the circumstances mentioned in section 168(1).

Textual Amendments

Commencement Information

I168S. 176 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

Defendant abscondsN.I.

177 Defendant convicted or committedN.I.

(1)This section applies if the following two conditions are satisfied.

[F585(2)The first condition is that a defendant falls within either of the following paragraphs—

(a)he absconds and, either before or after doing so, he is convicted of an offence or offences in proceedings before the Crown Court;

(b)he absconds after being committed to the Crown Court in respect of an offence or offences under section 218 below (committal with a view to a confiscation order being considered).]

(3)The second condition is that—

(a)the prosecutor F586... applies to the Crown Court to proceed under this section, and

(b)the court believes it is appropriate for it to do so.

(4)If this section applies the court must proceed under section 156 in the same way as it must proceed if the two conditions there mentioned are satisfied; but this is subject to subsection (5).

(5)If the court proceeds under section 156 as applied by this section, this Part has effect with these modifications—

(a)any person the court believes is likely to be affected by an order under section 156 is entitled to appear before the court and make representations;

(b)the court must not make an order under section 156 unless the prosecutor F587... has taken reasonable steps to contact the defendant;

(c)section 156(9) applies as if the reference to subsection (2) were to subsection (2) of this section;

(d)sections 160, 166(4), 167 and 168 must be ignored;

(e)sections 169, 170 and 171 must be ignored while the defendant is still an absconder.

[F588(6)Once the defendant ceases to be an absconder—

(a)section 169 has effect as if subsection (1) read—

“(1)This section applies if—

(a)at a time when the first condition in section 177 was satisfied the court did not proceed under section 156,

(b)before the end of the period of six years starting with the day when the defendant ceased to be an absconder, the prosecutor applies to the Crown Court to proceed under section 156, and

(c)the court believes it is appropriate for it to do so.”;

(b)section 170 has effect as if subsection (4) read—

“(4)The second condition is that—

(a)before the end of the period of six years starting with the day when the defendant ceased to be an absconder, the prosecutor applies to the Crown Court to reconsider whether the defendant has benefited from his general or particular criminal conduct (as the case may be), and

(b)the court believes it is appropriate for it to do so.”;

(c)section 171 has effect as if subsection (1) read—

“(1)This section applies if—

(a)a court has made a confiscation order,

(b)the prosecutor believes that if the court were to find the amount of the defendant's benefit in pursuance of this section it would exceed the relevant amount,

(c)before the end of the period of six years starting with the day when the defendant ceased to be an absconder, the prosecutor applies to the Crown Court to proceed under this section, and

(d)the court believes it is appropriate for it to do so.”;

(d)the modifications set out in subsection (5)(a) to (d) of this section do not apply to proceedings that take place by virtue of section 169, 170 or 171 (as applied by this subsection).]

Textual Amendments

F588S. 177(6) substituted for s. 177(6)(7) (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 31(2), 88(3)(a); S.R. 2015/190, reg. 3(1)(e)

Commencement Information

I169S. 177 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch. (with arts. 4(2), 10-13)

178 Defendant neither convicted nor acquittedN.I.

(1)This section applies if the following two conditions are satisfied.

(2)The first condition is that—

(a)proceedings for an offence or offences are started against a defendant but are not concluded,

(b)he absconds, and

(c)the period of [F589three months] (starting with the day the court believes he absconded) has ended.

(3)The second condition is that—

(a)the prosecutor F590... applies to the Crown Court to proceed under this section, and

(b)the court believes it is appropriate for it to do so.

(4)If this section applies the court must proceed under section 156 in the same way as it must proceed if the two conditions there mentioned are satisfied; but this is subject to subsection (5).

(5)If the court proceeds under section 156 as applied by this section, this Part has effect with these modifications—

(a)any person the court believes is likely to be affected by an order under section 156 is entitled to appear before the court and make representations;

(b)the court must not make an order under section 156 unless the prosecutor F591... has taken reasonable steps to contact the defendant;

(c)section 156(9) applies as if the reference to subsection (2) were to subsection (2) of this section;

(d)sections 160, 166(4) and 167 to 170 must be ignored;

(e)section 171 must be ignored while the defendant is still an absconder.

[F592(6)Once the defendant has ceased to be an absconder—

(a)section 171 has effect as if subsection (1) read—

“(1)This section applies if—

(a)a court has made a confiscation order,

(b)the prosecutor believes that if the court were to find the amount of the defendant's benefit in pursuance of this section it would exceed the relevant amount,

(c)before the end of the period of six years starting with the day when the defendant ceased to be an absconder, the prosecutor applies to the Crown Court to proceed under this section, and

(d)the court believes it is appropriate for it to do so.”;

(b)the modifications set out in subsection (5)(a) to (d) of this section do not apply to proceedings that take place by virtue of section 171 (as applied by this subsection).]

(7)If—

(a)the court makes an order under section 156 as applied by this section, and

(b)the defendant is later convicted in proceedings before the Crown Court of the offence (or any of the offences) concerned,

section 156 does not apply so far as that conviction is concerned.

Textual Amendments

Commencement Information

I170S. 178 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch. (with arts. 4(3), 10-13)

179 Variation of orderN.I.

(1)This section applies if—

(a)the court makes a confiscation order under section 156 as applied by section 178,

(b)the defendant ceases to be an absconder,

(c)he is convicted of an offence (or any of the offences) mentioned in section 178(2)(a),

(d)he believes that the amount required to be paid was too large (taking the circumstances prevailing when the amount was found for the purposes of the order), and

(e)before the end of the relevant period he applies to the Crown Court to consider the evidence on which his belief is based.

(2)If (after considering the evidence) the court concludes that the defendant’s belief is well founded—

(a)it must find the amount which should have been the amount required to be paid (taking the circumstances prevailing when the amount was found for the purposes of the order), and

(b)it may vary the order by substituting for the amount required to be paid such amount as it believes is just.

(3)The relevant period is the period of 28 days starting with—

(a)the date on which the defendant was convicted of the offence mentioned in section 178(2)(a), or

(b)if there are two or more offences and the the convictions were on different dates, the date of the latest.

(4)But in a case where section 178(2)(a) applies to more than one offence the court must not make an order under this section unless it is satisfied that there is no possibility of any further proceedings being taken or continued in relation to any such offence in respect of which the defendant has not been convicted.

Commencement Information

I171S. 179 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

180 Discharge of orderN.I.

(1)Subsection (2) applies if—

(a)the court makes a confiscation order under section 156 as applied by section 178,

(b)the defendant is later tried for the offence or offences concerned and acquitted on all counts, and

(c)he applies to the Crown Court to discharge the order.

(2)In such a case the court must discharge the order.

(3)Subsection (4) applies if—

(a)the court makes a confiscation order under section 156 as applied by section 178,

(b)the defendant ceases to be an absconder,

(c)subsection (1)(b) does not apply, and

(d)he applies to the Crown Court to discharge the order.

(4)In such a case the court may discharge the order if it finds that—

(a)there has been undue delay in continuing the proceedings mentioned in section 178(2), or

(b)the prosecutor does not intend to proceed with the prosecution.

(5)If the court discharges a confiscation order under this section it may make such a consequential or incidental order as it believes is appropriate.

Commencement Information

I172S. 180 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

AppealsN.I.

181 Appeal by prosecutor [F593etc] F594...N.I.

(1)If the Crown Court makes a confiscation order the prosecutor F595... may appeal to the Court of Appeal in respect of the order.

(2)If the Crown Court decides not to make a confiscation order the prosecutor F596... may appeal to the Court of Appeal against the decision.

(3)Subsections (1) and (2) do not apply to an order or decision made by virtue of section [F597 160A,] 169, 170, 177 or 178.

[F598(4)An appeal lies to the Court of Appeal against a determination, under section 160A, of the extent of the defendant's interest in property.

(5)An appeal under subsection (4) lies at the instance of—

(a)the prosecutor;

(b)a person who the Court of Appeal thinks is or may be a person holding an interest in the property, if subsection (6) or (7) applies.

(6)This subsection applies if the person was not given a reasonable opportunity to make representations when the determination was made.

(7)This subsection applies if it appears to the Court of Appeal to be arguable that giving effect to the determination would result in a serious risk of injustice to the person.

(8)An appeal does not lie under subsection (4) where—

(a)the Court of Appeal believes that an application under section 198 is to be made by the prosecutor for the appointment of a receiver,

(b)such an application has been made but has not yet been determined, or

(c)a receiver has been appointed under section 198.]

Textual Amendments

Commencement Information

I173S. 181 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

182 Court’s powers on appealN.I.

(1)On an appeal under section 181(1) the Court of Appeal may confirm, quash or vary the confiscation order.

(2)On an appeal under section 181(2) the Court of Appeal may confirm the decision, or if it believes the decision was wrong it may—

(a)itself proceed under section 156 (ignoring subsections (1) to (3)), or

(b)direct the Crown Court to proceed afresh under section 156.

[F599(2A)On an appeal under section 181(4) the Court of Appeal may—

(a)confirm the determination, or

(b)make such order as it believes is appropriate.]

(3)In proceeding afresh in pursuance of this section the Crown Court must comply with any directions the Court of Appeal may make.

(4)If a court makes or varies a confiscation order under this section or in pursuance of a direction under this section it must—

(a)have regard to any fine imposed on the defendant in respect of the offence (or any of the offences) concerned;

(b)have regard to any order which falls within section 163(3) and has been made against him in respect of the offence (or any of the offences) concerned, unless the order has already been taken into account by a court in deciding what is the free property held by the defendant for the purposes of section 159.

(5)If the Court of Appeal proceeds under section 156 or the Crown Court proceeds afresh under that section in pursuance of a direction under this section subsections (6) to (10) apply.

(6)If a court has already sentenced the defendant for the offence (or any of the offences) concerned, section 156 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

(7)If an order has been made against the defendant in respect of the offence (or any of the offences) concerned under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (compensation orders)—

(a)the court must have regard to it, and

(b)section 163(5) and (6) above do not apply [F600so far as they relate to such orders] .

(8)Section 158(2) does not apply, and the rules applying instead are that the court must—

(a)take account of conduct occurring before the relevant date;

(b)take account of property obtained before that date;

(c)take account of property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

(9)In section 160—

(a)the first and second assumptions do not apply with regard to property first held by the defendant on or after the relevant date;

(b)the third assumption does not apply with regard to expenditure incurred by him on or after that date;

(c)the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

(10)Section 176 applies as it applies in the circumstances mentioned in subsection (1) of that section.

(11)The relevant date is the date on which the Crown Court decided not to make a confiscation order.

Textual Amendments

Commencement Information

I174S. 182 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

183 Appeal to [F601Supreme Court] N.I.

(1)An appeal lies to the [F602Supreme Court ] from a decision of the Court of Appeal on an appeal under section 181.

[F603(2)An appeal under this section lies at the instance of—

(a)the defendant or the prosecutor (except where paragraph (b) applies);

(b)if the proceedings in the Court of Appeal were proceedings on an appeal under section 181(4), any person who was a party to those proceedings.]

(3)On an appeal from a decision of the Court of Appeal to confirm, vary or make a confiscation order the [F604Supreme Court] may confirm, quash or vary the order.

[F605(3A)On an appeal under this section from a decision under section 182(2A) the Supreme Court may—

(a)confirm the decision of the Court of Appeal, or

(b)make such order as it believes is appropriate.]

(4)On an appeal from a decision of the Court of Appeal to confirm the decision of the Crown Court not to make a confiscation order or from a decision of the Court of Appeal to quash a confiscation order the [F604Supreme Court] may—

(a)confirm the decision, or

(b)direct the Crown Court to proceed afresh under section 156 if it believes the decision was wrong.

(5)In proceeding afresh in pursuance of this section the Crown Court must comply with any directions the [F604Supreme Court] may make.

(6)If a court varies a confiscation order under this section or makes a confiscation order in pursuance of a direction under this section it must—

(a)have regard to any fine imposed on the defendant in respect of the offence (or any of the offences) concerned;

(b)have regard to any order which falls within section 163(3) and has been made against him in respect of the offence (or any of the offences) concerned, unless the order has already been taken into account by a court in deciding what is the free property held by the defendant for the purposes of section 159.

(7)If the Crown Court proceeds afresh under section 156 in pursuance of a direction under this section subsections (8) to (12) apply.

(8)If a court has already sentenced the defendant for the offence (or any of the offences) concerned, section 156 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

(9)If an order has been made against the defendant in respect of the offence (or any of the offences) concerned under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (compensation orders)—

(a)the Crown Court must have regard to it, and

(b)section 163(5) and (6) above do not apply [F606so far as they relate to such orders] .

(10)Section 158(2) does not apply, and the rules applying instead are that the Crown Court must—

(a)take account of conduct occurring before the relevant date;

(b)take account of property obtained before that date;

(c)take account of property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

(11)In section 160—

(a)the first and second assumptions do not apply with regard to property first held by the defendant on or after the relevant date;

(b)the third assumption does not apply with regard to expenditure incurred by him on or after that date;

(c)the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

(12)Section 176 applies as it applies in the circumstances mentioned in subsection (1) of that section.

(13)The relevant date is—

(a)in a case where the Crown Court made a confiscation order which was quashed by the Court of Appeal, the date on which the Crown Court made the order;

(b)in any other case, the date on which the Crown Court decided not to make a confiscation order.

Textual Amendments

Commencement Information

I175S. 183 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

Enforcement authorityN.I.

F607184 Enforcement authorityN.I.

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

Textual Amendments

Enforcement as fines etcN.I.

185 Enforcement as fines etcN.I.

(1)This section applies if a court makes a confiscation order.

(2)Section 35(1)(c), F608... (4) and (5) of the Criminal Justice Act (Northern Ireland) 1945 (c. 15) (functions of court as to fines) apply as if the amount ordered to be paid were a fine imposed on the defendant by the Crown Court.

[F609(2A)Where a court is fixing a term of imprisonment or detention under section 35(1)(c) of that Act (as applied by subsection (2) above) in respect of an amount ordered to be paid under a confiscation order, the maximum terms are those specified in the second column of the Table for amounts described in the corresponding entry in the first column.

TABLE
AmountMaximum term
£10,000 or less6 months
More than £10,000 but no more than £500,0005 years
More than £500,000 but no more than £1 million7 years
More than £1 million14 years

(2B)The Department of Justice in Northern Ireland may by order—

(a)amend subsection (2A) so as to provide for minimum terms of imprisonment or detention under section 35(1)(c) of that Act (as applied by subsection (2) above) in respect of amounts ordered to be paid under a confiscation order;

(b)amend the Table in subsection (2A) so as to remove, alter or replace any entry (including an entry inserted by virtue of the power in paragraph (a) of this subsection) or to add any entry.]

(3)An amount payable under a confiscation order is not a fine, costs, damages or compensation for the purposes of Article 35 of the Criminal Justice [F610 (Children)] (Northern Ireland) Order 1998 (S.I. 1998/1504 (N.I. 9)) (parent or guardian to pay fine etc. instead of child).

Textual Amendments

Modifications etc. (not altering text)

Commencement Information

I176S. 185 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

F611186 Director’s application for enforcementN.I.

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

Textual Amendments

187 Provisions about imprisonment or detentionN.I.

(1)Subsection (2) applies if—

(a)a warrant committing the defendant to prison or detention is issued for a default in payment of an amount ordered to be paid under a confiscation order in respect of an offence or offences, and

(b)at the time the warrant is issued the defendant is liable to serve a term of custody in respect of the offence (or any of the offences).

(2)In such a case the term of imprisonment or of detention to be served in default of payment of the amount does not begin to run until after the term mentioned in subsection (1)(b) above.

(3)The reference in subsection (1)(b) to the term of custody the defendant is liable to serve in respect of the offence (or any of the offences) is a reference to the term of imprisonment, or detention under section 5 of the Treatment of Offenders Act (Northern Ireland) 1968 (c. 29 (N.I.)), which he is liable to serve in respect of the offence (or any of the offences).

(4)For the purposes of subsection (3) consecutive terms and terms which are wholly or partly concurrent must be treated as a single term and the following must be ignored—

(a)any sentence of imprisonment or order for detention suspended under section 18 of the Treatment of Offenders Act (Northern Ireland) 1968 which has not taken effect at the time the warrant is issued;

(b)any term of imprisonment or detention fixed under section 35(1)(c) of the Criminal Justice Act (Northern Ireland) 1945 (c. 15 (N.I.)) (term to be served in default of payment of fine etc) for which a warrant committing the defendant to prison or detention has not been issued at that time.

(5)If the defendant serves a term of imprisonment or detention in default of paying any amount due under a confiscation order, his serving that term does not prevent the confiscation order from continuing to have effect so far as any other method of enforcement is concerned.

Modifications etc. (not altering text)

Commencement Information

I177S. 187 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

188 Reconsideration etc: variation of prison termN.I.

(1)Subsection (2) applies if—

(a)a court varies a confiscation order under section 171, 172, 173, 179, 182 or 183,

(b)the effect of the variation is to vary the maximum period applicable in relation to the order under section 35(2) of the Criminal Justice Act (Northern Ireland) 1945 (c. 15 (N.I.)), and

(c)the result is that that maximum period is less than the term of imprisonment or detention fixed in respect of the order under section 35(1)(c) of that Act.

(2)In such a case the court must fix a reduced term of imprisonment or detention in respect of the confiscation order under section 35(1)(c) of that Act in place of the term previously fixed.

(3)Subsection (4) applies if paragraphs (a) and (b) of subsection (1) apply but paragraph (c) does not.

(4)In such a case the court may amend the term of imprisonment or detention fixed in respect of the confiscation order under section 35(1)(c) of that Act.

(5)If the effect of section 162 is to increase the maximum period applicable in relation to a confiscation order under section 35(2) of that Act, on the application of the [F612prosecutor] the Crown Court may amend the term of imprisonment or detention fixed in respect of the order under section 35(1)(c) of that Act.

F613(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Modifications etc. (not altering text)

Commencement Information

I178S. 188 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

Restraint ordersN.I.

189 Conditions for exercise of powersN.I.

(1)The High Court may exercise the powers conferred by section 190 if any of the following conditions is satisfied.

(2)The first condition is that—

(a)a criminal investigation has been started in Northern Ireland with regard to an offence, and

(b)there [F614are reasonable grounds to suspect] that the alleged offender has benefited from his criminal conduct.

(3)The second condition is that—

(a)proceedings for an offence have been started in Northern Ireland and not concluded,

(b)there is reasonable cause to believe that the defendant has benefited from his criminal conduct.

(4)The third condition is that—

(a)an application by the prosecutor F615... has been made under section 169, 170, 177 or 178 and not concluded, or the court believes that such an application is to be made, and

(b)there is reasonable cause to believe that the defendant has benefited from his criminal conduct.

(5)The fourth condition is that—

(a)an application by the prosecutor F616... has been made under section 171 and not concluded, or the court believes that such an application is to be made, and

(b)there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the defendant’s benefit exceeds the relevant amount (as defined in that section).

(6)The fifth condition is that—

(a)an application by the prosecutor F617... has been made under section 172 and not concluded, or the court believes that such an application is to be made, and

(b)there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the available amount exceeds the relevant amount (as defined in that section).

(7)The second condition is not satisfied if the court believes that—

(a)there has been undue delay in continuing the proceedings, or

(b)the prosecutor does not intend to proceed.

(8)If an application mentioned in the third, fourth or fifth condition has been made the condition is not satisfied if the court believes that—

(a)there has been undue delay in continuing the application, or

(b)the prosecutor F618... does not intend to proceed.

(9)If the first condition is satisfied—

(a)references in this Part to the defendant are to the alleged offender;

(b)references in this Part to the prosecutor are to the person the court believes is to have conduct of any proceedings for the offence;

(c)section 225(9) has effect as if proceedings for the offence had been started against the defendant when the investigation was started.

Textual Amendments

F614Words in s. 189(2)(b) substituted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 33(1), 88(3)(a); S.R. 2015/190, reg. 3(1)(g)

Commencement Information

I179S. 189 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

190 Restraint ordersN.I.

(1)If any condition set out in section 189 is satisfied the High Court may make an order (a restraint order) prohibiting any specified person from dealing with any realisable property held by him.

(2)A restraint order may provide that it applies—

(a)to all realisable property held by the specified person whether or not the property is described in the order;

(b)to realisable property transferred to the specified person after the order is made.

(3)A restraint order may be made subject to exceptions, and an exception may in particular—

(a)make provision for reasonable living expenses and reasonable legal expenses;

(b)make provision for the purpose of enabling any person to carry on any trade, business, profession or occupation;

(c)be made subject to conditions.

(4)But an exception to a restraint order may not make provision for any legal expenses which—

(a)relate to an offence which falls within subsection (5), and

(b)are incurred by the defendant or by a recipient of a tainted gift.

(5)These offences fall within this subsection—

(a)the offence mentioned in section 189(2) or (3), if the first or second condition (as the case may be) is satisfied;

(b)the offence (or any of the offences) concerned, if the third, fourth or fifth condition is satisfied.

(6)Subsection (7) applies if—

(a)the court makes a restraint order, and

(b)the applicant for the order applies to the court to proceed under subsection (7) (whether as part of the application for the restraint order or at any time afterwards).

(7)The court may make such order as it believes is appropriate for the purpose of ensuring that the restraint order is effective.

[F619(7A)Subsections (7B) and (7C) apply where the High Court makes a restraint order (by virtue of the first condition in section 189) as a result of a criminal investigation having been started in Northern Ireland with regard to an offence.

(7B)The court—

(a)must include in the order a requirement for the applicant for the order to report to the court on the progress of the investigation at such times and in such manner as the order may specify (a “reporting requirement”), and

(b)must discharge the order if proceedings for the offence are not started within a reasonable time (and this duty applies whether or not an application to discharge the order is made under section 191(3)).

(7C)The duty under subsection (7B)(a) does not apply if the court decides that, in the circumstances of the case, a reporting requirement should not be imposed, but the court—

(a)must give reasons for its decision, and

(b)may at any time vary the order so as to include a reporting requirement (and this power applies whether or not an application to vary the order is made under section 191(3)).]

[F620(7D)In considering whether to make an order under subsection (7), the court must, in particular, consider whether any restriction or prohibition on the defendant's travel outside the United Kingdom ought to be imposed for the purpose mentioned in that subsection.]

(8)A restraint order does not affect property for the time being subject to a charge under any of these provisions—

(a)section 9 of the Drug Trafficking Offences Act 1986 (c. 32);

(b)section 78 of the Criminal Justice Act 1988 (c. 33);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));

(d)section 27 of the Drug Trafficking Act 1994 (c. 37);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

(9)Dealing with property includes removing it from Northern Ireland.

Textual Amendments

Commencement Information

I180S. 190 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch. (with arts. 6, 10-13)

[F621190ARestraint orders: power to retain seized propertyN.I.

(1)A restraint order may include provision authorising the detention of any property to which it applies if the property—

(a)is seized by an appropriate officer under a relevant seizure power, or

(b)is produced to an appropriate officer in compliance with a production order under section 345.

(2)Provision under subsection (1) may, in particular—

(a)relate to specified property, to property of a specified description or to all property to which the restraint order applies;

(b)relate to property that has already been seized or produced or to property that may be seized or produced in future.

(3)“Appropriate officer” means—

(a)an accredited financial investigator;

(b)a constable;

(c)an officer of Revenue and Customs;

[F622(ca)an immigration officer;]

[F623(d)a National Crime Agency officer;]

(e)a member of staff of the relevant director (within the meaning of section 352(5A)).

(4)“Relevant seizure power” means a power to seize property conferred by or by virtue of—

(a)section 195C,

(b)section 352, or

(c)Part 3 or 4 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (including as applied by order under Article 85(1) of that Order).

(5)The Secretary of State may by order amend the definition of “relevant seizure power”.]

Textual Amendments

F622S. 190A(3)(ca) inserted (22.11.2014) by Crime and Courts Act 2013 (c. 22), Sch. 21 para. 24 (with Sch. 21 para. 40); S.I. 2014/3098, art. 2(e)

F623S. 190A(3)(d) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 117; S.I. 2013/1682, art. 3(v)

191 Application, discharge and variationN.I.

(1)A restraint order—

(a)may be made only on an application by an applicant falling within subsection (2);

(b)may be made on an ex parte application to a judge in chambers.

(2)These applicants fall within this subsection—

(a)the prosecutor;

F624(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)an accredited financial investigator.

(3)An application to discharge or vary a restraint order or an order under section 190(7) may be made to the High Court by—

(a)the person who applied for the order;

(b)any person affected by the order.

(4)Subsections (5) to [F625(8)] apply to an application under subsection (3).

(5)The court—

(a)may discharge the order;

(b)may vary the order.

(6)If the condition in section 189 which was satisfied was that proceedings were started or an application was made, the court must discharge the order on the conclusion of the proceedings or of the application (as the case may be).

[F626(6A)The duty in subsection (6) to discharge a restraint order on the conclusion of proceedings does not apply where—

(a)the proceedings are concluded by reason of a defendant's conviction for an offence being quashed,

(b)the order is in force at the time when the conviction is quashed, and

(c)the Court of Appeal has ordered the defendant to be retried for the offence or the prosecutor has applied for such an order to be made.

(6B)But the court must discharge the restraint order—

(a)if the Court of Appeal declines to make an order for the defendant to be retried,

(b)if the Court of Appeal orders the defendant to be retried but proceedings for the retrial are not started within a reasonable time, or

(c)otherwise, on the conclusion of proceedings for the retrial of the defendant.]

[F627(7)If the condition in section 189 which was satisfied was that an investigation was started—

(a)the court must discharge the order if within a reasonable time proceedings for the offence are not started;

(b)otherwise, the court must discharge the order on the conclusion of the proceedings.

(8)If the condition in section 189 which was satisfied was that an application was to be made—

(a)the court must discharge the order if within a reasonable time the application is not made;

(b)otherwise, the court must discharge the order on the conclusion of the application.]

Textual Amendments

F627S. 191(7)(8) substituted for s. 191(7) (1.6.2015) by Serious Crime Act 2015 (c. 9), s. 88(3)(b), Sch. 4 para. 51(3); S.R. 2015/190, reg. 3(2)(b)

Commencement Information

I181S. 191 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

192 Appeal to Court of AppealN.I.

(1)If on an application for a restraint order the court decides not to make one, the person who applied for the order may appeal to the Court of Appeal against the decision.

(2)If an application is made under section 191(3) in relation to a restraint order or an order under section 190(7) the following persons may appeal to the Court of Appeal in respect of the High Court’s decision on the application—

(a)the person who applied for the order;

(b)any person affected by the order.

(3)On an appeal under subsection (1) or (2) the Court of Appeal may—

(a)confirm the decision, or

(b)make such order as it believes is appropriate.

Commencement Information

I182S. 192 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

193 Appeal to [F628Supreme Court] N.I.

(1)An appeal lies to the [F629Supreme Court] from a decision of the Court of Appeal on an appeal under section 192.

(2)An appeal under this section lies at the instance of any person who was a party to the proceedings before the Court of Appeal.

(3)On an appeal under this section the [F630Supreme Court] may—

(a)confirm the decision of the Court of Appeal, or

(b)make such order as it believes is appropriate.

Textual Amendments

F628Words in s. 193 sidenote substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), s. 148(1), Sch. 9 para. 77(7); S.I. 2009/1604, art. 2(d)

Commencement Information

I183S. 193 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

[F631193ADetention of property pending appealN.I.

(1)This section applies where—

(a)a restraint order includes provision under section 190A authorising the detention of property, and

(b)the restraint order is discharged under section 191(5) or 192(3)(b).

(2)This section also applies where—

(a)a restraint order includes provision under section 190A authorising the detention of property, and

(b)the restraint order is varied under section 191(5) or 192(3)(b) so as to omit any such provision.

(3)The property may be detained until there is no further possibility of an appeal against—

(a)the decision to discharge or vary the restraint order, or

(b)any decision made on an appeal against that decision.]

Textual Amendments

F632194 SeizureN.I.

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

Textual Amendments

195 SupplementaryN.I.

(1)The person applying for a restraint order must be treated for the purposes of section 66 of the Land Registration Act (Northern Ireland) 1970 (c. 18 (N.I.)) (cautions) as a person interested in relation to any registered land to which—

(a)the application relates, or

(b)a restraint order made in pursuance of the application relates.

(2)Upon being served with a copy of a restraint order, the Registrar shall, in respect of any registered land to which a restraint order or an application for a restraint order relates, make an entry inhibiting any dealing with the land without the consent of the High Court.

(3)Subsections (2) and (4) of section 67 of the Land Registration Act (Northern Ireland) 1970 (inhibitions) shall apply to an entry made under subsection (2) as they apply to an entry made on the application of any person interested in the registered land under subsection (1) of that section.

(4)Where a restraint order has been protected by an entry registered under the Land Registration Act (Northern Ireland) 1970 or the Registration of Deeds Acts, an order discharging the restraint order may require that the entry be vacated.

(5)In this section—

  • “Registrar” and “entry” have the same meanings as in the Land Registration Act (Northern Ireland) 1970; and

  • “Registration of Deeds Acts” has the meaning given by section 46(2) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)).

Modifications etc. (not altering text)

Commencement Information

I184S. 195 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

[F633Search and seizure powersN.I.

Textual Amendments

F633Ss. 195A-195T and cross-headings inserted (22.11.2014 for the insertion of ss. 195S(1)-(5), 195T(1)-(7) for specified purposes, 1.3.2016 in so far as not already in force) by Policing and Crime Act 2009 (c. 26), ss. 57(2), 116(1) (as amended by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2012 (S.I. 2012/2595), arts. 1(2), 18(2)(m) (with arts. 24-28); S.I. 2014/3101, art. 3; S.I. 2016/147, art. 3(b))

195ASections 195B to 195S: meaning of “appropriate officer”N.I.

(1)In sections 195B to 195S “appropriate officer” means—

(a)an officer of Revenue and Customs,

[F634(aa)an immigration officer, or]

(b)a constable, F635...

[F636(ba)an SFO officer, or]

(c)an accredited financial investigator.

(2)In subsection (1)(c) the reference to an accredited financial investigator is a reference to an accredited financial investigator who falls within a description specified in an order made for the purposes of that provision by the Secretary of State under section 453.

Textual Amendments

F635Word in s. 195A(1)(b) omitted (27.4.2017 for specified purposes, 28.6.2021 in so far as not already in force) by virtue of Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 7(a); S.I. 2021/724, reg. 3(b)

F636S. 195A(1)(ba) inserted (27.4.2017 for specified purposes, 28.6.2021 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 7(b); S.I. 2021/724, reg. 3(b)

195BConditions for exercise of powersN.I.

(1)An appropriate officer may exercise the power conferred by section 195C if satisfied that any of the following conditions is met.

(2)The first condition is that—

(a)a criminal investigation has been started in Northern Ireland with regard to an indictable offence,

F637(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)proceedings for the offence have not yet been started against the person in Northern Ireland,

(d)there [F638are reasonable grounds to suspect] that the person has benefited from conduct constituting the offence, and

(e)a restraint order is not in force in respect of any realisable property.

(3)The second condition is that—

(a)a criminal investigation has been started in Northern Ireland with regard to an indictable offence,

F639(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)proceedings for the offence have not yet been started against the person in Northern Ireland, and

(d)a restraint order is in force in respect of any realisable property.

(4)The third condition is that—

(a)proceedings for an indictable offence have been started in Northern Ireland and have not been concluded,

(b)there is reasonable cause to believe that the defendant has benefited from conduct constituting the offence, and

(c)a restraint order is not in force in respect of any realisable property.

(5)The fourth condition is that—

(a)proceedings for an indictable offence have been started in Northern Ireland and have not been concluded, and

(b)a restraint order is in force in respect of any realisable property.

(6)The fifth condition is that—

(a)an application by the prosecutor has been made under section 169, 170, 177 or 178 and not concluded, or the officer believes that such an application is to be made, and

(b)there is reasonable cause to believe that the defendant has benefited from criminal conduct.

(7)The sixth condition is that—

(a)an application by the prosecutor has been made under section 171 and not concluded, or the officer believes that such an application is to be made, and

(b)there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the defendant's benefit exceeds the relevant amount (as defined in that section).

(8)The seventh condition is that—

(a)an application by the prosecutor has been made under section 172 and not concluded, or the officer believes that such an application is to be made, and

(b)there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the available amount exceeds the relevant amount (as defined in that section).

(9)The third or fourth condition is not met if the officer believes that—

(a)there has been undue delay in continuing the proceedings, or

(b)the prosecutor does not intend to proceed.

(10)If an application mentioned in the fifth, sixth or seventh condition has been made the condition is not met if the officer believes that—

(a)there has been undue delay in continuing the application, or

(b)the prosecutor does not intend to proceed.

(11)In relation to the first or second condition references in sections 195C to 195S to the defendant are to the person mentioned in that condition.

(12)In relation to the first or second condition section 225(9) has effect as if proceedings for the offence had been started against the defendant when the investigation was started.

Textual Amendments

F637S. 195B(2)(b) omitted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by virtue of Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 38(a); S.R. 2024/82, art. 2

F639S. 195B(3)(b) omitted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by virtue of Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 38(b); S.R. 2024/82, art. 2

195CPower to seize propertyN.I.

(1)On being satisfied as mentioned in section 195B(1) an appropriate officer may seize any realisable property if the officer has reasonable grounds for suspecting that—

(a)the property may otherwise be made unavailable for satisfying any confiscation order that has been or may be made against the defendant, or

(b)the value of the property may otherwise be diminished as a result of conduct by the defendant or any other person.

(2)But the officer may not [F640under subsection (1)] seize—

(a)cash, or

(b)exempt property.

(3)“Cash” has the same meaning as in section 289.

(4)“Exempt property” means—

(a)such tools, books, vehicles and other items of equipment as are necessary to the defendant for use personally in the defendant's employment, business or vocation;

(b)such clothing, bedding, furniture, household equipment, provisions or other things as are necessary for satisfying the basic domestic needs of the defendant and the defendant's family.

(5)In relation to realisable property which is free property held by the recipient of a tainted gift, references in subsection (4) to the defendant are to be read as references to the recipient of that gift.

Section 195B(11) is subject to this subsection.

[F641(5A)On being satisfied as mentioned in section 195B(1) an appropriate officer may seize any free property if the officer has reasonable grounds for suspecting that it is a cryptoasset-related item.

(5B)A “cryptoasset-related item” is an item of property that is, or that contains or gives access to information that is, likely to assist in the seizure under subsection (1) of any cryptoasset.

(5C)The circumstances in which a cryptoasset is “seized” for the purposes of subsection (1) include circumstances in which it is transferred into a crypto wallet controlled by the appropriate officer.

(5D)If an appropriate officer is lawfully on any premises, the officer may, for the purpose of—

(a)determining whether any property is a cryptoasset-related item, or

(b)enabling or facilitating the seizure under subsection (1) of any cryptoasset,

require any information which is stored in any electronic form and accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible, or from which it can readily be produced in a visible and legible form.

(5E)But subsection (5D) does not authorise an appropriate officer to require a person to produce information which the person would be entitled to refuse to provide on grounds of legal professional privilege in proceedings in the High Court.

(5F)Where an appropriate officer has seized a cryptoasset-related item under subsection (5A), they may use any information obtained from it for the purpose of—

(a)identifying or gaining access to a crypto wallet, and

(b)by doing so, enabling or facilitating the seizure under subsection (1) of any cryptoassets.]

(6)The power conferred by this section—

(a)may be exercised only with the appropriate approval under section 195G unless, in the circumstances, it is not practicable to obtain that approval before exercising the power, and

[F642(aa)where applicable, in accordance with subsection (6A) or (6B).]

[F643(6A)The power conferred by this section is exercisable] by an officer of Revenue and Customs only if the officer has reasonable grounds for suspecting that conduct constituting the relevant offence relates to an assigned matter (within the meaning of the Customs and Excise Management Act 1979).

[F644(6B)The power conferred by this section is exercisable by an immigration officer only if the officer has reasonable grounds for suspecting that conduct constituting the relevant offence—

(a)relates to the entitlement of one or more persons who are not nationals of the United Kingdom to enter, transit across, or be in, the United Kingdom (including conduct which relates to conditions or other controls on any such entitlement), or

(b)is undertaken for the purposes of, or otherwise in relation to, a relevant nationality enactment.]

(7)“Relevant offence” means—

(a)in a case where the officer is satisfied that the first, second, third or fourth condition in section 195B is met, the offence mentioned in that condition,

(b)in a case where the officer is satisfied that any of the other conditions in section 195B is met, the offence (or any of the offences) concerned.

[F645(8)Relevant nationality enactment” means any enactment in—

(a)the British Nationality Act 1981,

(b)the Hong Kong Act 1985,

(c)the Hong Kong (War Wives and Widows) Act 1996,

(d)the British Nationality (Hong Kong) Act 1997,

(e)the British Overseas Territories Act 2002, or

(f)an instrument made under any of those Acts.]

Textual Amendments

F640Words in s. 195C(2) inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 39(2); S.R. 2024/82, art. 2

F641S. 195C(5A)-(5F) inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 39(3); S.R. 2024/82, art. 2

195DSearch power: premisesN.I.

(1)If an appropriate officer is lawfully on any premises the officer may search the premises for the purpose of finding any property which—

(a)the officer has reasonable grounds for suspecting may be found there, and

(b)if found there, the officer intends to seize under section 195C.

(2)The power conferred by this section may be exercised only with the appropriate approval under section 195G unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

(3)“Premises” has the meaning given by Article 25 of the Police and Criminal Evidence (Northern Ireland) Order 1989.

195ESearch power: peopleN.I.

(1)An appropriate officer may exercise the following powers if the officer has reasonable grounds for suspecting that a person is carrying property that may be seized under section 195C.

(2)The officer may, so far as the officer thinks it necessary or expedient for the purpose of seizing the property under that section, require the person—

(a)to permit a search of any article with the person,

(b)to permit a search of the person.

(3)An officer exercising a power under subsection (2) may detain the person for so long as is necessary for its exercise.

(4)A power conferred by this section may be exercised only with the appropriate approval under section 195G unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

(5)This section does not require a person to submit to an intimate search or strip search (within the meaning of section 164 of the Customs and Excise Management Act 1979).

195FSearch power: vehiclesN.I.

(1)The powers specified in subsection (4) are exercisable if—

(a)an appropriate officer has reasonable grounds for suspecting that a vehicle contains property that may be seized under section 195C, and

(b)it appears to the officer that the vehicle is under the control of a person who is in or in the vicinity of the vehicle.

(2)The powers are exercisable only if the vehicle is—

(a)in any place to which, at the time of the proposed exercise of the powers, the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission, or

(b)in any other place to which at that time people have ready access but which is not a dwelling.

(3)But if the vehicle is in a garden or yard or other land occupied with and used for the purposes of a dwelling, the officer may exercise the powers under subsection (4) only if the officer has reasonable grounds for believing—

(a)that the person does not reside in the dwelling, and

(b)that the vehicle is not in the place in question with the express or implied permission of another who resides in the dwelling.

(4)The officer may, so far as the officer thinks it necessary or expedient for the purpose of seizing the property under section 195C, require the person to—

(a)permit entry to the vehicle,

(b)permit a search of the vehicle.

(5)An officer exercising a power under subsection (4) may detain the vehicle for so long as is necessary for its exercise.

(6)A power conferred by this section may be exercised only with the appropriate approval under section 195G unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

195G“Appropriate approval”N.I.

(1)This section has effect for the purposes of sections 195C, 195D, 195E and 195F.

(2)The appropriate approval, in relation to the exercise of a power by an appropriate officer, means the approval of a lay magistrate or (if that is not practicable in any case) the approval of a senior officer.

(3)A senior officer means—

(a)in relation to the exercise of a power by an officer of Revenue and Customs, an officer of Revenue and Customs of a rank designated by the Commissioners for Her Majesty's Revenue and Customs as equivalent to that of a senior police officer,

[F646(aa)in relation to the exercise of a power by an immigration officer, an immigration officer of a rank designated by the Secretary of State as equivalent to that of a senior police officer,]

[F647(ba)in relation to the exercise of a power by an accredited financial investigator who is a member of staff of the Police Service of Northern Ireland, a senior police officer,]

[F648(ab)in relation to the exercise of a power by a National Crime Agency officer, the Director General of the National Crime Agency or any other National Crime Agency officer authorised by the Director General (whether generally or specifically) for this purpose,]

[F649(ac)in relation to the exercise of a power by an SFO officer, the Director of the Serious Fraud Office,]

(b)in relation to the exercise of a power by a constable, a senior police officer,

(c)in relation to the exercise of a power by an accredited financial investigator [F650who does not fall within any of the preceding paragraphs], an accredited financial investigator who falls within a description specified in an order made for this purpose by the Secretary of State under section 453.

(4)A senior police officer means a police officer of at least the rank of inspector.

Textual Amendments

F647S. 195G(3)(ba) inserted (27.4.2017 for specified purposes, 28.6.2021 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 31(3), 58(3)(6); S.R. 2021/167, reg. 2(b)

F649S. 195G(3)(ac) inserted (27.4.2017 for specified purposes, 28.6.2021 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 8; S.I. 2021/724, reg. 3(b)

F650Words in s. 195G(3)(c) inserted (27.4.2017 for specified purposes, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 26; S.I. 2021/724, reg. 4(f)

195HExercise of powers without judicial approvalN.I.

(1)An appropriate officer must give a written report to the appointed person in any case where—

(a)the officer seizes property under section 195C without the approval of a lay magistrate, and

(b)any of the property seized is not detained for more than 48 hours.

(2)An appropriate officer must also give a written report to the appointed person in any case where—

(a)the officer exercises any of the powers conferred by sections 195D, 195E and 195F without the approval of a lay magistrate, and

(b)no property is seized under section 195C.

(3)A report under this section must give particulars of the circumstances which led the officer to believe that—

(a)the powers were exercisable, and

(b)it was not practicable to obtain the approval of a lay magistrate.

(4)The appointed person means a person appointed for the purposes of this subsection by the [F651Department of Justice] .

(5)The appointed person must not be a person employed under or for the purposes of a government department; and the terms and conditions of appointment, including any remuneration or expenses to be paid, are to be determined by the [F652Department of Justice] .

[F653(5A)“Government department” includes a Northern Ireland department.]

(6)The period of 48 hours mentioned in subsection (1)(b) is to be calculated in accordance with subsection (7).

(7)In calculating a period of 48 hours in accordance with this subsection, no account is to be taken of—

(a)any Saturday or Sunday,

(b)Christmas Day,

(c)Good Friday, or

(d)any day that is a bank holiday under the Banking and Financial Dealings Act 1971 in Northern Ireland.

Textual Amendments

F651Words in s. 195H(4) substituted (22.11.2014 for specified purposes, 1.3.2016 in so far as not already in force) by 2009 c. 26, s. 57(2) (as amended by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2012 (S.I. 2012/2595), arts. 1(2), 18(2)(a) (with arts. 24-28); S.I. 2014/3101, art. 3; S.I. 2016/147, art. 3(b))

F652Words in s. 195H(5) substituted (22.11.2014 for specified purposes, 1.3.2016 in so far as not already in force) by 2009 c. 26, s. 57(2) (as amended by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2012 (S.I. 2012/2595), arts. 1(2), 18(2)(b) (with arts. 24-28); S.I. 2014/3101, art. 3; S.I. 2016/147, art. 3(b))

F653S. 195H(5A) inserted (22.11.2014 for specified purposes, 1.3.2016 in so far as not already in force) by 2009 c. 26, s. 57(2) (as amended by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2012 (S.I. 2012/2595), arts. 1(2), 18(2)(c) (with arts. 24-28); S.I. 2014/3101, art. 3; S.I. 2016/147, art. 3(b))

195IReport by appointed person on exercise of powersN.I.

(1)As soon as possible after the end of each financial year, the person appointed under section 195H(4) must prepare a report for that year.

(2)“Financial year” means—

(a)the period beginning with the day on which section 57 of the Policing and Crime Act 2009 comes into force and ending with the next 31 March (which is the first financial year), and

(b)each subsequent period of twelve months beginning with 1 April.

(3)The report must give the appointed person's opinion as to the circumstances and manner in which the powers conferred by sections 195C, 195D, 195E and 195F are being exercised in cases where the officer who exercised them is required to give a report under section 195H.

(4)The report may make any recommendations the appointed person considers appropriate.

(5)The appointed person must send a copy of the report to the [F654Department of Justice] .

(6)The [F655Department of Justice] must—

(a)publish any report received under subsection (5), and

(b)lay a copy before [F656the Northern Ireland Assembly] .

[F657(6A)Section 41(3) of the Interpretation Act (Northern Ireland) 1954 applies for the purposes of subsection (6)(b) in relation to the laying of a copy of a report as it applies in relation to the laying of a statutory document under an enactment.]

(7)Before acting under subsection (6) the [F658Department of Justice] must exclude from the report any matter which the [F658Department of Justice] thinks is likely to prejudice any criminal investigation or criminal proceedings.

(8)If the [F658Department of Justice] excludes any matter from the report the [F658Department of Justice] must comply with subsection (6) in relation to the whole of the report as soon as the [F658Department of Justice] thinks that the excluded matter is no longer likely to prejudice any criminal investigation or criminal proceedings.

Textual Amendments

F654Words in s. 195I(5) substituted (22.11.2014 for specified purposes, 1.3.2016 in so far as not already in force) by 2009 c. 26, s. 57(2) (as amended by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2012 (S.I. 2012/2595), arts. 1(2), 18(2)(d) (with arts. 24-28); S.I. 2014/3101, art. 3; S.I. 2016/147, art. 3(b))

F655Words in s. 195I(6) substituted (22.11.2014 for specified purposes, 1.3.2016 in so far as not already in force) by 2009 c. 26, s. 57(2) (as amended by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2012 (S.I. 2012/2595), arts. 1(2), 18(2)(e) (with arts. 24-28); S.I. 2014/3101, art. 3; S.I. 2016/147, art. 3(b))

F656Words in s. 195I(6)(b) substituted (22.11.2014 for specified purposes, 1.3.2016 in so far as not already in force) by 2009 c. 26, s. 57(2) (as amended by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2012 (S.I. 2012/2595), arts. 1(2), 18(2)(f) (with arts. 24-28); S.I. 2014/3101, art. 3; S.I. 2016/147, art. 3(b))

F657S. 195I(6A) inserted (22.11.2014 for specified purposes, 1.3.2016 in so far as not already in force) by 2009 c. 26, s. 57(2) (as amended by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2012 (S.I. 2012/2595), arts. 1(2), 18(2)(g) (with arts. 24-28); S.I. 2014/3101, art. 3; S.I. 2016/147, art. 3(b))

F658Words in s. 195I(7)(8) substituted (22.11.2014 for specified purposes, 1.3.2016 in so far as not already in force) by 2009 c. 26, s. 57(2) (as amended by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2012 (S.I. 2012/2595), arts. 1(2), 18(2)(h) (with arts. 24-28); S.I. 2014/3101, art. 3; S.I. 2016/147, art. 3(b))

195JInitial detention of seized propertyN.I.

(1)This section applies if an appropriate officer seizes property under section 195C.

(2)The property may be detained initially for a period of 48 hours.

(3)The period of 48 hours is to be calculated in accordance with section 195H(7).

195KFurther detention pending making of restraint orderN.I.

(1)This section applies if—

(a)property is detained under section 195J, and

(b)no restraint order is in force in respect of the property.

(2)If within the period mentioned in section 195J an application is made for a restraint order which includes provision under section 190A authorising detention of the property, the property may be detained until the application is determined or otherwise disposed of.

(3)If such an application is made within that period and the application is refused, the property may be detained until there is no further possibility of an appeal against—

(a)the decision to refuse the application, or

(b)any decision made on an appeal against that decision.

(4)In subsection (2) the reference to the period mentioned in section 195J includes that period as extended by any order under section 195M.

[F659(5)Exempt property seized under section 195C(5A) may be detained under subsections (2) and (3) only with the approval of a senior officer.

(6)In subsection (5)—

  • “exempt property” has the meaning given in section 195C(4) (reading references there to the defendant as references to the person by whom the property is held);

  • “senior officer” has the meaning given in section 195G(3) (and for this purpose, the powers under subsections (2) and (3) to detain property are to be treated as exercised by the appropriate officer who seized the property).]

Textual Amendments

F659S. 195K(5)(6) inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 41; S.R. 2024/82, art. 2

195LFurther detention pending variation of restraint orderN.I.

(1)This section applies if—

(a)property is detained under section 195J,

(b)a restraint order is in force in respect of the property, and

(c)the order does not include provision under section 190A authorising the detention of the property.

(2)If within the period mentioned in section 195J an application is made for the order to be varied so as to include provision under section 190A authorising detention of the property, the property may be detained until the application is determined or otherwise disposed of.

(3)If such an application is made within that period and the application is refused, the property may be detained until there is no further possibility of an appeal against—

(a)the decision to refuse the application, or

(b)any decision made on an appeal against that decision.

[F660(4)Exempt property seized under section 195C(5A) may be detained under subsections (2) and (3) only with the approval of a senior officer.

(5)In subsection (4)—

  • “exempt property” has the meaning given in section 195C(4) (reading references there to the defendant as references to the person by whom the property is held);

  • “senior officer” has the meaning given in section 195G(3) (and for this purpose, the powers under subsections (2) and (3) to detain property are to be treated as exercised by the appropriate officer who seized the property).]

Textual Amendments

F660S. 195L(4)(5) inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 42; S.R. 2024/82, art. 2

195MFurther detention in other casesN.I.

(1)This section applies if—

(a)property is detained under section 195J,

(b)no restraint order is in force in respect of the property, and

(c)no application has been made for a restraint order which includes provision under section 190A authorising detention of the property.

(2)A magistrates' court may by order extend the period for which the property or any part of it may be detained under section 195J if satisfied that—

(a)any of the conditions in section 195B is met (reading references in that section to the officer as references to the court),

(b)the property or part is realisable property other than exempt property F661..., and

(c)there are reasonable grounds for suspecting that—

(i)the property may otherwise be made unavailable for satisfying any confiscation order that has been or may be made against the defendant, or

(ii)the value of the property may otherwise be diminished as a result of conduct by the defendant or any other person.

[F662(2A)A magistrates’ court may by order extend the period for which the property may be detained under section 195J if satisfied that—

(a)any of the conditions in section 195B is met (reading references in that section to the officer as references to the court),

(b)the property is free property, and

(c)there are reasonable grounds for suspecting that the property is a cryptoasset-related item.

(2B)An order under subsection (2A) may not be made in respect of exempt property unless the court is satisfied that the person applying for the order is working diligently and expeditiously—

(a)to determine whether the property is a cryptoasset-related item, or

(b)if it has already been determined to be such an item, to seize any related cryptoassets under section 195C(1).

(2C)An order under subsection (2A) may not extend the period for which the property may be detained beyond the period of—

(a)six months beginning with the date of the order, or

(b)in the case of exempt property, 14 days beginning with that date.

This does not prevent the period from being further extended by another order under this section.

(2D)The period of 14 days referred to in subsection (2C)(b) is to be calculated in accordance with section 195H(7) (reading the reference there to 48 hours as a reference to 14 days).]

(3)An application for an order may be made by—

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

[F663(aa)an immigration officer;]

(b)a constable,

[F664(ba)an SFO officer,]

(c)an accredited financial investigator, or

(d)the prosecutor.

(4)If the property was seized in reliance on the first or second condition in section 195B, “the prosecutor” means a person who is to have conduct of any proceedings for the offence.

(5)An order under this section must provide for notice to be given to persons affected by it.

(6)In this section—

  • [F665“exempt property” has the meaning given in section 195C(4) (reading references there to the defendant as references to the person by whom the property is held);]

  • “part” includes portion.

Textual Amendments

F661Words in s. 195M(2)(b) omitted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by virtue of Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 43(2); S.R. 2024/82, art. 2

F662S. 195M(2A)-(2D) inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 43(3); S.R. 2024/82, art. 2

F664S. 195M(3)(ba) inserted (27.4.2017 for specified purposes, 28.6.2021 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 9; S.I. 2021/724, reg. 3(b)

F665Words in s. 195M(6) inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 43(4); S.R. 2024/82, art. 2

195NDischarge, variation and lapse of detention orderN.I.

(1)An order under section [F666195M] may be discharged or varied.

(2)An application for variation or discharge of the order may be made by—

(a)a person mentioned in section 195M(3), or

(b)any person affected by the order.

(3)On an application under this section the court must discharge the order if—

(a)the order was made on the ground that the first or second condition in section 195B was met but proceedings for the offence mentioned in that condition have not been started within a reasonable time,

(b)the order was made on the ground that the third or fourth condition in section 195B was met but proceedings for the offence mentioned in that condition have now been concluded,

(c)the order was made on the ground that the fifth, sixth or seventh condition in section 195B was met but the application mentioned in that condition has now been concluded or, as the case may be, has not been made within a reasonable time.

(4)An order made under section 195M lapses if a restraint order is made in respect of the property to which it relates (but provision authorising detention of the property may have been included in the restraint order by virtue of section 190A).

Textual Amendments

F666Word in s. 195N(1) substituted (5.5.2011) by Justice Act (Northern Ireland) 2011 (c. 24 (N.I.)), s. 111(1), Sch. 7 para. 11

195OAppealsN.I.

(1)If on an application for an order under section 195M the court decides not to make one, a person mentioned in subsection (3) of that section may appeal to the county court against the decision.

(2)If an application is made under section 195N in relation to an order the following persons may appeal to the county court in respect of the magistrates' court's decision on the application—

(a)a person mentioned in section 195M(3), or

(b)any person affected by the order.

195PDetention of property pending section 195O appealN.I.

(1)This section applies where—

(a)an application for an order under section 195M is made within the period mentioned in section 195J, and

(b)the application is refused.

(2)This section also applies where—

(a)an order is made under section 195M extending the period for which property may be detained under section 195J, and

(b)the order is discharged or varied so that detention of the property is no longer authorised by virtue of the order.

(3)The property may be detained until there is no further possibility of an appeal against the decision to refuse the application or discharge or vary the order (as the case may be).

195QHearsay evidence in detention order proceedingsN.I.

(1)Evidence must not be excluded in detention order proceedings on the ground that it is hearsay (of whatever degree).

(2)Articles 4 and 5 of the Civil Evidence (Northern Ireland) Order 1997 apply in relation to detention order proceedings as those articles apply in relation to civil proceedings.

(3)Detention order proceedings are proceedings—

(a)for an order under section 195M;

(b)for the discharge or variation of such an order;

(c)on an appeal under section 195O.

(4)Hearsay is a statement which is made otherwise than by a person while giving oral evidence in the proceedings and which is tendered as evidence of the matters stated.

(5)Nothing in this section affects the admissibility of evidence which is admissible apart from this section.

195RRelease of propertyN.I.

(1)This section applies in relation to property which—

(a)has been seized by an appropriate officer under section 195C, and

(b)is detained under or by virtue of any of sections 195J to 195M and 195P.

(2)The property must be released if at any time an appropriate officer decides that the detention condition is no longer met.

(3)The detention condition is met for so long as—

(a)any of the conditions in section 195B is met, and

(b)there are reasonable grounds for the suspicion mentioned in section 195C(1) [F667or (5A)].

(4)Nothing in this section requires property to be released if there is a power to detain it otherwise than under or by virtue of sections 195J to 195M and 195P.

(5)Nothing in this section affects the operation of any power or duty to release property that arises apart from this section.

[F668(6)If a cryptoasset-related item which has been released is not claimed within the period of a year beginning with the date on which it was released, the appropriate officer may—

(a)retain the item and deal with it as they see fit,

(b)dispose of the item, or

(c)destroy the item.

(7)The powers in subsection (6) may be exercised only—

(a)where the appropriate officer has taken reasonable steps to notify—

(i)the person from whom the item was seized, and

(ii)any other persons who the appropriate officer has reasonable grounds to believe have an interest in the item,

that the item has been released, and

(b)with the approval of a senior officer.

(8)“Senior officer” in subsection (7)(b) has the meaning given in section 195G(3).

(9)Any proceeds of a disposal of the item are to be paid into the Consolidated Fund.]

Textual Amendments

F667Words in s. 195R(3)(b) inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 40; S.R. 2024/82, art. 2

F668S. 195R(6)-(9) inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 44; S.R. 2024/82, art. 2

Code of practice about search and seizure and detention of property: Secretary of StateN.I.

195SCodes of practice [F669: Secretary of State] N.I.

(1)The Secretary of State must make a code of practice in connection with—

(a)the carrying out by [F670officers of Revenue and Customs] [F671, immigration officers and SFO officers] of the functions conferred by section 195C to 195H,

(b)the carrying out by senior officers of their functions under section 195G, and

F672(c)the detention of property [F673by officers of Revenue and Customs [F674, immigration officers] [F672, SFO officers] and members of staff of SOCA] [by officers of Revenue and Customs and [F675NCA officers]] under or by virtue of sections 190A, 193A and 195J to 195P.

[F676(1A)In subsection (1) senior officers means—

(a)officers of Revenue and Customs of a rank designated by the Commissioners for Her Majesty’s Revenue and Customs as equivalent to that of a senior police officer,

(b)immigration officers of a rank designated by the Secretary of State as equivalent to that of a senior police officer.

[F677(c)the Director of the Serious Fraud Office.]

(1B)A senior police officer means a police officer of at least the rank of inspector.]

(2)Where the Secretary of State proposes to issue a code of practice the Secretary of State must—

(a)publish a draft,

(b)consider any representations made about the draft,

(c)if the Secretary of State thinks appropriate, modify the draft in the light of any such representations.

[F678(2A)The Secretary of State must also consult the Attorney General about the draft in its application to the exercise of powers by SFO officers and the Director of the Serious Fraud Office.]

(3)The Secretary of State must lay a draft of the code before Parliament.

(4)When the Secretary of State has laid a draft of the code before Parliament the Secretary of State may bring it into operation by order.

(5)The Secretary of State may revise the whole or any part of the code and issue the code as revised; and subsections (2) to (4) apply to such a revised code as they apply to the original code.

(6)A failure by a person to comply with a provision of the code does not of itself make the person liable to criminal or civil proceedings.

(7)The code is admissible in evidence in criminal or civil proceedings and is to be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant.

Textual Amendments

F669Words in s. 195S title inserted (22.11.2014 for specified purposes, 1.3.2016 in so far as not already in force) by 2009 c. 26, s. 57(2) (as amended by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2012 (S.I. 2012/2595), arts. 1(2), 18(2)(i) (with arts. 24-28); S.I. 2014/3101, art. 3; S.I. 2016/147, art. 3(b))

F670Words in s. 195S(1)(a) substituted (22.11.2014 for specified purposes, 1.3.2016 in so far as not already in force) by 2009 c. 26, s. 57(2) (as amended by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2012 (S.I. 2012/2595), arts. 1(2), 18(2)(j) (with arts. 24-28); S.I. 2014/3101, art. 3; S.I. 2016/147, art. 3(b))

F671Words in s. 195S(1)(a) substituted (27.4.2017 for specified purposes, 28.6.2021 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 10(2)(a); S.I. 2021/724, reg. 3(b)

F672Words in s. 195S(1)(c) inserted (27.4.2017 for specified purposes, 28.6.2021 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 10(2)(b); S.I. 2021/724, reg. 3(b)

F673Words in s. 195S(1)(c) inserted (22.11.2014 for specified purposes, 1.3.2016 in so far as not already in force) by 2009 c. 26, s. 57(2) (as amended by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2012 (S.I. 2012/2595), arts. 1(2), 18(2)(k) (with arts. 24-28); S.I. 2014/3101, art. 3; S.I. 2016/147, art. 3(b))

F675Words in s. 195S(1)(c) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 118; S.I. 2013/1682, art. 3(v)

F677S. 195S(1A)(c) inserted (27.4.2017 for specified purposes, 28.6.2021 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 10(3); S.I. 2021/724, reg. 3(b)

F678S. 195S(2A) inserted (27.4.2017 for specified purposes, 28.6.2021 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 10(4); S.I. 2021/724, reg. 3(b)

195TCodes of practice: Department of JusticeN.I.

(1)The Department of Justice must make a code of practice in connection with—

(a)the carrying out by constables and accredited financial investigators of the functions conferred by sections 195C to 195H,

(b)the carrying out by senior officers of their functions under section 195G, and

(c)the detention of property by—

(i)constables,

(ii)accredited financial investigators, and

(iii)members of staff of the relevant director (within the meaning of section 352(5A)(b)),

under or by virtue of sections 190A, 193A and 195J to 195P.

(2)In subsection (1)(b) senior officers means—

(a)police officers of at least the rank of inspector,

(b)accredited financial investigators who fall within a description specified in an order made for this purpose by the Secretary of State under section 453.

(3)Where the Department of Justice proposes to issue a code of practice the Department of Justice must—

(a)publish a draft,

(b)consider any representations made about the draft,

(c)if the Department of Justice thinks appropriate, modify the draft in the light of any such representations.

(4)The Department of Justice must lay a draft of the code before the Northern Ireland Assembly.

(5)When the Department of Justice has laid a draft of the code before the Assembly the Department of Justice may bring it into operation by order.

(6)Section 41(3) of the Interpretation Act (Northern Ireland) 1954 applies for the purposes of subsection (4) in relation to the laying of a draft as it applies in relation to the laying of a statutory document under an enactment.

(7)The Department of Justice may revise the whole or any part of the code and issue the code as revised; and subsections (3) to (6) apply to such a revised code as they apply to the original code.

(8)A failure by a person to comply with a provision of the code does not of itself make the person liable to criminal or civil proceedings.

(9)The code is admissible in evidence in criminal or civil proceedings and is to be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant.]

Management receiversN.I.

196 AppointmentN.I.

(1)Subsection (2) applies if—

(a)the High Court makes a restraint order, and

(b)the applicant for the restraint order applies to the court to proceed under subsection (2) (whether as part of the application for the restraint order or at any time afterwards).

(2)The High Court may by order appoint a receiver in respect of any realisable property to which the restraint order applies.

Commencement Information

I185S. 196 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

197 PowersN.I.

(1)If the court appoints a receiver under section 196 it may act under this section on the application of the person who applied for the restraint order.

(2)The court may by order confer on the receiver the following powers in relation to any realisable property to which the restraint order applies—

(a)power to take possession of the property;

(b)power to manage or otherwise deal with the property;

(c)power to start, carry on or defend any legal proceedings in respect of the property;

(d)power to realise so much of the property as is necessary to meet the receiver’s remuneration and expenses.

(3)The court may by order confer on the receiver power to enter any premises in Northern Ireland and to do any of the following—

(a)search for or inspect anything authorised by the court;

(b)make or obtain a copy, photograph or other record of anything so authorised;

(c)remove anything which the receiver is required or authorised to take possession of in pursuance of an order of the court.

(4)The court may by order authorise the receiver to do any of the following for the purpose of the exercise of his functions—

(a)hold property;

(b)enter into contracts;

(c)sue and be sued;

(d)employ agents;

(e)execute powers of attorney, deeds or other instruments;

(f)take any other steps the court thinks appropriate.

(5)The court may order any person who has possession of realisable property to which the restraint order applies to give possession of it to the receiver.

(6)The court—

(a)may order a person holding an interest in realisable property to which the restraint order applies to make to the receiver such payment as the court specifies in respect of a beneficial interest held by the defendant or the recipient of a tainted gift;

(b)may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

(7)Subsections (2), (5) and (6) do not apply to property for the time being subject to a charge under any of these provisions—

(a)section 9 of the Drug Trafficking Offences Act 1986 (c. 32);

(b)section 78 of the Criminal Justice Act 1988 (c. 33);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));

(d)section 27 of the Drug Trafficking Act 1994 (c. 37);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

(8)The court must not—

(a)confer the power mentioned in subsection (2)(b) or (d) in respect of property, or

(b)exercise the power conferred on it by subsection (6) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

[F679(8A)Subsection (8), so far as relating to the power mentioned in subsection (2)(b), does not apply to property which—

(a)is perishable; or

(b)ought to be disposed of before its value diminishes.]

(9)The court may order that a power conferred by an order under this section is subject to such conditions and exceptions as it specifies.

(10)Managing or otherwise dealing with property includes—

(a)selling the property or any part of it or interest in it;

(b)carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

(c)incurring capital expenditure in respect of the property.

Textual Amendments

Modifications etc. (not altering text)

Commencement Information

I186S. 197 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

Enforcement receiversN.I.

198 AppointmentN.I.

(1)This section applies if—

(a)a confiscation order is made,

(b)it is not satisfied, and

(c)it is not subject to appeal.

(2)On the application of the prosecutor the Crown Court may by order appoint a receiver in respect of realisable property.

Commencement Information

I187S. 198 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

199 PowersN.I.

(1)If the court appoints a receiver under section 198 it may act under this section on the application of the prosecutor.

(2)The court may by order confer on the receiver the following powers in relation to the realisable property—

(a)power to take possession of the property;

(b)power to manage or otherwise deal with the property;

(c)power to realise the property, in such manner as the court may specify;

(d)power to start, carry on or defend any legal proceedings in respect of the property.

[F680(e)so far as the property consists of cryptoassets, power to destroy the property.]

(3)The court may by order confer on the receiver power to enter any premises in Northern Ireland and to do any of the following—

(a)search for or inspect anything authorised by the court;

(b)make or obtain a copy, photograph or other record of anything so authorised;

(c)remove anything which the receiver is required or authorised to take possession of in pursuance of an order of the court.

(4)The court may by order authorise the receiver to do any of the following for the purpose of the exercise of his functions—

(a)hold property;

(b)enter into contracts;

(c)sue and be sued;

(d)employ agents;

(e)execute powers of attorney, deeds or other instruments;

(f)take any other steps the court thinks appropriate.

(5)The court may order any person who has possession of realisable property to give possession of it to the receiver.

(6)The court—

(a)may order a person holding an interest in realisable property to make to the receiver such payment as the court specifies in respect of a beneficial interest held by the defendant or the recipient of a tainted gift;

(b)may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

(7)Subsections (2), (5) and (6) do not apply to property for the time being subject to a charge under any of these provisions—

(a)section 9 of the Drug Trafficking Offences Act 1986 (c. 32);

(b)section 78 of the Criminal Justice Act 1988 (c. 33);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));

(d)section 27 of the Drug Trafficking Act 1994 (c. 37);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

(8)The court must not—

(a)confer the power mentioned in subsection (2)(b) [F681, (c) or (e)] in respect of property, or

(b)exercise the power conferred on it by subsection (6) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

[F682(8A)Subsection (8), so far as relating to the power mentioned in subsection (2)(b), does not apply to property which—

(a)is perishable; or

(b)ought to be disposed of before its value diminishes.]

[F683(8B)Representations that a person is entitled to make by virtue of subsection (8) do not include representations that are inconsistent with a determination made under section 160A, unless—

(a)the person was not given a reasonable opportunity to make representations when the determination was made and has not appealed against the determination, or

(b)it appears to the court that there would be a serious risk of injustice to the person if the court was bound by the determination;

and the determination does not bind the court if paragraph (a) or (b) applies.]

(9)The court may order that a power conferred by an order under this section is subject to such conditions and exceptions as it specifies.

[F684(9A)The court may confer the power mentioned in subsection (2)(e) only where—

(a)it is not reasonably practicable to realise the cryptoassets in question, or

(b)there are reasonable grounds to believe that the realisation of the cryptoassets would be contrary to the public interest, having regard in particular to how likely it is that the entry of the cryptoassets into general circulation would facilitate criminal conduct by any person.

(9B)An order conferring that power—

(a)must set out the court’s assessment of the market value of the cryptoassets to which it relates;

(b)may confer power to destroy the cryptoassets only to the extent that their market value, as set out in the order, is less than or equal to the amount remaining to be paid under the confiscation order.

(9C)If the receiver destroys any cryptoassets in the exercise of that power, the defendant is to be treated as having paid, towards satisfaction of the confiscation order, an amount equal to the market value, as set out in the order, of the cryptoassets which have been destroyed.]

(10)Managing or otherwise dealing with property includes—

(a)selling the property or any part of it or interest in it;

(b)carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

(c)incurring capital expenditure in respect of the property.

Textual Amendments

F680S. 199(2)(e) inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 46(2); S.R. 2024/82, art. 2

F681Words in s. 199(8)(a) substituted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 46(3); S.R. 2024/82, art. 2

F684S. 199(9A)-(9C) inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 46(4); S.R. 2024/82, art. 2

Modifications etc. (not altering text)

Commencement Information

I188S. 199 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

Director’s receiversN.I.

F685200 AppointmentN.I.

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

Textual Amendments

F686201 PowersN.I.

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

Textual Amendments

Application of sumsN.I.

202 Enforcement receiversN.I.

(1)This section applies to sums which are in the hands of a receiver appointed under section 198 if they are—

(a)the proceeds of the realisation of property under section 199;

(b)sums (other than those mentioned in paragraph (a)) in which the defendant holds an interest.

(2)The sums must be applied as follows—

(a)first, they must be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under this subsection by virtue of section 432;

(b)second, they must be applied in making any payments directed by the Crown Court;

(c)third, they must be applied on the defendant’s behalf towards satisfaction of the confiscation order.

(3)If the amount payable under the confiscation order has been fully paid and any sums remain in the receiver’s hands he must distribute them—

(a)among such persons who held (or hold) interests in the property concerned as the Crown Court directs, and

(b)in such proportions as it directs.

(4)Before making a direction under subsection (3) the court must give persons who held (or hold) interests in the property concerned a reasonable opportunity to make representations to it.

(5)For the purposes of subsections (3) and (4) the property concerned is—

(a)the property represented by the proceeds mentioned in subsection (1)(a);

(b)the sums mentioned in subsection (1)(b).

(6)The receiver applies sums as mentioned in subsection (2)(c) by paying them to the appropriate chief clerk on account of the amount payable under the order.

(7)The appropriate chief clerk is the chief clerk of the court at the place where the confiscation order was made.

Commencement Information

I189S. 202 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

203 Sums received by chief clerkN.I.

(1)This section applies if a chief clerk receives sums on account of the amount payable under a confiscation order (whether the sums are received under section 202 or otherwise).

(2)The chief clerk’s receipt of the sums reduces the amount payable under the order, but he must apply the sums received as follows.

(3)First he must apply them in payment of such expenses incurred by a person acting as an insolvency practitioner as—

(a)are payable under this subsection by virtue of section 432, but

(b)are not already paid under section 202(2)(a) [F687or 215D(2)(a)] .

(4)If the chief clerk received the sums under section 202 [F688or 215D] he must next apply them—

(a)first, in payment of the remuneration and expenses of a receiver appointed under section 196, to the extent that they have not been met by virtue of the exercise by that receiver of a power conferred under section 197(2)(d);

(b)second, in payment of the remuneration and expenses of [F689any receiver] appointed under section 198.

[F690(c)third, in payment to an appropriate officer of any amount to which the officer is entitled by virtue of section 215B.]

(5)If a direction was made under section 163(6) for an amount of compensation to be paid out of sums recovered under the confiscation order, the chief clerk must next apply the sums in payment of that amount.

(6)If any amount remains after the chief clerk makes any payments required by the preceding provisions of this section, the amount must be treated for the purposes of section 20 of the Administration of Justice Act (Northern Ireland) 1954 (c. 9 (N.I.)) (application of fines) as if it were a fine.

[F691(7)Subsection (4) does not apply in relation to the remuneration of a receiver if the receiver is a person falling within subsection (8).

(8)The following fall within this subsection—

(a)a constable,

(b)a member of staff of the Northern Ireland Policing Board,

(c)an accredited financial investigator,

(d)a member of staff of the Public Prosecution Service for Northern Ireland,

(e)a member of staff of the Serious Fraud Office,

(f)a member of staff of a Northern Ireland department,

(g)a member of staff of the Commissioners for Her Majesty's Revenue and Customs,

[F692(h)a National Crime Agency officer.]

(9)It is immaterial for the purposes of subsection (7) whether a person falls within subsection (8) by virtue of a permanent or temporary appointment or a secondment from elsewhere.

(10)The reference in subsection (8) to an accredited financial investigator is a reference to an accredited financial investigator who falls within a description specified in an order made for the purposes of that subsection by the Secretary of State under section 453.]

Textual Amendments

F691S. 203(7)-(10) substituted for s. 203(7) (25.1.2010) by Policing and Crime Act 2009 (c. 26), ss. 51(3), 116(1); S.I. 2009/3096, art. 3(f)

Commencement Information

I190S. 203 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

204 Director’s receiversN.I.

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

F693205 Sums received by DirectorN.I.

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

Textual Amendments

RestrictionsN.I.

206 Restraint ordersN.I.

(1)Subsections (2) and (3) apply if a court makes a restraint order.

(2)If the order applies to a tenancy of any premises, no landlord or other person to whom rent is payable may exercise a right within subsection (3) except with the leave of the High Court and subject to any terms the High Court may impose.

(3)A right is within this subsection if it is a right of forfeiture by peaceable re-entry in relation to the premises in respect of any failure by the tenant to comply with any term or condition of the tenancy.

(4)If a court in which proceedings are pending in respect of any property is satisfied that a restraint order has been applied for or made in respect of the property, the court may either stay the proceedings or allow them to continue on any terms it thinks fit.

(5)Before exercising any power conferred by subsection (4), the court must give an opportunity to be heard to—

(a)the applicant for the restraint order, and

(b)any receiver appointed in respect of the property under section 196[F694or 198].

Textual Amendments

F694Words in s. 206(5)(b) substituted (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 59; S.I. 2008/755, art. 2(1)(a) (with arts. 3-14)

Commencement Information

I191S. 206 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

207 Enforcement receiversN.I.

(1)Subsections (2) and (3) apply if a court makes an order under section 198 appointing a receiver in respect of any realisable property.

(2)If the receiver is appointed in respect of a tenancy of any premises, no landlord or other person to whom rent is payable may exercise a right within subsection (3) except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

(3)A right is within this subsection if it is a right of forfeiture by peaceable re-entry in relation to the premises in respect of any failure by the tenant to comply with any term or condition of the tenancy.

(4)If a court in which proceedings are pending in respect of any property is satisfied that an order under section 198 appointing a receiver in respect of the property has been applied for or made, the court may either stay the proceedings or allow them to continue on any terms it thinks fit.

(5)Before exercising any power conferred by subsection (4), the court must give an opportunity to be heard to—

(a)the prosecutor, and

(b)the receiver (if the order under section 198 has been made).

Commencement Information

I192S. 207 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

F695208 Director’s receiversN.I.

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

Textual Amendments

Receivers: further provisionsN.I.

209 ProtectionN.I.

If a receiver appointed under section 196 [F696 or 198] —

(a)takes action in relation to property which is not realisable property,

(b)would be entitled to take the action if it were realisable property, and

(c)believes on reasonable grounds that he is entitled to take the action,

he is not liable to any person in respect of any loss or damage resulting from the action, except so far as the loss or damage is caused by his negligence.

Textual Amendments

Commencement Information

I193S. 209 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

210 Further applicationsN.I.

(1)This section applies to a receiver appointed under section 196 [F697or 198 ] .

(2)The receiver may apply—

(a)to the High Court if he is appointed under section 196;

(b)to the Crown Court if he is appointed under section 198 F698...,

for an order giving directions as to the exercise of his powers.

(3)The following persons may apply to the High Court if the receiver is appointed under section 196 or to the Crown Court if the receiver is appointed under section 198 F699...—

(a)any person affected by action taken by the receiver;

(b)any person who may be affected by action the receiver proposes to take.

(4)On an application under this section the court may make such order as it believes is appropriate.

Textual Amendments

Commencement Information

I194S. 210 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

211 Discharge and variationN.I.

(1)The following persons may apply to the High Court to vary or discharge an order made under section 196 or 197 or to the Crown Court to vary or discharge an order made under [F700section 198 or 199] —

(a)the receiver;

(b)the person who applied for the order F701...;

(c)any person affected by the order.

(2)On an application under this section the court—

(a)may discharge the order;

(b)may vary the order.

(3)But in the case of an order under section 196 or 197—

(a)if the condition in section 189 which was satisfied was that proceedings were started or an application was made, the court must discharge the order on the conclusion of the proceedings or of the application (as the case may be);

(b)if the condition which was satisfied was that an investigation was started or an application was to be made, the court must discharge the order if within a reasonable time proceedings for the offence are not started or the application is not made (as the case may be).

Textual Amendments

Commencement Information

I195S. 211 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

212 Management receivers: dischargeN.I.

(1)This section applies if—

(a)a receiver stands appointed under section 196 in respect of realisable property (the management receiver), and

(b)the court appoints a receiver under section 198 F702....

(2)The court must order the management receiver to transfer to the other receiver all property held by the management receiver by virtue of the powers conferred on him by section 197.

F703(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)Subsection (2) does not apply to property which the management receiver holds by virtue of the exercise by him of his power under section 197(2)(d).

(5)If the management receiver complies with an order under subsection (2) he is discharged—

(a)from his appointment under section 196;

(b)from any obligation under this Act arising from his appointment.

(6)If this section applies the court may make such a consequential or incidental order as it believes is appropriate.

Textual Amendments

Commencement Information

I196S. 212 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

213 Appeal to Court of AppealN.I.

(1)If on an application for an order under any of sections 196 to 199 F704... the court decides not to make one, the person who applied for the order may appeal to the Court of Appeal against the decision.

(2)If the court makes an order under any of sections 196 to 199 F705..., the following persons may appeal to the Court of Appeal in respect of the court’s decision—

(a)the person who applied for the order;

(b)any person affected by the order.

(3)If on an application for an order under section 210 the court decides not to make one, the person who applied for the order may appeal to the Court of Appeal against the decision.

(4)If the court makes an order under section 210, the following persons may appeal to the Court of Appeal in respect of the court’s decision—

(a)the person who applied for the order;

(b)any person affected by the order;

(c)the receiver.

(5)The following persons may appeal to the Court of Appeal against a decision of the court on an application under section 211—

(a)the person who applied for the order in respect of which the application was made F706...;

(b)any person affected by the court’s decision;

(c)the receiver.

(6)On an appeal under this section the Court of Appeal may—

(a)confirm the decision, or

(b)make such order as it believes if appropriate.

Textual Amendments

Commencement Information

I197S. 213 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

214 Appeal to [F707Supreme Court ] N.I.

(1)An appeal lies to the [F708Supreme Court ]from a decision of the Court of Appeal on an appeal under section 213.

(2)An appeal under this section lies at the instance of any person who was a party to the proceedings before the Court of Appeal.

(3)On an appeal under this section the [F709Supreme Court] may—

(a)confirm the decision of the Court of Appeal, or

(b)make such order as it believes is appropriate.

Textual Amendments

Commencement Information

I198S. 214 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

[F710Enforcement: money, cryptoassets and personal property]N.I.

Textual Amendments

F710S. 215 cross-heading substituted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 52; S.R. 2024/82, art. 2

215[F711Money] N.I.

(1)This section applies to money which—

(a)is held by a person, and

(b)is held in an account maintained by him with a [F712relevant financial institution].

(2)This section also applies to money which is held by a person and which—

[F713(a)has been seized under a relevant seizure power by a constable or another person lawfully exercising the power, and

(b)is being detained in connection with a criminal investigation or prosecution or with an investigation of a kind mentioned in section 341.]

[F714(2A)But this section applies to money only so far as the money is free property.]

F715(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F716(5)If—

(a)a confiscation order is made against a person holding money to which this section applies, and

(b)a receiver has not been appointed under section 198 in relation to the money,

a magistrates' court may order the [F717appropriate person] to pay the money to the appropriate chief clerk on account of the amount payable under the confiscation order.]

[F718(5A)[F719Where this section applies to money which is held in an account maintained with [F720a relevant financial institution],] a person applying for an order under subsection (5) must give notice of the application to [F721the relevant financial institution] with which the account is held.

(5B)In the case of money held in an account not maintained by the person against whom the confiscation order is made, a magistrates' court—

(a)may make an order under subsection (5) only if the extent of the person's interest in the money has been determined under section 160A, and

(b)must have regard to that determination in deciding what is the appropriate order to make.]

(6)If a [F722relevant financial institution] fails to comply with an order under subsection (5)—

(a)the magistrates’ court may order it to pay an amount not exceeding £5,000, and

(b)for the purposes of the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)) the sum is to be treated as adjudged to be paid by a conviction of the magistrates’ court.

(7)In order to take account of changes in the value of money the [F723Department of Justice in Northern Ireland] may by order substitute another sum for the sum for the time being specified in subsection (6)(a).

[F724(7A)The Department of Justice in Northern Ireland may by order amend this section so that it applies [F725by virtue of subsection (1)] not only to money held in an account maintained with a [F726relevant financial institution] but also to—

(a)money held in an account maintained with a financial institution of a specified kind, or

(b)money that is represented by, or may be obtained from, a financial instrument or product of a specified kind.

(7B)An order under subsection (7A) may amend this section so that it makes provision about realising an instrument or product within subsection (7A)(b) or otherwise obtaining money from it.]

[F727(8)In this section—

  • “appropriate chief clerk” has the same meaning as in section 202(7);

  • “appropriate person” means—

    (a)

    in a case where the money is held in an account maintained with [F728a relevant financial institution, the relevant financial institution];

    (b)

    in any other case, the person on whose authority the money is detained;

  • “bank” means an authorised deposit-taker, other than a building society, that has its head office or a branch in the United Kingdom;

  • “building society” has the same meaning as in the Building Societies Act 1986;

  • [F729“electronic money institution” has the same meaning as in the Electronic Money Regulations 2011 (S.I. 2011/99) (see regulation 2 of those Regulations);]

  • [F729“payment institution” means an authorised payment institution or a small payment institution (each as defined in regulation 2 of the Payment Services Regulations 2017 (S.I. 2017/752));]

  • [F729“relevant financial institution” means a bank, a building society, an electronic money institution or a payment institution;]

  • “relevant seizure power” means a power to seize money conferred by or by virtue of—

    (a)

    a warrant granted under any enactment or rule of law, or

    (b)

    any enactment, or rule of law, under which the authority of a warrant is not required.]

[F730(9)In the definition of “bank” in subsection (8), “authorised deposit-taker” means—

(a)a person who has permission under Part 4A of the Financial Services and Markets Act 2000 to accept deposits;

(b)a person who—

(i)is specified, or is within a class of persons specified, by an order under section 38 of that Act (exemption orders), and

(ii)accepts deposits;

(c)an EEA firm of the kind mentioned in paragraph 5(b) of Schedule 3 to that Act that has permission under paragraph 15 of that Schedule (as a result of qualifying for authorisation under paragraph 12(1) of that Schedule) to accept deposits.

(10)A reference in subsection (9) to a person or firm with permission to accept deposits does not include a person or firm with permission to do so only for the purposes of, or in the course of, an activity other than accepting deposits.]

Textual Amendments

F711S. 215 heading substituted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 47(7); S.R. 2024/82, art. 2

F712Words in s. 215(1)(b) substituted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 47(2); S.R. 2024/82, art. 2

F713S. 215(2)(a)(b) substituted (27.4.2017 for specified purposes, 28.6.2021 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 27(2), 58(3)(6); S.R. 2021/167, reg. 2(a)

F714S. 215(2A) inserted (27.4.2017 for specified purposes, 28.6.2021 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 27(3), 58(3)(6); S.R. 2021/167, reg. 2(a)

F715S. 215(3) omitted (27.4.2017 for specified purposes, 28.6.2021 in so far as not already in force) by virtue of Criminal Finances Act 2017 (c. 22), ss. 27(4), 58(3)(6); S.R. 2021/167, reg. 2(a)

F716S. 215(5) substituted for s. 215(4)(5) (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 36(1), 88(3)(a); S.R. 2015/190, reg. 3(1)(j)

F717Words in s. 215(5) substituted (27.4.2017 for specified purposes, 28.6.2021 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 27(5), 58(3)(6); S.R. 2021/167, reg. 2(a)

F719Words in s. 215(5A) inserted (27.4.2017 for specified purposes, 28.6.2021 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 27(6), 58(3)(6); S.R. 2021/167, reg. 2(a)

F720Words in s. 215(5A) substituted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 47(3)(a); S.R. 2024/82, art. 2

F721Words in s. 215(5A) substituted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 47(3)(b); S.R. 2024/82, art. 2

F722Words in s. 215(6) substituted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 47(4); S.R. 2024/82, art. 2

F725Words in s. 215(7A) inserted (27.4.2017 for specified purposes, 28.6.2021 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 27(7), 58(3)(6); S.R. 2021/167, reg. 2(a)

F726Words in s. 215(7A) substituted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 47(5); S.R. 2024/82, art. 2

F727S. 215(8) substituted (27.4.2017 for specified purposes, 28.6.2021 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 27(8), 58(3)(6); S.R. 2021/167, reg. 2(a)

F728Words in s. 215(8) substituted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 47(6)(a); S.R. 2024/82, art. 2

F729Words in s. 215(8) inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 47(6)(b); S.R. 2024/82, art. 2

F730S. 215(9)(10) inserted (27.4.2017 for specified purposes, 28.6.2021 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 27(9), 58(3)(6) (as amended (N.I.) on exit day by S.I. 2019/742, regs. 1, 109(4)); S.R. 2021/167, reg. 2(a)

Commencement Information

I199S. 215 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

[F731215ZACryptoassetsN.I.

(1)This section applies to cryptoassets which—

(a)are held by a person, and

(b)are held in a crypto wallet administered by a UK-connected cryptoasset service provider,

but only so far as the cryptoassets are free property.

(2)Subsection (3) applies if—

(a)a confiscation order is made against a person holding cryptoassets to which this section applies, and

(b)a receiver has not been appointed under section 198 in relation to the cryptoassets.

(3)A magistrates’ court may order the UK-connected cryptoasset service provider which administers the crypto wallet in which the cryptoassets are held—

(a)to realise the cryptoassets, or a portion of the cryptoassets having a specified value,

(b)to pay the proceeds of that realisation to the appropriate chief clerk on account of, and up to a maximum of, the amount payable under the confiscation order, and

(c)to the extent that the proceeds of the realisation exceed the amount payable under the confiscation order, to pay the excess to an appropriate officer identified in the order.

(4)In subsection (3)—

  • “appropriate chief clerk” has the same meaning as in section 202(7);

  • “appropriate officer” has the same meaning as in section 195A.

(5)A person applying for an order under subsection (3) must give notice of the application to the UK-connected cryptoasset service provider.

(6)Where the crypto wallet in which the cryptoassets are held is administered on behalf of someone other than the person against whom the confiscation order is made, a magistrates’ court—

(a)may make an order under subsection (3) only if the extent of the person’s interest in the money has been determined under section 160A, and

(b)must have regard to that determination in deciding what is the appropriate order to make.

(7)If a UK-connected cryptoasset service provider fails to comply with an order under subsection (3)—

(a)the magistrates’ court may order it to pay an amount not exceeding £5,000, and

(b)for the purposes of the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)) the sum is to be treated as adjudged to be paid by a conviction of the court.

(8)In order to take account of changes in the value of money the Department of Justice in Northern Ireland may by order substitute another sum for the sum for the time being specified in subsection (7)(a).

(9)Where a UK-connected cryptoasset service provider—

(a)is required by an order under subsection (3) to realise a portion of cryptoassets having a specified value, but

(b)on realising cryptoassets under the order, obtains proceeds of an amount which differs from that value,

it does not fail to comply with the order solely because of that difference in value, provided that it took reasonable steps to obtain proceeds equal to the value specified.

Textual Amendments

F731Ss. 215ZA, 215ZB inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 48; S.R. 2024/82, art. 2

215ZBMeaning of “UK-connected cryptoasset service provider”N.I.

(1)“UK-connected cryptoasset service provider” in section 215ZA means a cryptoasset service provider which—

(a)is acting in the course of business carried on by it in the United Kingdom,

(b)has terms and conditions with the persons to whom it provides services which provide for a legal dispute to be litigated in the courts of a part of the United Kingdom,

(c)holds in the United Kingdom any data relating to the persons to whom it provides services, or

(d)meets the condition in subsection (2).

(2)The condition in this subsection is that—

(a)the cryptoasset service provider has its registered office or, if it does not have one, its head office in the United Kingdom, and

(b)the day-to-day management of the provider’s business is the responsibility of that office or another establishment maintained by it in the United Kingdom.

(3)“Cryptoasset service provider” in subsections (1) and (2) includes a cryptoasset exchange provider and a custodian wallet provider; and for this purpose—

  • “cryptoasset exchange provider” means a firm or sole practitioner who by way of business provides one or more of the following services, including where the firm or sole practitioner does so as creator or issuer of any of the cryptoassets involved—

    (a)

    exchanging, or arranging or making arrangements with a view to the exchange of, cryptoassets for money or money for cryptoassets;

    (b)

    exchanging, or arranging or making arrangements with a view to the exchange of, one cryptoasset for another;

    (c)

    operating a machine which utilises automated processes to exchange cryptoassets for money or money for cryptoassets;

  • “custodian wallet provider” means a firm or sole practitioner who by way of business provides services to safeguard, or to safeguard and administer—

    (a)

    cryptoassets on behalf of its customers, or

    (b)

    private cryptographic keys on behalf of its customers in order to hold, store and transfer cryptoassets.

(4)In the definition of “cryptoasset exchange provider” in subsection (3), “cryptoasset” includes a right to, or interest in, a cryptoasset.

(5)The Secretary of State may by regulations amend the definitions in subsection (3) (including by amending subsection (4)).

(6)The Secretary of State must consult the Department of Justice in Northern Ireland before making regulations under subsection (5).]

Textual Amendments

F731Ss. 215ZA, 215ZB inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 48; S.R. 2024/82, art. 2

[F732215ASeized personal propertyN.I.

(1)This section applies to personal property which is held by a person and which—

(a)has been seized by an appropriate officer under a relevant seizure power, or

(b)has been produced to an appropriate officer in compliance with a production order under section 345.

(2)This section applies if the following conditions are satisfied—

(a)a confiscation order is made against the person by whom the property is held;

(b)a receiver has not been appointed under section 198 in relation to the property;

(c)any period allowed under section 161 for payment of the amount ordered to be paid under the confiscation order has ended.

(3)In such a case a magistrates' court may by order authorise an appropriate officer to realise the property.

(4)In this section “appropriate officer” and “relevant seizure power” have the same meaning as in section 190A.

Textual Amendments

[F733215AADestruction of seized cryptoassetsN.I.

(1)This section applies to cryptoassets which are held by a person and which have been seized by an appropriate officer under a relevant seizure power.

(2)A magistrates’ court may by order authorise an appropriate officer to destroy the cryptoassets if—

(a)a confiscation order is made against the person by whom the cryptoassets are held,

(b)a receiver has not been appointed under section 198 in relation to the cryptoassets, and

(c)either—

(i)it is not reasonably practicable to realise the cryptoassets, or

(ii)there are reasonable grounds to believe that the realisation of the cryptoassets would be contrary to the public interest, having regard in particular to how likely it is that the entry of the cryptoassets into general circulation would facilitate criminal conduct by any person.

(3)An order under this section—

(a)must set out the court’s assessment of the market value of the cryptoassets to which it relates;

(b)may authorise the destruction of cryptoassets only to the extent that their market value, as set out in the order, is less than or equal to the amount remaining to be paid under the confiscation order.

(4)Before making an order under this section, the court must give persons who hold interests in the cryptoassets a reasonable opportunity to make representations to it.

(5)If cryptoassets held by a person are destroyed following an order under this section, the person is to be treated as having paid, towards satisfaction of the confiscation order, an amount equal to the market value, as set out in the order, of the cryptoassets which have been destroyed.

(6)In this section “appropriate officer” and “relevant seizure power” have the same meaning as in section 190A.]

Textual Amendments

F733S. 215AA inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 49; S.R. 2024/82, art. 2

215BCosts of storage and realisationN.I.

(1)This section applies if a magistrates' court makes an order under section 215A.

(2)The court may determine an amount which may be recovered by the appropriate officer in respect of reasonable costs incurred in—

(a)storing or insuring the property since it was seized or produced as mentioned in subsection (1) of that section;

(b)realising the property.

(3)If the court makes a determination under this section the appropriate officer is entitled to payment of the amount under section 203(4).

(4)A determination under this section may be made on the same occasion as the section 215A order or on any later occasion; and more than one determination may be made in relation to any case.

(5)In this section “appropriate officer” has the same meaning as in section 190A.

Textual Amendments

215CSections [F734215ZA to] 215B: appealsN.I.

(1)If a magistrates' court decides not to make an order under section [F735215ZA(3), 215A(3) or 215AA(2)], an appropriate officer may appeal to a county court.

(2)If a magistrates' court makes an order under section [F736215ZA(3), 215A(3) or 215AA(2)], a person affected by the order may appeal to a county court.

(3)But the person mentioned in section [F737215ZA(2)(a), 215A(2)(a) or 215AA(2)(a) (as applicable)] may not appeal.

(4)An appropriate officer may appeal to a county court against—

(a)a determination made by a magistrates' court under section 215B;

(b)a decision by a magistrates' court not to make a determination under that section.

(5)In this section “appropriate officer” has the same meaning as in section 190A.

Textual Amendments

F734Words in s. 215C heading substituted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 50(5); S.R. 2024/82, art. 2

F735Words in s. 215C(1) substituted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 50(2); S.R. 2024/82, art. 2

F736Words in s. 215C(2) substituted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 50(3); S.R. 2024/82, art. 2

F737Words in s. 215C(3) substituted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 50(4); S.R. 2024/82, art. 2

215DProceeds of realisationN.I.

(1)This section applies to sums which—

(a)are in the hands of an appropriate officer, and

(b)are the proceeds of the realisation of property under section [F738215ZA or] 215A.

(2)The sums must be applied as follows—

(a)first, they must be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under this subsection by virtue of section 432;

(b)second, they must be applied in making any payments directed by the magistrates' court or Crown Court;

(c)third, they must be paid to the appropriate chief clerk on account of the amount payable under the confiscation order.

(3)If the amount payable under the confiscation order has been fully paid and any sums remain in the appropriate officer's hands, the appropriate officer must distribute them—

(a)among such persons who held (or hold) interests in the property represented by the proceeds as the magistrates' court or Crown Court directs, and

(b)in such proportions as it directs.

(4)Before making a direction under subsection (3) the court must give persons who held (or hold) interests in the property a reasonable opportunity to make representations to it.

(5)If the magistrates' court has made a direction under subsection (2)(b) or (3) in respect of the proceeds of realisation of any property, the Crown Court may not make a direction under either of those provisions in respect of the proceeds of realisation of that property; and vice versa.

(6)In this section—

  • “appropriate officer” has the same meaning as in section 190A, and

  • “appropriate chief clerk” has the same meaning as in section 202(7).]

Textual Amendments

F738Words in s. 215D(1)(b) inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 51; S.R. 2024/82, art. 2

Financial investigatorsN.I.

216 Applications and appealsN.I.

(1)This section applies to—

(a)an application under section 190, 191, 196, 197 or 211;

(b)an appeal under section 192, 193, 213 or 214.

(2)An accredited financial investigator must not make such an application or bring such an appeal unless he falls within subsection (3).

(3)An accredited financial investigator falls within this subsection if he is one of the following or is authorised for the purposes of this section by one of the following—

(a)a police officer who is not below the rank of superintendent,

(b)a customs officer who is not below such grade as is designated by the Commissioners of Customs and Excise as equivalent to that rank,

(c)an accredited financial investigator who falls within a description specified in an order made for the purposes of this paragraph by the Secretary of State under section 453.

(4)If such an application is made or appeal brought by an accredited financial investigator any subsequent step in the application or appeal or any further application or appeal relating to the same matter may be taken, made or brought by a different accredited financial investigator who falls within subsection (3).

(5)If—

(a)an application for a restraint order is made by an accredited financial investigator, and

(b)a court is required under section 206(5) to give the applicant for the order an opportunity to be heard,

the court may give the opportunity to a different accredited financial investigator who falls within subsection (3).

Commencement Information

I200S. 216 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

Exercise of powersN.I.

217 Powers of court and receiver [F739etc] N.I.

(1)This section applies to—

(a)the powers conferred on a court by sections 189 to [F740207] and sections 210 to [F741215D];

(b)the powers of a receiver appointed under section 196 [F742or 198].

[F743(c)the powers conferred on appropriate officers by sections 195C to 195L;

(d)the powers conferred on senior officers by section 195G.]

(2)The powers—

(a)must be exercised with a view to the value for the time being of realisable property being made available (by the property’s realisation) for satisfying any confiscation order that has been or may be made against the defendant;

(b)must be exercised, in a case where a confiscation order has not been made, with a view to securing that there is no diminution in the value of realisable property;

(c)must be exercised without taking account of any obligation of the defendant or a recipient of a tainted gift if the obligation conflicts with the object of satisfying any confiscation order that has been or may be made against the defendant;

(d)may be exercised in respect of a debt owed by the Crown.

[F744(2A)Subsection (2)(a) does not apply to—

(a)the power conferred on a court by paragraph (e) of section 199(2) (which enables the court to give a receiver the power to destroy cryptoassets),

(b)a power conferred on a receiver by virtue of that paragraph, or

(c)the power conferred on a magistrates’ court by section 215AA (power to order destruction of cryptoassets).]

(3)Subsection (2) has effect subject to the following rules—

(a)the powers must be exercised with a view to allowing a person other than the defendant or a recipient of a tainted gift to retain or recover the value of any interest held by him;

(b)in the case of realisable property held by a recipient of a tainted gift, the powers must be exercised with a view to realising no more than the value for the time being of the gift;

(c)in a case where a confiscation order has not been made against the defendant, property must not be realised if the court so orders under subsection (4).

(4)If on an application by the defendant, or by the recipient of a tainted gift, the court decides that property cannot be replaced it may order that it must not be sold.

(5)An order under subsection (4) may be revoked or varied.

Textual Amendments

F739Word in s. 217 heading inserted (1.3.2016) by Policing and Crime Act 2009 (c. 26), ss. 57(4)(b), 116(1); S.I. 2016/147, art. 3(b) (with art. 4)

F742Words in s. 217(1)(b) substituted (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 67(b); S.I. 2008/755, art. 2(1)(a) (with arts. 3-14)

F744S. 217(2A) inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 53; S.R. 2024/82, art. 2

Commencement Information

I201S. 217 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

CommittalN.I.

218 Committal by magistrates’ courtN.I.

(1)This section applies if—

(a)a defendant is convicted of an offence by a magistrates’ court, and

(b)the prosecutor asks the court to commit the defendant to the Crown Court with a view to a confiscation order being considered under section 156.

(2)In such a case the magistrates’ court—

(a)must commit the defendant to the Crown Court in respect of the offence, and

(b)may commit him to the Crown Court in respect of any other offence falling within subsection (3).

(3)An offence falls within this subsection if—

(a)the defendant has been convicted of it by the magistrates’ court or any other court, and

(b)the magistrates’ court has power to deal with him in respect of it.

(4)If a committal is made under this section in respect of an offence or offences—

(a)section 156 applies accordingly, and

(b)the committal operates as a committal of the defendant to be dealt with by the Crown Court in accordance with section 219.

(5)A committal under this section may be in custody or on bail.

Commencement Information

I202S. 218 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

219 Sentencing by Crown CourtN.I.

(1)If a defendant is committed to the Crown Court under section 218 in respect of an offence or offences, this section applies (whether or not the court proceeds under section 156).

(2)The Crown Court—

(a)must inquire into the circumstances of the case, and

(b)may deal with the defendant in any way in which the magistrates’ court could deal with him if it had just convicted him of the offence.

Commencement Information

I203S. 219 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

CompensationN.I.

220 Serious defaultN.I.

(1)If the following three conditions are satisfied the Crown Court may order the payment of such compensation as it believes is just.

(2)The first condition is satisfied if a criminal investigation has been started with regard to an offence and proceedings are not started for the offence.

(3)The first condition is also satisfied if proceedings for an offence are started against a person and—

(a)they do not result in his conviction for the offence, or

(b)he is convicted of the offence but the conviction is quashed or he is pardoned in respect of it.

(4)If subsection (2) applies the second condition is that—

(a)in the criminal investigation there has been a serious default by a person mentioned in subsection (9), and

(b)the investigation would not have continued if the default had not occurred.

(5)If subsection (3) applies the second condition is that—

(a)in any criminal investigation with regard to the offence or in its prosecution there has been a serious default by a person who is mentioned in subsection (9), and

(b)the proceedings would not have been started or continued if the default had not occurred.

(6)The third condition is that an application is made under this section by a person who held realisable property and has suffered loss in consequence of anything done in relation to it by or in pursuance of an order under this Part.

(7)The offence referred to in subsection (2) may be one of a number of offences with regard to which the investigation is started.

(8)The offence referred to in subsection (3) may be one of a number of offences for which the proceedings are started.

(9)Compensation under this section is payable to the applicant and—

(a)if the person in default was or was acting as a police officer within the meaning of the Police (Northern Ireland) Act 2000 (c. 32), the compensation is payable by the Chief Constable;

(b)if the person in default was [F745a member of the Public Prosecution Service for Northern Ireland] or was acting on his behalf, the compensation is payable by the Director of Public Prosecutions for Northern Ireland;

[F746(ba)if the person in default was a [F747National Crime Agency officer], the compensation is payable by [F748the National Crime Agency];]

(c)if the person in default was a member of the Serious Fraud Office, the compensation is payable by the Director of that Office;

(d)if the person in default was a customs officer, the compensation is payable by the Commissioners of Customs and Excise;

(e)if the person in default was an officer of the Commissioners of Inland Revenue, the compensation is payable by those Commissioners.

[F749(f)if the person in default was an accredited financial investigator and none of paragraphs (a) to (e) apply, the compensation is payable in accordance with paragraph (b), (d) or (e) of section 302(7A) (as the case may require).]

Textual Amendments

F745Words in s. 220(9)(b) substituted (25.1.2010) by Policing and Crime Act 2009 (c. 26), ss. 61(5), 116(1); S.I. 2009/3096, art. 3(g)

F747Words in s. 220(9)(ba) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 120(a); S.I. 2013/1682, art. 3(v)

F748Words in s. 220(9)(ba) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 120(b); S.I. 2013/1682, art. 3(v)

Commencement Information

I204S. 220 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

221 Order varied or dischargedN.I.

(1)This section applies if—

(a)the court varies a confiscation order under section 179 or discharges one under section 180, and

(b)an application is made to the Crown Court by a person who held realisable property and has suffered loss as a result of the making of the order.

(2)The court may order the payment of such compensation as it believes is just.

(3)Compensation under this section is payable—

(a)to the applicant;

(b)by the Lord Chancellor.

Modifications etc. (not altering text)

Commencement Information

I205S. 221 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

Enforcement abroadN.I.

222 Enforcement abroadN.I.

(1)This section applies if—

(a)any of the conditions in section 189 is satisfied,

(b)the prosecutor F750... believes that realisable property is situated in a country or territory outside the United Kingdom (the receiving country), and

(c)the prosecutor F751... sends a request for assistance to the Secretary of State with a view to it being forwarded under this section.

(2)In a case where no confiscation order has been made, a request for assistance is a request to the government of the receiving country to secure that any person is prohibited from dealing with realisable property.

(3)In a case where a confiscation order has been made and has not been satisfied, discharged or quashed, a request for assistance is a request to the government of the receiving country to secure that—

(a)any person is prohibited from dealing with realisable property;

(b)realisable property is realised and the proceeds are applied in accordance with the law of the receiving country.

(4)No request for assistance may be made for the purposes of this section in a case where a confiscation order has been made and has been satisfied, discharged or quashed.

(5)If the Secretary of State believes it is appropriate to do so he may forward the request for assistance to the government of the receiving country.

(6)If property is realised in pursuance of a request under subsection (3) the amount ordered to be paid under the confiscation order must be taken to be reduced by an amount equal to the proceeds of realisation.

(7)A certificate purporting to be issued by or on behalf of the requested government is admissible as evidence of the facts it states if it states—

(a)that property has been realised in pursuance of a request under subsection (3),

(b)the date of realisation, and

(c)the proceeds of realisation.

(8)If the proceeds of realisation made in pursuance of a request under subsection (3) are expressed in a currency other than sterling, they must be taken to be the sterling equivalent calculated in accordance with the rate of exchange prevailing at the end of the day of realisation.

Textual Amendments

Commencement Information

I206S. 222 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch. (with arts. 6, 10-13)

InterpretationN.I.

223 Criminal lifestyleN.I.

(1)A defendant has a criminal lifestyle if (and only if) the following condition is satisfied.

(2)The condition is that the offence (or any of the offences) concerned satisfies any of these tests—

(a)it is specified in Schedule 5;

(b)it constitutes conduct forming part of a course of criminal activity;

(c)it is an offence committed over a period of at least six months and the defendant has benefited from the conduct which constitutes the offence.

(3)Conduct forms part of a course of criminal activity if the defendant has benefited from the conduct and—

(a)in the proceedings in which he was convicted he was convicted of three or more other offences, each of three or more of them constituting conduct from which he has benefited, or

(b)in the period of six years ending with the day when those proceedings were started (or, if there is more than one such day, the earliest day) he was convicted on at least two separate occasions of an offence constituting conduct from which he has benefited.

(4)But an offence does not satisfy the test in subsection (2)(b) or (c) unless the defendant obtains relevant benefit of not less than £5000.

(5)Relevant benefit for the purposes of subsection (2)(b) is—

(a)benefit from conduct which constitutes the offence;

(b)benefit from any other conduct which forms part of the course of criminal activity and which constitutes an offence of which the defendant has been convicted;

(c)benefit from conduct which constitutes an offence which has been or will be taken into consideration by the court in sentencing the defendant for an offence mentioned in paragraph (a) or (b).

(6)Relevant benefit for the purposes of subsection (2)(c) is—

(a)benefit from conduct which constitutes the offence;

(b)benefit from conduct which constitutes an offence which has been or will be taken into consideration by the court in sentencing the defendant for the offence mentioned in paragraph (a).

(7)The [F752Department of Justice in Northern Ireland] may by order amend Schedule 5.

(8)The [F753Department of Justice in Northern Ireland] may by order vary the amount for the time being specified in subsection (4).

Textual Amendments

Commencement Information

I207S. 223 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch. (with art. 8) (as amended (6.3.2003) by S.I. 2003/531, art. 3)

224 Conduct and benefitN.I.

(1)Criminal conduct is conduct which—

(a)constitutes an offence in Northern Ireland, or

(b)would constitute such an offence if it occurred in Northern Ireland.

(2)General criminal conduct of the defendant is all his criminal conduct, and it is immaterial—

(a)whether conduct occurred before or after the passing of this Act;

(b)whether property constituting a benefit from conduct was obtained before or after the passing of this Act.

(3)Particular criminal conduct of the defendant is all his criminal conduct which falls within the following paragraphs—

(a)conduct which constitutes the offence or offences concerned;

(b)conduct which constitutes offences of which he was convicted in the same proceedings as those in which he was convicted of the offence or offences concerned;

(c)conduct which constitutes offences which the court will be taking into consideration in deciding his sentence for the offence or offences concerned.

(4)A person benefits from conduct if he obtains property as a result of or in connection with the conduct.

(5)If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage.

(6)References to property or a pecuniary advantage obtained in connection with conduct include references to property or a pecuniary advantage obtained both in that connection and some other.

(7)If a person benefits from conduct his benefit is the value of the property obtained.

Commencement Information

I208S. 224 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch. (with art. 9)

225 Tainted giftsN.I.

(1)Subsections (2) and (3) apply if—

(a)no court has made a decision as to whether the defendant has a criminal lifestyle, or

(b)a court has decided that the defendant has a criminal lifestyle.

(2)A gift is tainted if it was made by the defendant at any time after the relevant day.

(3)A gift is also tainted if it was made by the defendant at any time and was of property—

(a)which was obtained by the defendant as a result of or in connection with his general criminal conduct, or

(b)which (in whole or part and whether directly or indirectly) represented in the defendant’s hands property obtained by him as a result of or in connection with his general criminal conduct.

(4)Subsection (5) applies if a court has decided that the defendant does not have a criminal lifestyle.

(5)A gift is tainted if it was made by the defendant at any time after—

(a)the date on which the offence concerned was committed, or

(b)if his particular criminal conduct consists of two or more offences and they were committed on different dates, the date of the earliest.

(6)For the purposes of subsection (5) an offence which is a continuing offence is committed on the first occasion when it is committed.

(7)For the purposes of subsection (5) the defendant’s particular criminal conduct includes any conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

(8)A gift may be a tainted gift whether it was made before or after the passing of this Act.

(9)The relevant day is the first day of the period of six years ending with—

(a)the day when proceedings for the offence concerned were started against the defendant, or

(b)if there are two or more offences and proceedings for them were started on different days, the earliest of those days.

Commencement Information

I209S. 225 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

226 Gifts and their recipientsN.I.

(1)If the defendant transfers property to another person for a consideration whose value is significantly less than the value of the property at the time of the transfer, he is to be treated as making a gift.

(2)If subsection (1) applies the property given is to be treated as such share in the property transferred as is represented by the fraction—

(a)whose numerator is the difference between the two values mentioned in subsection (1), and

(b)whose denominator is the value of the property at the time of the transfer.

(3)References to a recipient of a tainted gift are to a person to whom the defendant has made the gift.

Commencement Information

I210S. 226 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

227 Value: the basic ruleN.I.

(1)This section applies for the purpose of deciding the value at any time of property then held by a person.

(2)Its value is the market value of the property at that time.

(3)But if at that time another person holds an interest in the property its value, in relation to the person mentioned in subsection (1), is the market value of his interest at that time, ignoring any charging order under a provision listed in subsection (4).

(4)The provisions are—

(a)section 9 of the Drug Trafficking Offences Act 1986 (c. 32);

(b)section 78 of the Criminal Justice Act 1988 (c. 33);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));

(d)section 27 of the Drug Trafficking Act 1994 (c. 37);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

(5)This section has effect subject to sections 228 and 229.

Commencement Information

I211S. 227 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

228 Value of property obtained from conductN.I.

(1)This section applies for the purpose of deciding the value of property obtained by a person as a result of or in connection with his criminal conduct; and the material time is the time the court makes its decision.

(2)The value of the property at the material time is the greater of the following—

(a)the value of the property (at the time the person obtained it) adjusted to take account of later changes in the value of money;

(b)the value (at the material time) of the property found under subsection (3).

(3)The property found under this subsection is as follows—

(a)if the person holds the property obtained, the property found under this subsection is that property;

(b)if he holds no part of the property obtained, the property found under this subsection is any property which directly or indirectly represents it in his hands;

(c)if he holds part of the property obtained, the property found under this subsection is that part and any property which directly or indirectly represents the other part in his hands.

(4)The references in subsection (2)(a) and (b) to the value are to the value found in accordance with section 227.

Commencement Information

I212S. 228 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

229 Value of tainted giftsN.I.

(1)The value at any time (the material time) of a tainted gift is the greater of the following—

(a)the value (at the time of the gift) of the property given, adjusted to take account of later changes in the value of money;

(b)the value (at the material time) of the property found under subsection (2).

(2)The property found under this subsection is as follows—

(a)if the recipient holds the property given, the property found under this subsection is that property;

(b)if the recipient holds no part of the property given, the property found under this subsection is any property which directly or indirectly represents it in his hands;

(c)if the recipient holds part of the property given, the property found under this subsection is that part and any property which directly or indirectly represents the other part in his hands.

(3)The references in subsection (1)(a) and (b) to the value are to the value found in accordance with section 227.

Commencement Information

I213S. 229 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

230 Free propertyN.I.

[F754(1)Property is free unless it falls within subsection (2) or (3).]

[F755(2)][F756Property falls within this subsection if] an order is in force in respect of it under any of these provisions—

(a)section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders);

(b)Article 11 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (deprivation orders);

(c)Part 2 of the Proceeds of Crime (Scotland) Act 1995 (c. 43) (forfeiture of property used in crime);

(d)section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) [F757or Chapter 4 of Part 7 of the Sentencing Code] (deprivation orders);

(e)section 23[F758, 23A] or 111 of the Terrorism Act 2000 (c. 11) (forfeiture orders);

[F759(ea)paragraph 3(2), 6(2), 10D(1), 10G(2), 10J(3), 10S(2) [F760, 10Z2(3), 10Z7AG(1), 10Z7BB(2), 10Z7CA(3), 10Z7CE(3) or 10Z7DG(3)] of Schedule 1 to the Anti-terrorism, Crime and Security Act 2001;]

(f)section [F761245A,] 246, [F762255A, 256,] 266, 295(2) [F763, 298(2), 303L(1), 303O(3), 303R(3), 303Z3 [F764, 303Z14(4), 303Z32(1), 303Z37(2), 303Z41(4), 303Z45(3) or 303Z60(4)]] of this Act.

[F765(3)Property falls within this subsection if—

(a)it has been forfeited in pursuance of a forfeiture notice under section 297A [F766or an account forfeiture notice under section 303Z9];

(b)it is detained under section 297C [F767, 297D] [F768, 298(4) or 303O(9)].]

[F769(ba)it is detained under section 303Z30, 303Z31 or 303Z32 in a case where section 303Z42(2) applies;

(bb)it is detained under section 303Z57 or 303Z58 in a case where section 303Z60(6) applies;]

[F770(c)it is the forfeitable property in relation to an order under section 303Q(1) [F771or 303Z44(1)].]

[F772(d)it has been forfeited in pursuance of a cash forfeiture notice under paragraph 5A of Schedule 1 to the Anti-terrorism, Crime and Security Act 2001 or an account forfeiture notice under paragraph 10W of that Schedule;

(e)it is detained under paragraph 5B, 5C, 9A or 10G(7) of that Schedule;

[F773(ea)it is detained under paragraph 10Z7AE, 10Z7AF or 10Z7AG of that Schedule in a case where paragraph 10Z7CB(2) of that Schedule applies;

(eb)it is detained under paragraph 10Z7DD or 10Z7DE of that Schedule in a case where paragraph 10Z7DG(5) of that Schedule applies;]

(f)it is the forfeitable property in relation to an order under paragraph 10I(1) [F774or 10Z7CD(1)] of that Schedule.]

Textual Amendments

F757Words in s. 230(2)(d) inserted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 199 (with Sch. 27); S.I. 2020/1236, reg. 2

F759S. 230(2)(ea) inserted (27.4.2017 for specified purposes, 28.6.2021 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 34(4)(a), 58(3)(6); S.R. 2021/167, reg. 2(d)

F760Words in s. 230(2)(ea) substituted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 5(3)(a)(i); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

F763Words in s. 230(2)(f) substituted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 27(2); S.I. 2018/78, reg. 5(3)(d)(i)(ii)

F764Words in s. 230(2)(f) substituted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 5(3)(a)(ii); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

F766Words in s. 230(3)(a) inserted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 27(3)(a); S.I. 2018/78, reg. 5(3)(d)(i)(ii)

F767Words in s. 230(3)(b) substituted (27.4.2017 for specified purposes, 28.6.2021 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 34(4)(b), 58(3)(6); S.R. 2021/167, reg. 2(d)

F768Words in s. 230(3)(b) substituted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 27(3)(b); S.I. 2018/78, reg. 5(3)(d)(i)(ii)

F769S. 230(3)(ba)(bb) inserted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 5(3)(b)(i); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

F770S. 230(3)(c) inserted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 27(3)(c); S.I. 2018/78, reg. 5(3)(d)(i)(ii)

F771Words in s. 230(3)(c) inserted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 5(3)(b)(ii); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

F772S. 230(3)(d)-(f) inserted (27.4.2017 for specified purposes, 28.6.2021 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 34(4)(c), 58(3)(6); S.R. 2021/167, reg. 2(d)

F773S. 230(3)(ea)(eb) inserted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 5(3)(b)(iii); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

F774Words in s. 230(3)(f) inserted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 5(3)(b)(iv); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

Commencement Information

I214S. 230 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

231 Realisable propertyN.I.

Realisable property is—

(a)any free property held by the defendant;

(b)any free property held by the recipient of a tainted gift.

Commencement Information

I215S. 231 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

232 Property: general provisionsN.I.

(1)Property is all property wherever situated and includes—

(a)money;

(b)all forms of real or personal property;

(c)things in action and other intangible or incorporeal property.

(2)The following rules apply in relation to property—

(a)property is held by a person if he holds an interest in it;

(b)property is obtained by a person if he obtains an interest in it;

(c)property is transferred by one person to another if the first one transfers or grants an interest in it to the second;

(d)references to property held by a person include references to property vested in his trustee in bankruptcy [F775or liquidator or in the trustee or interim trustee in the sequestration, under the Bankruptcy (Scotland) Act 2016), of his estate;]

(e)references to an interest held by a person beneficially in property include references to an interest which would be held by him beneficially if the property were not so vested;

(f)references to an interest, in relation to land in Northern Ireland or England and Wales, are to any legal estate or equitable interest or power;

(g)references to an interest, in relation to land in Scotland, are to any estate, interest, servitude or other heritable right in or over land, including a heritable security;

(h)references to an interest, in relation to property other than land, include references to a right (including a right to possession).

Textual Amendments

Modifications etc. (not altering text)

Commencement Information

I216S. 232 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

[F776232ACryptoassets etcN.I.

(1)“Cryptoasset” means a cryptographically secured digital representation of value or contractual rights that uses a form of distributed ledger technology and can be transferred, stored or traded electronically.

(2)“Crypto wallet” means—

(a)software,

(b)hardware,

(c)a physical item, or

(d)any combination of the things mentioned in paragraphs (a) to (c),

which is used to store the cryptographic private key that allows cryptoassets to be accessed.

(3)“Cryptoasset-related item” has the meaning given in section 195C(5B).

(4)The circumstances in which a cryptoasset is taken to be “destroyed” include circumstances where it is—

(a)disposed of,

(b)transferred, or

(c)otherwise dealt with,

in such a way as to ensure, or to make it virtually certain, that it will not be the subject of any further transactions or be dealt with again in any other way.

(5)The Secretary of State may by regulations amend the definitions of “cryptoasset” and “crypto wallet” in this section.

(6)The Secretary of State must consult the Department of Justice in Northern Ireland before making regulations under subsection (5).]

Textual Amendments

F776S. 232A inserted (26.10.2023 for specified purposes, 26.4.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(2)(b)(5)(a), Sch. 8 para. 54; S.R. 2024/82, art. 2

233 ProceedingsN.I.

(1)Proceedings for an offence are started—

(a)when a justice of the peace issues a summons or warrant under Article 20 of the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/ 1675 (N.I. 26)) in respect of the offence;

(b)when a person is charged with the offence after being taken into custody without a warrant;

(c)when an indictment is preferred under section 2(2)(c), (e) or (f) of the Grand Jury (Abolition) Act (Northern Ireland) 1969 (c. 15 (N.I.)).

(2)If more than one time is found under subsection (1) in relation to proceedings they are started at the earliest of them.

(3)If the defendant is acquitted on all counts in proceedings for an offence, the proceedings are concluded when he is acquitted.

(4)If the defendant is convicted in proceedings for an offence and the conviction is quashed or the defendant is pardoned before a confiscation order is made, the proceedings are concluded when the conviction is quashed or the defendant is pardoned.

(5)If a confiscation order is made against the defendant in proceedings for an offence (whether the order is made by the Crown Court or the Court of Appeal) the proceedings are concluded—

(a)when the order is satisfied or discharged, or

(b)when the order is quashed and there is no further possibility of an appeal against the decision to quash the order.

(6)If the defendant is convicted in proceedings for an offence but the Crown Court decides not to make a confiscation order against him, the following rules apply—

(a)if an application for leave to appeal under section 181(2) is refused, the proceedings are concluded when the decision to refuse is made;

(b)if the time for applying for leave to appeal under section 181(2) expires without an application being made, the proceedings are concluded when the time expires;

(c)if on an appeal under section 181(2) the Court of Appeal confirms the Crown Court’s decision and an application for leave to appeal under section 183 is refused, the proceedings are concluded when the decision to refuse is made;

(d)if on appeal under section 181(2) the Court of Appeal confirms the Crown Court’s decision, and the time for applying for leave to appeal under section 183 expires without an application being made, the proceedings are concluded when the time expires;

(e)if on appeal under section 181(2) the Court of Appeal confirms the Crown Court’s decision, and on appeal under section 183 the House of Lords confirms the Court of Appeal’s decision, the proceedings are concluded when the [F777Supreme Court] confirms the decision;

(f)if on appeal under section 181(2) the Court of Appeal directs the Crown Court to reconsider the case, and on reconsideration the Crown Court decides not to make a confiscation order against the defendant, the proceedings are concluded when the Crown Court makes that decision;

(g)if on appeal under section 183 the [F777Supreme Court] directs the Crown Court to reconsider the case, and on reconsideration the Crown Court decides not to make a confiscation order against the defendant, the proceedings are concluded when the Crown Court makes that decision.

[F778(7)Any power to extend the time for giving notice of application for leave to appeal, or for applying for leave to appeal, must be ignored for the purposes of subsection (6).]

(8)In applying subsection (6) the fact that a court may decide on a later occasion to make a confiscation order against the defendant must be ignored.

Textual Amendments

Commencement Information

I217S. 233 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

234 ApplicationsN.I.

(1)An application under section 169, 170, 177 or 178 is concluded—

(a)in a case where the court decides not to make a confiscation order against the defendant, when it makes the decision;

(b)in a case where a confiscation order is made against him as a result of the application, when the order is satisfied or discharged, or when the order is quashed and there is no further possibility of an appeal against the decision to quash the order;

(c)in a case where the application is withdrawn, when the person who made the application notifies the withdrawal to the court to which the application was made.

(2)An application under section 171 or 172 is concluded—

(a)in a case where the court decides not to vary the confiscation order concerned, when it makes the decision;

(b)in a case where the court varies the confiscation order as a result of the application, when the order is satisfied or discharged, or when the order is quashed and there is no further possibility of an appeal against the decision to quash the order;

(c)in a case where the application is withdrawn, when the person who made the application notifies the withdrawal to the court to which the application was made.

Commencement Information

I218S. 234 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

235 Confiscation ordersN.I.

(1)A confiscation order is satisfied when no amount is due under it.

[F779(1A)The “amount payable” under a confiscation order, where part of that amount has been paid, means the amount that remains to be paid.]

(2)A confiscation order is subject to appeal until there is no further possibility of an appeal on which the order could be varied or quashedF780....

Textual Amendments

Commencement Information

I219S. 235 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

[F781235ANo further possibility of appealN.I.

(1)The following rule applies for the purposes of construing any provision of this Part which refers to there being no further possibility of—

(a)an appeal against a decision of a court, or

(b)an appeal on which an order of a court could be varied or quashed.

(2)Any power to extend the time for giving notice of application for leave to appeal, or for applying for leave to appeal, must be ignored.]

Textual Amendments

236 Other interpretative provisionsN.I.

(1)A reference to the offence (or offences) concerned must be construed in accordance with section 156(9).

(2)A criminal investigation is an investigation which police officers or other persons have a duty to conduct with a view to it being ascertained whether a person should be charged with an offence.

(3)A defendant is a person against whom proceedings for an offence have been started (whether or not he has been convicted).

(4)A reference to sentencing the defendant for an offence includes a reference to dealing with him otherwise in respect of the offence.

(5)The following paragraphs apply to references to orders—

(a)a confiscation order is an order under section 156;

(b)a restraint order is an order under section 190.

(6)Sections 223 to 235 and this section apply for the purposes of this Part.

Commencement Information

I220S. 236 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

GeneralN.I.

237 Procedure on appeal to the Court of AppealN.I.

(1)An appeal to the Court of Appeal under this Part lies only with the leave of that Court.

(2)In relation to appeals to the Court of Appeal under this Part, the [F782Department of Justice in Northern Ireland] may make an order containing provision corresponding to any provision in the Criminal Appeal (Northern Ireland) Act 1980 (c. 47) (subject to any specified modifications).

Textual Amendments

Commencement Information

I221S. 237 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

238 Procedure on appeal to the N.I.

F783[(1)]In relation to appeals to the [F784Supreme Court] under this Part, the Secretary of State may make an order containing provision corresponding to any provision in the Criminal Appeal (Northern Ireland) Act 1980 (subject to any specified modifications).

[F785(2)The power under subsection (1) is exercisable by the Department of Justice in Northern Ireland (and not the Secretary of State) so far as it may be used to make provision which could be made by an Act of the Northern Ireland Assembly without the consent of the Secretary of State (see sections 6 to 8 of the Northern Ireland Act 1998).]

Textual Amendments

Commencement Information

I222S. 238 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

239 Crown Court RulesN.I.

In relation to—

(a)proceedings under this Part, or

(b)receivers appointed under this Part,

Crown Court Rules may make provision corresponding to provision in rules of court (within the meaning of section 120(1) of the Judicature (Northern Ireland) Act 1978 (c. 23)).

Commencement Information

I223S. 239 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.

Part 5U.K.Civil recovery of the proceeds etc. of unlawful conduct

Chapter 1U.K.Introductory

240 General purpose of this PartU.K.

(1)This Part has effect for the purposes of—

(a)enabling the enforcement authority to recover, in civil proceedings before the High Court or Court of Session, property which is, or represents, property obtained through unlawful conduct,

(b)enabling [F786property] which is, or represents, property obtained through unlawful conduct, or which is intended to be used in unlawful conduct, to be forfeited in civil proceedings before a magistrates’ court or (in Scotland) the sheriff [F787and, in certain circumstances, to be forfeited by the giving of a notice].

(2)The powers conferred by this Part are exercisable in relation to any property (including cash) whether or not any proceedings have been brought for an offence in connection with the property.

Textual Amendments

F786Word in s. 240(1)(b) substituted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 28(a); S.I. 2018/78, reg. 5(1)(e); S.I. 2021/724, reg. 4(g)

F787Words in s. 240(1)(b) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 28(b); S.I. 2018/78, reg. 5(1)(e); S.I. 2021/724, reg. 4(g)

241“Unlawful conduct”U.K.

(1)Conduct occurring in any part of the United Kingdom is unlawful conduct if it is unlawful under the criminal law of that part.

(2)Conduct which—

(a)occurs in a country [F788or territory ] outside the United Kingdom and is unlawful under the criminal law [F789applying in that country or territory], and

(b)if it occurred in a part of the United Kingdom, would be unlawful under the criminal law of that part,

is also unlawful conduct.

[F790(2A)Conduct which—

(a)occurs in a country or territory outside the United Kingdom,

(b)constitutes, or is connected with, the commission of a gross human rights abuse or violation (see section 241A), and

(c)if it occurred in a part of the United Kingdom, would be an offence triable under the criminal law of that part on indictment only or either on indictment or summarily,

is also unlawful conduct.]

(3)The court or sheriff must decide on a balance of probabilities whether it is proved—

(a)that any matters alleged to constitute unlawful conduct have occurred, or

(b)that any person intended to use any [F791cash] [F791property] in unlawful conduct.

Textual Amendments

F790S. 241(2A) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 13(2), 58(1)(6) (with s. 13(4)); S.I. 2018/78, reg. 3(c); S.I. 2021/724, reg. 2(1)(d)

F791Word in s. 241(3)(b) substituted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 29; S.I. 2018/78, reg. 5(1)(e); S.I. 2021/724, reg. 4(g)

[F792241A“Gross human rights abuse or violation”U.K.

(1)Conduct constitutes the commission of a gross human rights abuse or violation if each of the following three conditions is met.

(2)The first condition is that—

(a)the conduct constitutes the torture of a person who has sought—

(i)to expose illegal activity carried out by a public official or a person acting in an official capacity, or

(ii)to obtain, exercise, defend or promote human rights and fundamental freedoms, or

(b)the conduct otherwise involves the cruel, inhuman or degrading treatment or punishment of such a person.

(3)The second condition is that the conduct is carried out in consequence of that person having sought to do anything falling within subsection (2)(a)(i) or (ii).

(4)The third condition is that the conduct is carried out—

(a)by a public official, or a person acting in an official capacity, in the performance or purported performance of his or her official duties, or

(b)by a person not falling within paragraph (a) at the instigation or with the consent or acquiescence—

(i)of a public official, or

(ii)of a person acting in an official capacity,

who in instigating the conduct, or in consenting to or acquiescing in it, is acting in the performance or purported performance of his or her official duties.

(5)Conduct is connected with the commission of a gross human rights abuse or violation if it is conduct by a person that involves—

(a)acting as an agent for another in connection with activities relating to conduct constituting the commission of a gross human rights abuse or violation,

(b)directing, or sponsoring, such activities,

(c)profiting from such activities, or

(d)materially assisting such activities.

(6)Conduct that involves the intentional infliction of severe pain or suffering on another person is conduct that constitutes torture for the purposes of subsection (2)(a).

(7)It is immaterial whether the pain or suffering is physical or mental and whether it is caused by an act or omission.

(8)The cases in which a person materially assists activities for the purposes of subsection (5)(d) include those where the person—

(a)provides goods or services in support of the carrying out of the activities, or

(b)otherwise provides any financial or technological support in connection with their carrying out.]

Textual Amendments

F792S. 241A inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 13(3), 58(1)(6) (with s. 13(4)); S.I. 2018/78, reg. 3(c); S.I. 2021/724, reg. 2(1)(d)

242“Property obtained through unlawful conduct”U.K.

(1)A person obtains property through unlawful conduct (whether his own conduct or another’s) if he obtains property by or in return for the conduct.

(2)In deciding whether any property was obtained through unlawful conduct—

(a)it is immaterial whether or not any money, goods or services were provided in order to put the person in question in a position to carry out the conduct,

(b)it is not necessary to show that the conduct was of a particular kind if it is shown that the property was obtained through conduct of one of a number of kinds, each of which would have been unlawful conduct.

Chapter 2U.K.Civil recovery in the High Court or Court of Session

Modifications etc. (not altering text)

C62Pt. 5 Ch. 2: power to modify conferred (25.4.2013) by Crime and Courts Act 2013 (c. 22), s. 61(11)(f), Sch. 25 para. 7

Proceedings for recovery ordersU.K.

243 Proceedings for recovery orders in England and Wales or Northern IrelandU.K.

(1)Proceedings for a recovery order may be taken by the enforcement authority in the High Court against any person who the authority thinks holds recoverable property.

(2)The enforcement authority must serve the claim form—

(a)on the respondent, and

(b)unless the court dispenses with service, on any other person who the authority thinks holds any associated property which the authority wishes to be subject to a recovery order,

wherever domiciled, resident or present.

(3)If any property which the enforcement authority wishes to be subject to a recovery order is not specified in the claim form it must be described in the form in general terms; and the form must state whether it is alleged to be recoverable property or associated property.

(4)The references above to the claim form include the particulars of claim, where they are served subsequently.

[F793(5)Nothing in sections 245A to 255 limits any power of the court apart from those sections to grant interim relief in connection with proceedings (including prospective proceedings) under this Chapter.]

Textual Amendments

Commencement Information

I224S. 243 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

244 Proceedings for recovery orders in ScotlandU.K.

(1)Proceedings for a recovery order may be taken by the enforcement authority in the Court of Session against any person who the authority thinks holds recoverable property.

(2)The enforcement authority must serve the application—

(a)on the respondent, and

(b)unless the court dispenses with service, on any other person who the authority thinks holds any associated property which the authority wishes to be subject to a recovery order,

wherever domiciled, resident or present.

(3)If any property which the enforcement authority wishes to be subject to a recovery order is not specified in the application it must be described in the application in general terms; and the application must state whether it is alleged to be recoverable property or associated property.

Commencement Information

I225S. 244 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

245“Associated property”U.K.

(1)“Associated property” means property of any of the following descriptions (including property held by the respondent) which is not itself the recoverable property—

(a)any interest in the recoverable property,

(b)any other interest in the property in which the recoverable property subsists,

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

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

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

(2)References to property being associated with recoverable property are to be read accordingly.

(3)No property is to be treated as associated with recoverable property consisting of rights under a pension scheme (within the meaning of sections 273 to 275).

Commencement Information

I226S. 245 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

[F794245ZANotice to local authority: ScotlandU.K.

(1)This section applies if, in proceedings under this Chapter for a recovery order, the enforcement authority applies under section 266(8ZA) for decree of removing and warrant for ejection in relation to heritable property which consists of or includes a dwellinghouse.

(2)The enforcement authority must give notice of the application to the local authority in whose area the dwellinghouse is situated.

(3)Notice under subsection (2) must be given in the form and manner prescribed under section 11(3) of the Homelessness etc. (Scotland) Act 2003.

(4)In this section—

  • “dwellinghouse” has the meaning given by section 11(8) of the Homelessness etc. (Scotland) Act 2003;

  • “local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994; and “area”, in relation to a local authority, means the local government area for which the authority is constituted.]

Textual Amendments

F794S. 245ZA inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 29(2), 58(1)(6); S.I. 2018/78, reg. 3(l)

[F795Property freezing orders (England and Wales and Northern Ireland)U.K.

Textual Amendments

F795Ss. 245A-245D and cross-heading inserted (1.1.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 98(1), 178(8); S.I. 2005/3136, art. 3(a)

245AApplication for property freezing orderU.K.

(1)Where the enforcement authority may take proceedings for a recovery order in the High Court, the authority may apply to the court for a property freezing order (whether before or after starting the proceedings).

(2)A property freezing order is an order that—

(a)specifies or describes the property to which it applies, and

(b)subject to any exclusions (see section 245C(1)(b) and (2)), prohibits any person to whose property the order applies from in any way dealing with the property.

(3)An application for a property freezing order may be made without notice if the circumstances are such that notice of the application would prejudice any right of the enforcement authority to obtain a recovery order in respect of any property.

(4)The court may make a property freezing order on an application if it is satisfied that the condition in subsection (5) is met and, where applicable, that the condition in subsection (6) is met.

(5)The first condition is that there is a good arguable case—

(a)that the property to which the application for the order relates is or includes recoverable property, and

(b)that, if any of it is not recoverable property, it is associated property.

(6)The second condition is that, if—

(a)the property to which the application for the order relates includes property alleged to be associated property, and

(b)the enforcement authority has not established the identity of the person who holds it,

the authority has taken all reasonable steps to do so.

245BVariation and setting aside of orderU.K.

(1)The court may at any time vary or set aside a property freezing order.

(2)If the court makes an interim receiving order that applies to all of the property to which a property freezing order applies, it must set aside the property freezing order.

(3)If the court makes an interim receiving order that applies to some but not all of the property to which a property freezing order applies, it must vary the property freezing order so as to exclude any property to which the interim receiving order applies.

(4)If the court decides that any property to which a property freezing order applies is neither recoverable property nor associated property, it must vary the order so as to exclude the property.

(5)Before exercising power under this Chapter to vary or set aside a property freezing order, the court must (as well as giving the parties to the proceedings an opportunity to be heard) give such an opportunity to any person who may be affected by its decision.

(6)Subsection (5) does not apply where the court is acting as required by subsection (2) or (3).

245CExclusionsU.K.

(1)The power to vary a property freezing order includes (in particular) power to make exclusions as follows—

(a)power to exclude property from the order, and

(b)power, otherwise than by excluding property from the order, to make exclusions from the prohibition on dealing with the property to which the order applies.

(2)Exclusions from the prohibition on dealing with the property to which the order applies (other than exclusions of property from the order) may also be made when the order is made.

(3)An exclusion may, in particular, make provision for the purpose of enabling any person—

(a)to meet his reasonable living expenses, or

(b)to carry on any trade, business, profession or occupation.

(4)An exclusion may be made subject to conditions.

(5)Where the court exercises the power to make an exclusion for the purpose of enabling a person to meet legal expenses that he has incurred, or may incur, in respect of proceedings under this Part, it must ensure that the exclusion—

(a)is limited to reasonable legal expenses that the person has reasonably incurred or that he reasonably incurs,

(b)specifies the total amount that may be released for legal expenses in pursuance of the exclusion, and

(c)is made subject to the required conditions (see section 286A) in addition to any conditions imposed under subsection (4).

(6)The court, in deciding whether to make an exclusion for the purpose of enabling a person to meet legal expenses of his in respect of proceedings under this Part—

(a)must have regard (in particular) to the desirability of the person being represented in any proceedings under this Part in which he is a participant, and

(b)must, where the person is the respondent, disregard the possibility that legal representation of the person in any such proceedings might, were an exclusion not made, be [F796made available under arrangements made for the purposes of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 or funded by] [F797the Department of Justice].

(7)If excluded property is not specified in the order it must be described in the order in general terms.

(8)The power to make exclusions must, subject to subsection (6), be exercised with a view to ensuring, so far as practicable, that the satisfaction of any right of the enforcement authority to recover the property obtained through unlawful conduct is not unduly prejudiced.

(9)Subsection (8) does not apply where the court is acting as required by section 245B(3) or (4).

Textual Amendments

F796Words in s. 245C(6)(b) substituted (1.4.2013) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 5 para. 59; S.I. 2013/453, art. 3(h) (with savings and transitional provisions in S.I. 2013/534, art. 6)

245DRestriction on proceedings and remediesU.K.

(1)While a property freezing order has effect—

(a)the court may stay any action, execution or other legal process in respect of the property to which the order applies, and

(b)no distress may be levied[F798, and no power to use the procedure in Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 (taking control of goods) may be exercised,] against the property to which the order applies except with the leave of the court and subject to any terms the court may impose.

(2)If a court (whether the High Court or any other court) in which proceedings are pending in respect of any property is satisfied that a property freezing order has been applied for or made in respect of the property, it may either stay the proceedings or allow them to continue on any terms it thinks fit.

(3)If a property freezing order applies to a tenancy of any premises, no landlord or other person to whom rent is payable may exercise the right of forfeiture by peaceable re-entry in relation to the premises in respect of any failure by the tenant to comply with any term or condition of the tenancy, except with the leave of the court and subject to any terms the court may impose.

(4)Before exercising any power conferred by this section, the court must (as well as giving the parties to any of the proceedings concerned an opportunity to be heard) give such an opportunity to any person who may be affected by the court's decision.]

Textual Amendments

F798Words in s. 245D(1)(b) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 34(5), 58(1)(6); S.I. 2018/78, reg. 3(s)

[F799245EReceivers in connection with property freezing ordersU.K.

(1)Subsection (2) applies if—

(a)the High Court makes a property freezing order on an application by an enforcement authority, and

(b)the authority applies to the court to proceed under subsection (2) (whether as part of the application for the property freezing order or at any time afterwards).

(2)The High Court may by order appoint a receiver in respect of any property to which the property freezing order applies.

(3)An application for an order under this section may be made without notice if the circumstances are such that notice of the application would prejudice any right of the enforcement authority to obtain a recovery order in respect of any property.

(4)In its application for an order under this section, the enforcement authority must nominate a suitably qualified person for appointment as a receiver.

(5)Such a person may be a member of staff of the enforcement authority.

(6)The enforcement authority may apply a sum received by it under section 280(2) in making payment of the remuneration and expenses of a receiver appointed under this section.

(7)Subsection (6) does not apply in relation to the remuneration of the receiver if he is a member of the staff of the enforcement authority (but it does apply in relation to such remuneration if the receiver is a person providing services under arrangements made by the enforcement authority).

Textual Amendments

245FPowers of receivers appointed under section 245EU.K.

(1)If the High Court appoints a receiver under section 245E on an application by an enforcement authority, the court may act under this section on the application of the authority.

(2)The court may by order authorise or require the receiver—

(a)to exercise any of the powers mentioned in paragraph 5 of Schedule 6 (management powers) in relation to any property in respect of which the receiver is appointed,

(b)to take any other steps the court thinks appropriate in connection with the management of any such property (including securing the detention, custody or preservation of the property in order to manage it).

(3)The court may by order require any person in respect of whose property the receiver is appointed—

(a)to bring the property to a place (in England and Wales or, as the case may be, Northern Ireland) specified by the receiver or to place it in the custody of the receiver (if, in either case, he is able to do so),

(b)to do anything he is reasonably required to do by the receiver for the preservation of the property.

(4)The court may by order require any person in respect of whose property the receiver is appointed to bring any documents relating to the property which are in his possession or control to a place (in England and Wales or, as the case may be, Northern Ireland) specified by the receiver or to place them in the custody of the receiver.

(5)In subsection (4) “document” means anything in which information of any description is recorded.

(6)Any prohibition on dealing with property imposed by a property freezing order does not prevent a person from complying with any requirements imposed by virtue of this section.

(7)If—

(a)the receiver deals with any property which is not property in respect of which he is appointed under section 245E, and

(b)at the time he deals with the property he believes on reasonable grounds that he is entitled to do so by virtue of his appointment,

the receiver is not liable to any person in respect of any loss or damage resulting from his dealing with the property except so far as the loss or damage is caused by his negligence.

Textual Amendments

245GSupervision of section 245E receiver and variationsU.K.

(1)Any of the following persons may at any time apply to the High Court for directions as to the exercise of the functions of a receiver appointed under section 245E—

(a)the receiver,

(b)any party to the proceedings for the appointment of the receiver or the property freezing order concerned,

(c)any person affected by any action taken by the receiver,

(d)any person who may be affected by any action proposed to be taken by the receiver.

(2)Before giving any directions under subsection (1), the court must give an opportunity to be heard to—

(a)the receiver,

(b)the parties to the proceedings for the appointment of the receiver and for the property freezing order concerned,

(c)any person who may be interested in the application under subsection (1).

(3)The court may at any time vary or set aside the appointment of a receiver under section 245E, any order under section 245F or any directions under this section.

(4)Before exercising any power under subsection (3), the court must give an opportunity to be heard to—

(a)the receiver,

(b)the parties to the proceedings for the appointment of the receiver, for the order under section 245F or, as the case may be, for the directions under this section;

(c)the parties to the proceedings for the property freezing order concerned,

(d)any person who may be affected by the court's decision.]

Textual Amendments

Interim receiving orders (England and Wales and Northern Ireland)U.K.

246 Application for interim receiving orderU.K.

(1)Where the enforcement authority may take proceedings for a recovery order in the High Court, the authority may apply to the court for an interim receiving order (whether before or after starting the proceedings).

(2)An interim receiving order is an order for—

(a)the detention, custody or preservation of property, and

(b)the appointment of an interim receiver.

(3)An application for an interim receiving order may be made without notice if the circumstances are such that notice of the application would prejudice any right of the enforcement authority to obtain a recovery order in respect of any property.

(4)The court may make an interim receiving order on the application if it is satisfied that the conditions in subsections (5) and, where applicable, (6) are met.

(5)The first condition is that there is a good arguable case—

(a)that the property to which the application for the order relates is or includes recoverable property, and

(b)that, if any of it is not recoverable property, it is associated property.

(6)The second condition is that, if—

(a)the property to which the application for the order relates includes property alleged to be associated property, and

(b)the enforcement authority has not established the identity of the person who holds it,

the authority has taken all reasonable steps to do so.

(7)In its application for an interim receiving order, the enforcement authority must nominate a suitably qualified person for appointment as interim receiver, but the nominee may not be a member of the staff of the [F800enforcement authority] .

(8)The extent of the power to make an interim receiving order is not limited by sections 247 to 255.

Textual Amendments

Commencement Information

I227S. 246 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

247 Functions of interim receiverU.K.

(1)An interim receiving order may authorise or require the interim receiver—

(a)to exercise any of the powers mentioned in Schedule 6,

(b)to take any other steps the court thinks appropriate,

for the purpose of securing the detention, custody or preservation of the property to which the order applies or of taking any steps under subsection (2).

(2)An interim receiving order must require the interim receiver to take any steps which the court thinks necessary to establish—

(a)whether or not the property to which the order applies is recoverable property or associated property,

(b)whether or not any other property is recoverable property (in relation to the same unlawful conduct) and, if it is, who holds it.

(3)If—

(a)the interim receiver deals with any property which is not property to which the order applies, and

(b)at the time he deals with the property he believes on reasonable grounds that he is entitled to do so in pursuance of the order,

the interim receiver is not liable to any person in respect of any loss or damage resulting from his dealing with the property except so far as the loss or damage is caused by his negligence.

Commencement Information

I228S. 247 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

[F801Property freezing orders and interim receiving orders: registration]U.K.

Textual Amendments

248 RegistrationU.K.

(1)The registration Acts—

(a)apply in relation to [F802property freezing orders, and in relation to interim receiving orders,] as they apply in relation to orders which affect land and are made by the court for the purpose of enforcing judgements or recognisances,

(b)apply in relation to applications for [F803property freezing orders, and in relation to applications for interim receiving orders, ] as they apply in relation to other pending land actions.

(2)The registration Acts are—

(a)[F804the Land Registration Act 1925 (c. 21),]

(b)the Land Charges Act 1972 (c. 61), and

(c)the Land Registration Act 2002 (c. 9).

(3)But no notice may be entered in the register of title under the Land Registration Act 2002 in respect of [F805a property freezing order or]an interim receiving order.

(4)[F806A person applying for an interim receiving order must be treated for the purposes of section 57 of the Land Registration Act 1925 (inhibitions) as a person interested in relation to any registered land to which—

(a)the application relates, or

(b)an interim receiving order made in pursuance of the application relates.]

Textual Amendments

F804S. 248(2)(a) repealed (prosp.) by Proceeds of Crime Act 2002 (c. 29), ss. 457, 458(1), Sch. 12

Commencement Information

I229S. 248 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

249 Registration (Northern Ireland)U.K.

(1)A person applying for[F807a property freezing order or ] an interim receiving order must be treated for the purposes of section 66 of the Land Registration Act (Northern Ireland) 1970 (c. 18 (N.I.)) (cautions) as a person interested in relation to any registered land to which—

(a)the application relates, or

(b)[F808a property freezing order, or an interim receiving order,] made in pursuance of the application relates.

[F809(1A)Upon being served with a copy of a property freezing order, the Registrar must, in respect of any registered land to which a property freezing order or an application for a property freezing order relates, make an entry inhibiting any dealing with the land without the consent of the High Court.]

(2)Upon being served with a copy of an interim receiving order, the Registrar must, in respect of any registered land to which an interim receiving order or an application for an interim receiving order relates, make an entry inhibiting any dealing with the land without the consent of the High Court.

(3)Subsections (2) and (4) of section 67 of the Land Registration Act (Northern Ireland) 1970 (inhibitions) apply to an entry made under subsection[F810(1A) or] (2) as they apply to an entry made on the application of any person interested in the registered land under subsection (1) of that section.

(4)Where [F811a property freezing order or ]an interim receiving order has been protected by an entry registered under the Land Registration Act (Northern Ireland) 1970 or the Registration of Deeds Acts, an order setting aside the[F812property freezing order or ] interim receiving order may require that entry to be vacated.

(5)In this section—

  • “Registrar” and “entry” have the same meanings as in the Land Registration Act (Northern Ireland) 1970, and

  • “Registration of Deeds Acts” has the meaning given by section 46(2) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)).

Textual Amendments

Commencement Information

I230S. 249 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

[F813Interim receiving orders: further provisions]U.K.

Textual Amendments

250 Duties of respondent etc.U.K.

(1)An interim receiving order may require any person to whose property the order applies—

(a)to bring the property to a place (in England and Wales or, as the case may be, Northern Ireland) specified by the interim receiver or place it in the custody of the interim receiver (if, in either case, he is able to do so),

(b)to do anything he is reasonably required to do by the interim receiver for the preservation of the property.

(2)An interim receiving order may require any person to whose property the order applies to bring any documents relating to the property which are in his possession or control to a place (in England and Wales or, as the case may be, Northern Ireland) specified by the interim receiver or to place them in the custody of the interim receiver.

“Document” means anything in which information of any description is recorded.

Commencement Information

I231S. 250 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

251 Supervision of interim receiver and variation of orderU.K.

(1)The interim receiver, any party to the proceedings and any person affected by any action taken by the interim receiver, or who may be affected by any action proposed to be taken by him, may at any time apply to the court for directions as to the exercise of the interim receiver’s functions.

(2)Before giving any directions under subsection (1), the court must (as well as giving the parties to the proceedings an opportunity to be heard) give such an opportunity to the interim receiver and to any person who may be interested in the application.

(3)The court may at any time vary or set aside an interim receiving order.

(4)Before exercising any power under this Chapter to vary or set aside an interim receiving order, the court must (as well as giving the parties to the proceedings an opportunity to be heard) give such an opportunity to the interim receiver and to any person who may be affected by the court’s decision.

Commencement Information

I232S. 251 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

252 Restrictions on dealing etc. with propertyU.K.

(1)An interim receiving order must, subject to any exclusions made in accordance with this section, prohibit any person to whose property the order applies from dealing with the property.

(2)Exclusions may be made when the interim receiving order is made or on an application to vary the order.

(3)An exclusion may, in particular, make provision for the purpose of enabling any person—

(a)to meet his reasonable living expenses, or

(b)to carry on any trade, business, profession or occupation,

and may be made subject to conditions.

[F814(4)Where the court exercises the power to make an exclusion for the purpose of enabling a person to meet legal expenses that he has incurred, or may incur, in respect of proceedings under this Part, it must ensure that the exclusion—

(a)is limited to reasonable legal expenses that the person has reasonably incurred or that he reasonably incurs,

(b)specifies the total amount that may be released for legal expenses in pursuance of the exclusion, and

(c)is made subject to the required conditions (see section 286A) in addition to any conditions imposed under subsection (3).

(4A)The court, in deciding whether to make an exclusion for the purpose of enabling a person to meet legal expenses of his in respect of proceedings under this Part—

(a)must have regard (in particular) to the desirability of the person being represented in any proceedings under this Part in which he is a participant, and

(b)must, where the person is the respondent, disregard the possibility that legal representation of the person in any such proceedings might, were an exclusion not made, be [F815made available under arrangements made for the purposes of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 or funded by] [F816the Department of Justice].]

(5)If the excluded property is not specified in the order it must be described in the order in general terms.

(6)The power to make exclusions must [F817, subject to subsection (4A),] be exercised with a view to ensuring, so far as practicable, that the satisfaction of any right of the enforcement authority to recover the property obtained through unlawful conduct is not unduly prejudiced.

Textual Amendments

F815Words in s. 252(4A)(b) substituted (1.4.2013) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 5 para. 60; S.I. 2013/453, art. 3(h) (with savings and transitional provisions in S.I. 2013/534, art. 6)

Commencement Information

I233S. 252 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

253 Restriction on proceedings and remediesU.K.

(1)While an interim receiving order has effect—

(a)the court may stay any action, execution or other legal process in respect of the property to which the order applies,

(b)no distress may be levied [F818, and no power to use the procedure in Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 (taking control of goods) may be exercised,] against the property to which the order applies except with the leave of the court and subject to any terms the court may impose.

(2)If a court (whether the High Court or any other court) in which proceedings are pending in respect of any property is satisfied that an interim receiving order has been applied for or made in respect of the property, the court may either stay the proceedings or allow them to continue on any terms it thinks fit.

(3)If the interim receiving order applies to a tenancy of any premises, no landlord or other person to whom rent is payable may exercise any right of forfeiture by peaceable re-entry in relation to the premises in respect of any failure by the tenant to comply with any term or condition of the tenancy, except with the leave of the court and subject to any terms the court may impose.

(4)Before exercising any power conferred by this section, the court must (as well as giving the parties to any of the proceedings in question an opportunity to be heard) give such an opportunity to the interim receiver (if appointed) and any person who may be affected by the court’s decision.

Textual Amendments

Commencement Information

I234S. 253 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

254 Exclusion of property which is not recoverable etc.U.K.

(1)If the court decides that any property to which an interim receiving order applies is neither recoverable property nor associated property, it must vary the order so as to exclude it.

(2)The court may vary an interim receiving order so as to exclude from the property to which the order applies any property which is alleged to be associated property if the court thinks that the satisfaction of any right of the enforcement authority to recover the property obtained through unlawful conduct will not be prejudiced.

(3)The court may exclude any property within subsection (2) on any terms or conditions, applying while the interim receiving order has effect, which the court thinks necessary or expedient.

Commencement Information

I235S. 254 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

255 ReportingU.K.

(1)An interim receiving order must require the interim receiver to inform the enforcement authority and the court as soon as reasonably practicable if he thinks that—

(a)any property to which the order applies by virtue of a claim that it is recoverable property is not recoverable property,

(b)any property to which the order applies by virtue of a claim that it is associated property is not associated property,

(c)any property to which the order does not apply is recoverable property (in relation to the same unlawful conduct) or associated property, or

(d)any property to which the order applies is held by a person who is different from the person it is claimed holds it,

or if he thinks that there has been any other material change of circumstances.

(2)An interim receiving order must require the interim receiver—

(a)to report his findings to the court,

(b)to serve copies of his report on the enforcement authority and on any person who holds any property to which the order applies or who may otherwise be affected by the report.

Commencement Information

I236S. 255 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

[F819Prohibitory property orders (Scotland)U.K.

Textual Amendments

255AApplication for prohibitory property orderU.K.

(1)Where the enforcement authority may take proceedings for a recovery order in the Court of Session, the authority may apply to the court for a prohibitory property order (whether before or after starting the proceedings).

(2)A prohibitory property order is an order that—

(a)specifies or describes the property to which it applies, and

(b)subject to any exclusions (see section 255C(1)(b) and (2)), prohibits any person to whose property the order applies from in any way dealing with the property.

(3)An application for a prohibitory property order may be made without notice if the circumstances are such that notice of the application would prejudice any right of the enforcement authority to obtain a recovery order in respect of any property.

(4)The court may make a prohibitory property order on an application if it is satisfied that the condition in subsection (5) is met and, where applicable, that the condition in subsection (6) is met.

(5)The first condition is that there is a good arguable case—

(a)that the property to which the application for the order relates is or includes recoverable property, and

(b)that, if any of it is not recoverable property, it is associated property.

(6)The second condition is that, if—

(a)the property to which the application for the order relates includes property alleged to be associated property, and

(b)the enforcement authority has not established the identity of the person who holds it,

the authority has taken all reasonable steps to do so.

255BVariation and recall of prohibitory property orderU.K.

(1)The court may at any time vary or recall a prohibitory property order.

(2)If the court makes an interim administration order that applies to all of the property to which a prohibitory property order applies, it must recall the prohibitory property order.

(3)If the court makes an interim administration order that applies to some but not all of the property to which a prohibitory property order applies, it must vary the prohibitory property order so as to exclude any property to which the interim administration order applies.

(4)If the court decides that any property to which a prohibitory property order applies is neither recoverable property nor associated property, it must vary the order so as to exclude the property.

(5)Before exercising power under this Chapter to vary or recall a prohibitory property order, the court must (as well as giving the parties to the proceedings an opportunity to be heard) give such an opportunity to any person who may be affected by its decision.

(6)Subsection (5) does not apply where the court is acting as required by subsection (2) or (3).

255CExclusionsU.K.

(1)The power to vary a prohibitory property order includes (in particular) power to make exclusions as follows—

(a)power to exclude property from the order, and

(b)power, otherwise than by excluding property from the order, to make exclusions from the prohibition on dealing with the property to which the order applies.

(2)Exclusions from the prohibition on dealing with the property to which the order applies (other than exclusions of property from the order) may also be made when the order is made.

(3)An exclusion may, in particular, make provision for the purpose of enabling any person—

(a)to meet his reasonable living expenses, or

(b)to carry on any trade, business, profession or occupation.

(4)An exclusion may be made subject to conditions.

(5)An exclusion may not be made for the purpose of enabling any person to meet any legal expenses in respect of proceedings under this Part.

(6)If excluded property is not specified in the order it must be described in the order in general terms.

(7)The power to make exclusions must be exercised with a view to ensuring, so far as practicable, that the satisfaction of any right of the enforcement authority to recover the property obtained through unlawful conduct is not unduly prejudiced.

(8)Subsection (7) does not apply where the court is acting as required by section 255B(3) or (4).

255DRestriction on proceedings and remediesU.K.

(1)While a prohibitory property order has effect the court may sist any action, execution or other legal process in respect of the property to which the order applies.

(2)If a court (whether the Court of Session or any other court) in which proceedings are pending in respect of any property is satisfied that a prohibitory property order has been applied for or made in respect of the property, it may either sist the proceedings or allow them to continue on any terms it thinks fit.

(3)Before exercising any power conferred by this section, the court must (as well as giving the parties to any of the proceedings concerned an opportunity to be heard) give such an opportunity to any person who may be affected by the court's decision.

255EArrestment of property affected by prohibitory property orderU.K.

(1)On the application of the enforcement authority the Court of Session may, in relation to moveable recoverable property to which a prohibitory property order applies (whether generally or to such of it as is specified in the application), grant warrant for arrestment.

(2)An application under subsection (1) may be made at the same time as the application for the prohibitory property order or at any time thereafter.

(3)Such a warrant for arrestment may be granted only if the property would be arrestable if the person entitled to it were a debtor.

(4)A warrant under subsection (1) has effect as if granted on the dependence of an action for debt at the instance of the enforcement authority against the person and may be executed, recalled, loosed or restricted accordingly.

(5)An arrestment executed under this section ceases to have effect when, or in so far as, the prohibitory property order ceases to apply in respect of the property in relation to which the warrant for arrestment was granted.

(6)If an arrestment ceases to have effect to any extent by virtue of subsection (5) the enforcement authority must apply to the Court of Session for an order recalling or, as the case may be, restricting the arrestment.

255FInhibition of property affected by prohibitory property orderU.K.

(1)On the application of the enforcement authority, the Court of Session may, in relation to the property mentioned in subsection (2), grant warrant for inhibition against any person specified in a prohibitory property order.

(2)That property is heritable property situated in Scotland to which the prohibitory property order applies (whether generally or to such of it as is specified in the application).

(3)The warrant for inhibition—

(a)has effect as if granted on the dependence of an action for debt by the enforcement authority against the person and may be executed, recalled, loosed or restricted accordingly, and

(b)has the effect of letters of inhibition and must forthwith be registered by the enforcement authority in the register of inhibitions and adjudications.

(4)Section 155 of the Titles to Land Consolidation (Scotland) Act 1868 (c. 101) (effective date of inhibition) applies in relation to an inhibition for which warrant is granted under subsection (1) as it applies to an inhibition by separate letters or contained in a summons.

(5)An inhibition executed under this section ceases to have effect when, or in so far as, the prohibitory property order ceases to apply in respect of the property in relation to which the warrant for inhibition was granted.

(6)If an inhibition ceases to have effect to any extent by virtue of subsection (5) the enforcement authority must—

(a)apply for the recall or, as the case may be, the restriction of the inhibition, and

(b)ensure that the recall or restriction is reflected in the register of inhibitions and adjudications.]

[F820255GReceivers in connection with prohibitory property ordersU.K.

(1)Subsection (2) applies if—

(a)the Court of Session makes a prohibitory property order on an application by an enforcement authority, and

(b)the authority applies to the court to proceed under subsection (2) (whether as part of the application for the prohibitory property order or at any time afterwards).

(2)The Court of Session may by order appoint a person (a “PPO receiver”) in respect of any property to which the prohibitory property order applies.

(3)An application for an order under this section may be made without notice if the circumstances are such that notice of the application would prejudice any right of the enforcement authority to obtain a recovery order in respect of any property.

(4)In its application for an order under this section, the enforcement authority must nominate a suitably qualified person for appointment as a PPO receiver.

(5)Such a person may be a member of staff of the enforcement authority.

(6)The enforcement authority may apply a sum received by it under section 280(2) in making payment of the remuneration and expenses of a PPO receiver appointed under this section.

(7)Subsection (6) does not apply in relation to the remuneration of the PPO receiver if he is a member of the staff of the enforcement authority (but it does apply in relation to such remuneration if the PPO receiver is a person providing services under arrangements made by the enforcement authority).

Textual Amendments

255HPowers of receivers appointed under section 255GU.K.

(1)If the Court of Session appoints a PPO receiver under section 255G on an application by an enforcement authority, the court may act under this section on the application of the authority.

(2)The court may by order authorise or require the PPO receiver—

(a)to exercise any of the powers mentioned in paragraph 5 of Schedule 6 (management powers) in relation to any property in respect of which the PPO receiver is appointed,

(b)to take any other steps the court thinks appropriate in connection with the management of any such property (including securing the detention, custody or preservation of the property in order to manage it).

(3)The court may by order require any person in respect of whose property the PPO receiver is appointed—

(a)to bring the property to a place in Scotland specified by the PPO receiver or to place it in the custody of the PPO receiver (if, in either case, he is able to do so),

(b)to do anything he is reasonably required to do by the PPO receiver for the preservation of the property.

(4)The court may by order require any person in respect of whose property the PPO receiver is appointed to bring any documents relating to the property which are in his possession or control to a place in Scotland specified by the PPO receiver or to place them in the custody of the PPO receiver.

(5)In subsection (4) “document” means anything in which information of any description is recorded.

(6)Any prohibition on dealing with property imposed by a prohibitory property order does not prevent a person from complying with any requirements imposed by virtue of this section.

(7)If—

(a)the PPO receiver deals with any property which is not property in respect of which he is appointed under section 255G, and

(b)at the time he deals with the property the PPO receiver believes on reasonable grounds that he is entitled to do so by virtue of his appointment,

the PPO receiver is not liable to any person in respect of any loss or damage resulting from his dealing with the property except so far as the loss or damage is caused by his negligence.

Textual Amendments

255ISupervision of PPO receiver and variationsU.K.

(1)Any of the following persons may at any time apply to the Court of Session for directions as to the exercise of the functions of a PPO receiver—

(a)the PPO receiver,

(b)any party to the proceedings for the appointment of the PPO receiver or the prohibitory property order concerned,

(c)any person affected by any action taken by the PPO receiver,

(d)any person who may be affected by any action proposed to be taken by the PPO receiver.

(2)Before giving any directions under subsection (1), the court must give an opportunity to be heard to—

(a)the PPO receiver,

(b)the parties to the proceedings for the appointment of the PPO receiver and for the prohibitory property order concerned,

(c)any person who may be interested in the application under subsection (1).

(3)The court may at any time vary or recall—

(a)an order appointing a PPO receiver,

(b)any order under section 255H, or

(c)any directions under this section.

(4)Before exercising any power under subsection (3), the court must give an opportunity to be heard to—

(a)the PPO receiver,

(b)the parties to the proceedings for—

(i)the appointment of the PPO receiver,

(ii)the order under section 255H, or

(iii)(as the case may be) the directions under this section,

(c)the parties to the proceedings for the prohibitory property order concerned,

(d)any person who may be affected by the court's decision.]

Textual Amendments

Interim administration orders (Scotland)U.K.

256 Application for interim administration orderU.K.

(1)Where the enforcement authority may take proceedings for a recovery order in the Court of Session, the authority may apply to the court for an interim administration order (whether before or after starting the proceedings).

(2)An interim administration order is an order for—

(a)the detention, custody or preservation of property, and

(b)the appointment of an interim administrator.

(3)An application for an interim administration order may be made without notice if the circumstances are such that notice of the application would prejudice any right of the enforcement authority to obtain a recovery order in respect of any property.

(4)The court may make an interim administration order on the application if it is satisfied that the conditions in subsections (5) and, where applicable, (6) are met.

(5)The first condition is that there is a probabilis causa litigandi—

(a)that the property to which the application for the order relates is or includes recoverable property, and

(b)that, if any of it is not recoverable property, it is associated property.

(6)The second condition is that, if—

(a)the property to which the application for the order relates includes property alleged to be associated property, and

(b)the enforcement authority has not established the identity of the person who holds it,

the authority has taken all reasonable steps to do so.

(7)In its application for an interim administration order, the enforcement authority must nominate a suitably qualified person for appointment as interim administrator, but the nominee may not be a member of the staff of the Scottish Administration.

(8)The extent of the power to make an interim administration order is not limited by sections 257 to 264.

Commencement Information

I237S. 256 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

257 Functions of interim administratorU.K.

(1)An interim administration order may authorise or require the interim administrator—

(a)to exercise any of the powers mentioned in Schedule 6,

(b)to take any other steps the court thinks appropriate,

for the purpose of securing the detention, custody or preservation of the property to which the order applies or of taking any steps under subsection (2).

(2)An interim administration order must require the interim administrator to take any steps which the court thinks necessary to establish—

(a)whether or not the property to which the order applies is recoverable property or associated property,

(b)whether or not any other property is recoverable property (in relation to the same unlawful conduct) and, if it is, who holds it.

(3)If—

(a)the interim administrator deals with any property which is not property to which the order applies, and

(b)at the time he deals with the property he believes on reasonable grounds that he is entitled to do so in pursuance of the order,

the interim administrator is not liable to any person in respect of any loss or damage resulting from his dealing with the property except so far as the loss or damage is caused by his negligence.

Commencement Information

I238S. 257 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

258 Inhibition of property affected by orderU.K.

(1)On the application of the enforcement authority, the Court of Session may, in relation to the property mentioned in subsection (2), grant warrant for inhibition against any person specified in an interim administration order.

(2)That property is heritable property situated in Scotland to which the interim administration order applies (whether generally or such of it as is specified in the application).

(3)The warrant for inhibition—

(a)has effect as if granted on the dependence of an action for debt by the enforcement authority against the person and may be executed, recalled, loosed or restricted accordingly, and

(b)has the effect of letters of inhibition and must forthwith be registered by the enforcement authority in the register of inhibitions and adjudications.

(4)Section 155 of the Titles to Land Consolidation (Scotland) Act 1868 (c. 101) (effective date of inhibition) applies in relation to an inhibition for which warrant is granted under subsection (1) as it applies to an inhibition by separate letters or contained in a summons.

(5)The execution of an inhibition under this section in respect of property does not prejudice the exercise of an interim administrator’s powers under or for the purposes of this Part in respect of that property.

(6)An inhibition executed under this section ceases to have effect when, or in so far as, the interim administration order ceases to apply in respect of the property in relation to which the warrant for inhibition was granted.

(7)If an inhibition ceases to have effect to any extent by virtue of subsection (6) the enforcement authority must—

(a)apply for the recall or, as the case may be, the restriction of the inhibition, and

(b)ensure that the recall or restriction is reflected in the register of inhibitions and adjudications.

Commencement Information

I239S. 258 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

259 Duties of respondent etc.U.K.

(1)An interim administration order may require any person to whose property the order applies—

(a)to bring the property to a place (in Scotland) specified by the interim administrator or place it in the custody of the interim administrator (if, in either case, he is able to do so),

(b)to do anything he is reasonably required to do by the interim administrator for the preservation of the property.

(2)An interim administration order may require any person to whose property the order applies to bring any documents relating to the property which are in his possession or control to a place (in Scotland) specified by the interim administrator or to place them in the custody of the interim administrator.

“Document” means anything in which information of any description is recorded.

Commencement Information

I240S. 259 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

260 Supervision of interim administrator and variation of orderU.K.

(1)The interim administrator, any party to the proceedings and any person affected by any action taken by the interim administrator, or who may be affected by any action proposed to be taken by him, may at any time apply to the court for directions as to the exercise of the interim administrator’s functions.

(2)Before giving any directions under subsection (1), the court must (as well as giving the parties to the proceedings an opportunity to be heard) give such an opportunity to the interim administrator and to any person who may be interested in the application.

(3)The court may at any time vary or recall an interim administration order.

(4)Before exercising any power under this Chapter to vary or set aside an interim administration order, the court must (as well as giving the parties to the proceedings an opportunity to be heard) give such an opportunity to the interim administrator and to any person who may be affected by the court’s decision.

Commencement Information

I241S. 260 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

261 Restrictions on dealing etc. with propertyU.K.

(1)An interim administration order must, subject to any exclusions made in accordance with this section, prohibit any person to whose property the order applies from dealing with the property.

(2)Exclusions may be made when the interim administration order is made or on an application to vary the order.

(3)An exclusion may, in particular, make provision for the purpose of enabling any person—

(a)to meet his reasonable living expenses, or

(b)to carry on any trade, business, profession or occupation,

and may be made subject to conditions.

(4)But an exclusion may not be made for the purpose of enabling any person to meet any legal expenses in respect of proceedings under this Part.

(5)If the excluded property is not specified in the order it must be described in the order in general terms.

(6)The power to make exclusions must be exercised with a view to ensuring, so far as practicable, that the satisfaction of any right of the enforcement authority to recover the property obtained through unlawful conduct is not unduly prejudiced.

Commencement Information

I242S. 261 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

262 Restriction on proceedings and remediesU.K.

(1)While an interim administration order has effect, the court may sist any action, execution or other legal process in respect of the property to which the order applies.

(2)If a court (whether the Court of Session or any other court) in which proceedings are pending in respect of any property is satisfied that an interim administration order has been applied for or made in respect of the property, the court may either sist the proceedings or allow them to continue on any terms it thinks fit.

(3)Before exercising any power conferred by this section, the court must (as well as giving the parties to any of the proceedings in question an opportunity to be heard) give such an opportunity to the interim administrator (if appointed) and any person who may be affected by the court’s decision.

Commencement Information

I243S. 262 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

263 Exclusion of property which is not recoverable etc.U.K.

(1)If the court decides that any property to which an interim administration order applies is neither recoverable property nor associated property, it must vary the order so as to exclude it.

(2)The court may vary an interim administration order so as to exclude from the property to which the order applies any property which is alleged to be associated property if the court thinks that the satisfaction of any right of the enforcement authority to recover the property obtained through unlawful conduct will not be prejudiced.

(3)The court may exclude any property within subsection (2) on any terms or conditions, applying while the interim administration order has effect, which the court thinks necessary or expedient.

Commencement Information

I244S. 263 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

264 ReportingU.K.

(1)An interim administration order must require the interim administrator to inform the enforcement authority and the court as soon as reasonably practicable if he thinks that—

(a)any property to which the order applies by virtue of a claim that it is recoverable property is not recoverable property,

(b)any property to which the order applies by virtue of a claim that it is associated property is not associated property,

(c)any property to which the order does not apply is recoverable property (in relation to the same unlawful conduct) or associated property, or

(d)any property to which the order applies is held by a person who is different from the person it is claimed holds it,

or if he thinks that there has been any other material change of circumstances.

(2)An interim administration order must require the interim administrator—

(a)to report his findings to the court,

(b)to serve copies of his report on the enforcement authority and on any person who holds any property to which the order applies or who may otherwise be affected by the report.

Commencement Information

I245S. 264 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

265 Arrestment of property affected by interim administration orderU.K.

(1)On the application of the enforcement authority or the interim administrator the Court of Session may, in relation to moveable recoverable property to which an interim administration order applies (whether generally or such of it as is specified in the application), grant warrant for arrestment.

(2)An application by the enforcement authority under subsection (1) may be made at the same time as the application for the interim administration order or at any time thereafter.

(3)Such a warrant for arrestment may be granted only if the property would be arrestable if the person entitled to it were a debtor.

(4)A warrant under subsection (1) has effect as if granted on the dependence of an action for debt at the instance of the enforcement authority or, as the case may be, the interim administrator against the person and may be executed, recalled, loosed or restricted accordingly.

(5)The execution of an arrestment under this section in respect of property does not prejudice the exercise of an interim administrator’s powers under or for the purposes of this Part in respect of that property.

(6)An arrestment executed under this section ceases to have effect when, or in so far as, the interim administration order ceases to apply in respect of the property in relation to which the warrant for arrestment was granted.

(7)If an arrestment ceases to have effect to any extent by virtue of subsection (6) the enforcement authority or, as the case may be, the interim administrator must apply to the Court of Session for an order recalling or, as the case may be, restricting the arrestment.

Commencement Information

I246S. 265 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

Vesting and realisation of recoverable propertyU.K.

266 Recovery ordersU.K.

(1)If in proceedings under this Chapter the court is satisfied that any property is recoverable, the court must make a recovery order.

(2)The recovery order must vest the recoverable property in the trustee for civil recovery.

(3)But the court may not make in a recovery order—

(a)any provision in respect of any recoverable property if each of the conditions in subsection (4) or (as the case may be) (5) is met and it would not be just and equitable to do so, or

(b)any provision which is incompatible with any of the Convention rights (within the meaning of the Human Rights Act 1998 (c. 42)).

(4)In relation to a court in England and Wales or Northern Ireland, the conditions referred to in subsection (3)(a) are that—

(a)the respondent obtained the recoverable property in good faith,

(b)he took steps after obtaining the property which he would not have taken if he had not obtained it or he took steps before obtaining the property which he would not have taken if he had not believed he was going to obtain it,

(c)when he took the steps, he had no notice that the property was recoverable,

(d)if a recovery order were made in respect of the property, it would, by reason of the steps, be detrimental to him.

(5)In relation to a court in Scotland, the conditions referred to in subsection (3)(a) are that—

(a)the respondent obtained the recoverable property in good faith,

(b)he took steps after obtaining the property which he would not have taken if he had not obtained it or he took steps before obtaining the property which he would not have taken if he had not believed he was going to obtain it,

(c)when he took the steps, he had no reasonable grounds for believing that the property was recoverable,

(d)if a recovery order were made in respect of the property, it would, by reason of the steps, be detrimental to him.

(6)In deciding whether it would be just and equitable to make the provision in the recovery order where the conditions in subsection (4) or (as the case may be) (5) are met, the court must have regard to—

(a)the degree of detriment that would be suffered by the respondent if the provision were made,

(b)the enforcement authority’s interest in receiving the realised proceeds of the recoverable property.

(7)A recovery order may sever any property.

(8)A recovery order may impose conditions as to the manner in which the trustee for civil recovery may deal with any property vested by the order for the purpose of realising it.

[F821(8ZA)If the recoverable property in respect of which the Court of Session makes a recovery order includes heritable property, the Court of Session must, on the application of the enforcement authority, also grant decree of removing and warrant for ejection, enforceable by the trustee for civil recovery, in relation to any persons occupying the heritable property.]

[F822(8A)A recovery order made by a court in England and Wales or Northern Ireland may provide for payment under section 280 of reasonable legal expenses that a person has reasonably incurred, or may reasonably incur, in respect of—

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

(b)any related proceedings under this Part.

(8B)If regulations under section 286B apply to an item of expenditure, a sum in respect of the item is not payable under section 280 in pursuance of provision under subsection (8A) unless—

(a)the enforcement authority agrees to its payment, or

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

(9)This section is subject to sections 270 to 278.

Textual Amendments

F821S. 266(8ZA) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 29(3), 58(1)(6); S.I. 2018/78, reg. 3(l)

Commencement Information

I247S. 266 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

267 Functions of the trustee for civil recoveryU.K.

(1)The trustee for civil recovery is a person appointed by the court to give effect to a recovery order.

(2)The enforcement authority must nominate a suitably qualified person for appointment as the trustee.

(3)The functions of the trustee are—

(a)to secure the detention, custody or preservation of any property vested in him by the recovery order,

(b)in the case of property other than money, to realise the value of the property for the benefit of the enforcement authority, and

[F823(ba)if decree of removing and warrant for ejection is granted by the Court of Session under section 266(8ZA), to enforce the decree and warrant,]

(c)to perform any other functions conferred on him by virtue of this Chapter.

(4)In performing his functions, the trustee acts on behalf of the enforcement authority and must comply with any directions given by the authority.

(5)The trustee is to realise the value of property vested in him by the recovery order, so far as practicable, in the manner best calculated to maximise the amount payable to the enforcement authority.

(6)The trustee has the powers mentioned in Schedule 7.

(7)References in this section to a recovery order include an order under section 276 and references to property vested in the trustee by a recovery order include property vested in him in pursuance of an order under section 276.

Textual Amendments

F823S. 267(3)(ba) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 29(4), 58(1)(6); S.I. 2018/78, reg. 3(l)

Commencement Information

I248S. 267 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

268 Recording of recovery order (Scotland)U.K.

(1)The clerk of the court must immediately after the making of a recovery order which relates to heritable property situated in Scotland send a certified copy of it to the keeper of the register of inhibitions and adjudications for recording in that register.

(2)Recording under subsection (1) is to have the effect, as from the date of the recovery order, of an inhibition at the instance of the trustee for civil recovery against the person in whom the heritable property was vest prior to that date.

Commencement Information

I249S. 268 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

269 Rights of pre-emption, etc.U.K.

(1)A recovery order is to have effect in relation to any property despite any provision (of whatever nature) which would otherwise prevent, penalise or restrict the vesting of the property.

(2)A right of pre-emption, right of irritancy, right of return or other similar right does not operate or become exercisable as a result of the vesting of any property under a recovery order.

A right of return means any right under a provision for the return or reversion of property in specified circumstances.

(3)Where property is vested under a recovery order, any such right is to have effect as if the person in whom the property is vested were the same person in law as the person who held the property and as if no transfer of the property had taken place.

(4)References to rights in subsections (2) and (3) do not include any rights in respect of which the recovery order was made.

(5)This section applies in relation to the creation of interests, or the doing of anything else, by a recovery order as it applies in relation to the vesting of property.

Commencement Information

I250S. 269 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

[F824269ALeases and occupancy rights: ScotlandU.K.

(1)This section applies where, in making a recovery order, the Court of Session also grants decree of removing and warrant for ejection under section 266(8ZA) in relation to any persons occupying the heritable property.

(2)Any lease under which a person has the right to occupy the heritable property (or part of it) for residential or commercial purposes is terminated on the granting of decree of removing and warrant for ejection.

(3)Any other right to occupy the heritable property (or part of it) which subsists immediately before the granting of decree of removing and warrant for ejection is extinguished on the granting of the decree and warrant.

(4)Subsection (3) does not apply in relation to a right under a lease to occupy or use the property other than those mentioned in subsection (2).

(5)Where the heritable property is vested in the trustee for civil recovery under the recovery order, the following enactments do not apply in relation to the heritable property—

(a)sections 34 to 38A of the Sheriff Courts (Scotland) Act 1907 (removings, notice of termination of tenancy and notice of removal);

(b)the Tenancy of Shops (Scotland) Act 1949;

(c)the Matrimonial Homes (Family Protection) (Scotland) Act 1981;

(d)Parts 2 and 3 of the Rent (Scotland) Act 1984 (security of tenure and protection against harassment and unlawful eviction);

(e)sections 4 to 7 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (termination of certain leases);

(f)Part 2 of the Housing (Scotland) Act 1988 (rented accommodation: security of tenure etc.);

(g)Chapter 3 of Part 3 of the Civil Partnership Act 2004 (occupancy rights and tenancies);

(h)Part 5 of the Private Housing (Tenancies) (Scotland) Act 2016 (security of tenure, termination of tenancy and eviction).]

Textual Amendments

F824S. 269A inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 29(5), 58(1)(6); S.I. 2018/78, reg. 3(l)

270 Associated and joint propertyU.K.

(1)Sections 271 and 272 apply if the court makes a recovery order in respect of any recoverable property in a case within subsection (2) or (3).

(2)A case is within this subsection if—

(a)the property to which the proceedings relate includes property which is associated with the recoverable property and is specified or described in the claim form or (in Scotland) application, and

(b)if the associated property is not the respondent’s property, the claim form or application has been served on the person whose property it is or the court has dispensed with service.

(3)A case is within this subsection if—

(a)the recoverable property belongs to joint tenants, and

(b)one of the tenants is an excepted joint owner.

(4)An excepted joint owner is a person who obtained the property in circumstances in which it would not be recoverable as against him; and references to the excepted joint owner’s share of the recoverable property are to so much of the recoverable property as would have been his if the joint tenancy had been severed.

(5)Subsections (3) and (4) do not extend to Scotland.

Commencement Information

I251S. 270(4)(5) in force (30.12.2002) by S.I. 2002/3015, art. 2, Sch.

I252S. 270(1)(2)(3) in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

271 Agreements about associated and joint propertyU.K.

(1)Where—

(a)this section applies, and

(b)the enforcement authority (on the one hand) and the person who holds the associated property or who is the excepted joint owner (on the other) agree,

the recovery order may, instead of vesting the recoverable property in the trustee for civil recovery, require the person who holds the associated property or who is the excepted joint owner to make a payment to the trustee.

(2)A recovery order which makes any requirement under subsection (1) may, so far as required for giving effect to the agreement, include provision for vesting, creating or extinguishing any interest in property.

(3)The amount of the payment is to be the amount which the enforcement authority and that person agree represents—

(a)in a case within section 270(2), the value of the recoverable property,

(b)in a case within section 270(3), the value of the recoverable property less the value of the excepted joint owner’s share.

(4)But if—

(a)[F825a property freezing order, an interim receiving order, a prohibitory property order or an] interim administration order applied at any time to the associated property or joint tenancy, and

(b)the enforcement authority agrees that the person has suffered loss as a result of the [F826order mentioned in paragraph (a)],

the amount of the payment may be reduced by any amount the enforcement authority and that person agree is reasonable, having regard to that loss and to any other relevant circumstances.

(5)If there is more than one such item of associated property or excepted joint owner, the total amount to be paid to the trustee, and the part of that amount which is to be provided by each person who holds any such associated property or who is an excepted joint owner, is to be agreed between both (or all) of them and the enforcement authority.

(6)A recovery order which makes any requirement under subsection (1) must make provision for any recoverable property to cease to be recoverable.

Textual Amendments

Commencement Information

I253S. 271 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

272 Associated and joint property: default of agreementU.K.

(1)Where this section applies, the court may make the following provision if—

(a)there is no agreement under section 271, and

(b)the court thinks it just and equitable to do so.

(2)The recovery order may provide—

(a)for the associated property to vest in the trustee for civil recovery or (as the case may be) for the excepted joint owner’s interest to be extinguished, or

(b)in the case of an excepted joint owner, for the severance of his interest.

(3)A recovery order making any provision by virtue of subsection (2)(a) may provide—

(a)for the trustee to pay an amount to the person who holds the associated property or who is an excepted joint owner, or

(b)for the creation of interests in favour of that person, or the imposition of liabilities or conditions, in relation to the property vested in the trustee,

or for both.

(4)In making any provision in a recovery order by virtue of subsection (2) or (3), the court must have regard to—

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

(b)the enforcement authority’s interest in receiving the realised proceeds of the recoverable property.

(5)If—

(a)[F827a property freezing order, an interim receiving order, a prohibitory property order or an ] interim administration order applied at any time to the associated property or joint tenancy, and

(b)the court is satisfied that the person who holds the associated property or who is an excepted joint owner has suffered loss as a result of the [F828order mentioned in paragraph (a) ],

a recovery order making any provision by virtue of subsection (2) or (3) may require the enforcement authority to pay compensation to that person.

(6)The amount of compensation to be paid under subsection (5) is the amount the court thinks reasonable, having regard to the person’s loss and to any other relevant circumstances.

[F829(7)In subsection (5) the reference to the enforcement authority is, in the case of an enforcement authority in relation to England and Wales or Northern Ireland, a reference to the enforcement authority which obtained the property freezing order or interim receiving order concerned.]

Textual Amendments

Commencement Information

I254S. 272 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

273 Payments in respect of rights under pension schemesU.K.

(1)This section applies to recoverable property consisting of rights under a pension scheme.

(2)A recovery order in respect of the property must, instead of vesting the property in the trustee for civil recovery, require the trustees or managers of the pension scheme—

(a)to pay to the trustee for civil recovery within a prescribed period the amount determined by the trustees or managers to be equal to the value of the rights, and

(b)to give effect to any other provision made by virtue of this section and the two following sections in respect of the scheme.

This subsection is subject to sections 276 to 278.

(3)A recovery order made by virtue of subsection (2) overrides the provisions of the pension scheme to the extent that they conflict with the provisions of the order.

(4)A recovery order made by virtue of subsection (2) may provide for the recovery by the trustees or managers of the scheme (whether by deduction from any amount which they are required to pay to the trustee for civil recovery or otherwise) of costs incurred by them in—

(a)complying with the recovery order, or

(b)providing information, before the order was made, to the enforcement authority, [F830receiver appointed under section 245E,] [F831 PPO receiver, ] interim receiver or interim administrator.

(5)None of the following provisions applies to a court making a recovery order by virtue of subsection (2)—

(a)any provision of section 159 of the Pension Schemes Act 1993 (c. 48), section 155 of the Pension Schemes (Northern Ireland) Act 1993 (c. 49), section 91 of the Pensions Act 1995 (c. 26) or Article 89 of the Pensions (Northern Ireland) Order 1995 (S.I. 1995/3213 (N.I. 22)) (which prevent assignment and the making of orders that restrain a person from receiving anything which he is prevented from assigning),

(b)any provision of any enactment (whenever passed or made) corresponding to any of the provisions mentioned in paragraph (a),

(c)any provision of the pension scheme in question corresponding to any of those provisions.

Textual Amendments

F830Words in s. 273(4)(b) inserted (E.W.N.I.) (6.4.2008) by Serious Crime Act 2007 (c. 27), ss. 83(2), 94(1); S.I. 2008/755, art. 17(1)(h)

Commencement Information

I255S. 273 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

274 Consequential adjustment of liabilities under pension schemesU.K.

(1)A recovery order made by virtue of section 273(2) must require the trustees or managers of the pension scheme to make such reduction in the liabilities of the scheme as they think necessary in consequence of the payment made in pursuance of that subsection.

(2)Accordingly, the order must require the trustees or managers to provide for the liabilities of the pension scheme in respect of the respondent’s recoverable property to which section 273 applies to cease.

(3)So far as the trustees or managers are required by the recovery order to provide for the liabilities of the pension scheme in respect of the respondent’s recoverable property to which section 273 applies to cease, their powers include (in particular) power to reduce the amount of—

(a)any benefit or future benefit to which the respondent is or may be entitled under the scheme,

(b)any future benefit to which any other person may be entitled under the scheme in respect of that property.

Commencement Information

I256S. 274 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

275 Pension schemes: supplementaryU.K.

(1)Regulations may make provision as to the exercise by trustees or managers of their powers under sections 273 and 274, including provision about the calculation and verification of the value at any time of rights or liabilities.

(2)The power conferred by subsection (1) includes power to provide for any values to be calculated or verified—

(a)in a manner which, in the particular case, is approved by a prescribed person, or

(b)in accordance with guidance from time to time prepared by a prescribed person.

(3)Regulations means regulations made by the Secretary of State after consultation with the Scottish Ministers [F832or, in relation to Northern Ireland, regulations made by the Department of Justice] ; and prescribed means prescribed by regulations.

(4)A pension scheme means an occupational pension scheme or a personal pension scheme; and those expressions have the same meaning as in the Pension Schemes Act 1993 (c. 48) or, in relation to Northern Ireland, the Pension Schemes (Northern Ireland) Act 1993 (c. 49).

(5)In relation to an occupational pension scheme or a personal pension scheme, the trustees or managers means—

(a)in the case of a scheme established under a trust, the trustees,

(b)in any other case, the managers.

(6)References to a pension scheme include—

(a)a retirement annuity contract (within the meaning of Part 3 of the Welfare Reform and Pensions Act 1999 (c. 30) or, in relation to Northern Ireland, Part 4 of the Welfare Reform and Pensions (Northern Ireland) Order 1999),

(b)an annuity or insurance policy purchased, or transferred, for the purpose of giving effect to rights under an occupational pension scheme or a personal pension scheme,

(c)an annuity purchased, or entered into, for the purpose of discharging any liability in respect of a pension credit under section 29(1)(b) of the Welfare Reform and Pensions Act 1999 (c. 30) or, in relation to Northern Ireland, Article 26(1)(b) of the Welfare Reform and Pensions (Northern Ireland) Order 1999.

(7)References to the trustees or managers—

(a)in relation to a retirement annuity contract or other annuity, are to the provider of the annuity,

(b)in relation to an insurance policy, are to the insurer.

(8)Subsections (3) to (7) have effect for the purposes of this group of sections (that is, sections 273 and 274 and this section).

Textual Amendments

Commencement Information

I257S. 275 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

276 Consent ordersU.K.

(1)The court may make an order staying (in Scotland, sisting) any proceedings for a recovery order on terms agreed by the parties for the disposal of the proceedings if each person to whose property the proceedings, or the agreement, relates is a party both to the proceedings and the agreement.

(2)An order under subsection (1) may, as well as staying (or sisting) the proceedings on terms—

(a)make provision for any property which may be recoverable property to cease to be recoverable,

(b)make any further provision which the court thinks appropriate.

(3)Section 280 applies to property vested in the trustee for civil recovery, or money paid to him, in pursuance of the agreement as it applies to property vested in him by a recovery order or money paid under section 271.

Commencement Information

I258S. 276 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

277 Consent orders: pensionsU.K.

(1)This section applies where recoverable property to which proceedings under this Chapter relate includes rights under a pension scheme.

(2)An order made under section 276—

(a)may not stay (in Scotland, sist) the proceedings on terms that the rights are vested in any other person, but

(b)may include provision imposing the following requirement, if the trustees or managers of the scheme are parties to the agreement by virtue of which the order is made.

(3)The requirement is that the trustees or managers of the pension scheme—

(a)make a payment in accordance with the agreement, and

(b)give effect to any other provision made by virtue of this section in respect of the scheme.

(4)The trustees or managers of the pension scheme have power to enter into an agreement in respect of the proceedings on any terms on which an order made under section 276 may stay (in Scotland, sist) the proceedings.

(5)The following provisions apply in respect of an order under section 276, so far as it includes the requirement mentioned in subsection (3).

(6)The order overrides the provisions of the pension scheme to the extent that they conflict with the requirement.

(7)The order may provide for the recovery by the trustees or managers of the scheme (whether by deduction from any amount which they are required to pay in pursuance of the agreement or otherwise) of costs incurred by them in—

(a)complying with the order, or

(b)providing information, before the order was made, to the enforcement authority, [F833receiver appointed under section 245E,] [F834 PPO receiver, ] interim receiver or interim administrator.

(8)Sections 273(5) and 274 (read with section 275) apply as if the requirement were included in an order made by virtue of section 273(2).

(9)Section 275(4) to (7) has effect for the purposes of this section.

Textual Amendments

F833Words in s. 277(7)(b) inserted (E.W.N.I.) (6.4.2008) by Serious Crime Act 2007 (c. 27), ss. 83(2), 94(1); S.I. 2008/755, art. 17(1)(h)

Commencement Information

I259S. 277 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

278 Limit on recoveryU.K.

(1)This section applies if the enforcement authority seeks a recovery order—

(a)in respect of both property which is or represents property obtained through unlawful conduct and related property, or

(b)in respect of property which is or represents property obtained through unlawful conduct where such an order, or an order under section 276, has previously been made in respect of related property.

(2)For the purposes of this section—

(a)the original property means the property obtained through unlawful conduct,

(b)the original property, and any items of property which represent the original property, are to be treated as related to each other.

(3)The court is not to make a recovery order if it thinks that the enforcement authority’s right to recover the original property has been satisfied by a previous recovery order or order under section 276.

(4)Subject to subsection (3), the court may act under subsection (5) if it thinks that—

(a)a recovery order may be made in respect of two or more related items of recoverable property, but

(b)the making of a recovery order in respect of both or all of them is not required in order to satisfy the enforcement authority’s right to recover the original property.

(5)The court may in order to satisfy that right to the extent required make a recovery order in respect of—

(a)only some of the related items of property, or

(b)only a part of any of the related items of property,

or both.

(6)Where the court may make a recovery order in respect of any property, this section does not prevent the recovery of any profits which have accrued in respect of the property.

[F835(6A)If—

(a)recoverable property is forfeited in pursuance of a forfeiture notice under section 297A [F836or an account forfeiture notice under section 303Z9], and

(b)the enforcement authority subsequently seeks a recovery order in respect of related property,

the [F837notice] is to be treated for the purposes of this section as if it were a recovery order obtained by the enforcement authority in respect of the forfeited property.]

(7)If—

(a)an order is made under section 298 [F838, 303O [F839, 303R] [F840, 303Z14, 303Z41, 303Z45 or 303Z60]] for the forfeiture of recoverable property, and

(b)the enforcement authority subsequently seeks a recovery order in respect of related property,

the order under [F841that section] is to be treated for the purposes of this section as if it were a recovery order obtained by the enforcement authority in respect of the forfeited property.

[F842(7A)If—

(a)an order is made under section 303Q instead of an order being made under section 303O for the forfeiture of recoverable property, and

(b)the enforcement authority subsequently seeks a recovery order in respect of related property,

the order under section 303Q is to be treated for the purposes of this section as if it were a recovery order obtained by the enforcement authority in respect of the property that was the forfeitable property in relation to the order under section 303Q.]

[F843(7B)If—

(a)an order is made under section 303Z44 instead of an order being made under section 303Z41 for the forfeiture of recoverable property, and

(b)the enforcement authority subsequently seeks a recovery order in respect of related property,

the order under section 303Z44 is to be treated for the purposes of this section as if it were a recovery order obtained by the enforcement authority in respect of the property that was the forfeitable property in relation to the order under section 303Z44.]

(8)If—

(a)in pursuance of a judgment in civil proceedings (whether in the United Kingdom or elsewhere), the claimant has obtained property from the defendant (“the judgment property”),

(b)the claim was based on the defendant’s having obtained the judgment property or related property through unlawful conduct, and

(c)the enforcement authority subsequently seeks a recovery order in respect of property which is related to the judgment property,

the judgment is to be treated for the purposes of this section as if it were a recovery order obtained by the enforcement authority in respect of the judgment property.

In relation to Scotland, “claimant” and “defendant” are to be read as “pursuer” and “defender”.

(9)If—

(a)property has been taken into account in deciding the amount of a person’s benefit from criminal conduct for the purpose of making a confiscation order, and

(b)the enforcement authority subsequently seeks a recovery order in respect of related property,

the confiscation order is to be treated for the purposes of this section as if it were a recovery order obtained by the enforcement authority in respect of the property referred to in paragraph (a).

(10)In subsection (9), a confiscation order means—

(a)an order under section 6, 92 or 156, or

(b)an order under a corresponding provision of an enactment mentioned in section 8(7)(a) to (g),

and, in relation to an order mentioned in paragraph (b), the reference to the amount of a person’s benefit from criminal conduct is to be read as a reference to the corresponding amount under the enactment in question.

Textual Amendments

F836Words in s. 278(6A)(a) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. for specified purposes, 16.4.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 30(2)(a); S.I. 2018/78, reg. 5(3)(a)(i)(ii); S.I. 2021/724, reg. 4(g)

F837Words in s. 278(6A) substituted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. for specified purposes, 16.4.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 30(2)(b); S.I. 2018/78, reg. 5(3)(a)(i)(ii); S.I. 2021/724, reg. 4(g)

F838Words in s. 278(7)(a) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. for specified purposes, 16.4.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 30(3)(a); S.I. 2018/78, reg. 5(3)(a)(i)(ii); S.I. 2021/724, reg. 4(g)

F840Words in s. 278(7)(a) substituted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 6(2)(a); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

F841Words in s. 278(7) substituted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. for specified purposes, 16.4.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 30(3)(b); S.I. 2018/78, reg. 5(3)(a)(i)(ii); S.I. 2021/724, reg. 4(g)

F842S. 278(7A) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. for specified purposes, 16.4.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 30(4); S.I. 2018/78, reg. 5(3)(a)(i)(ii); S.I. 2021/724, reg. 4(g)

F843S. 278(7B) inserted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 6(2)(b); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

Commencement Information

I260S. 278 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

279 Section 278: supplementaryU.K.

(1)Subsections (2) and (3) give examples of the satisfaction of the enforcement authority’s right to recover the original property.

(2)If—

(a)there is a disposal, other than a part disposal, of the original property, and

(b)other property (the representative property) is obtained in its place,

the enforcement authority’s right to recover the original property is satisfied by the making of a recovery order in respect of either the original property or the representative property.

(3)If—

(a)there is a part disposal of the original property, and

(b)other property (the representative property) is obtained in place of the property disposed of,

the enforcement authority’s right to recover the original property is satisfied by the making of a recovery order in respect of the remainder of the original property together with either the representative property or the property disposed of.

(4)In this section—

(a)a part disposal means a disposal to which section 314(1) applies,

(b)the original property has the same meaning as in section 278.

Commencement Information

I261S. 279 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

280 Applying realised proceedsU.K.

(1)[F844Subsection (2) applies to sums which are in the hands of the trustee for civil recovery if they are]—

(a)sums which represent the realised proceeds of property which was vested in the trustee for civil recovery by a recovery order or which he obtained in pursuance of a recovery order,

(b)sums vested in the trustee by a recovery order or obtained by him in pursuance of a recovery order.

(2)The trustee is to make out of the sums—

(a)first, any payment required to be made by him by virtue of section 272,

[F845(aa)next, any payment of legal expenses which, after giving effect to section 266(8B), are payable under this subsection in pursuance of provision under section 266(8A) contained in the recovery order,]

(b)[F846then], any payment of expenses incurred by a person acting as an insolvency practitioner which are payable under this subsection by virtue of section 432(10),

and any sum which remains is to be paid to the enforcement authority.

[F847(3)The [F848enforcement authority (unless it is the Scottish Ministers)] may apply a sum received by [F849it] under subsection (2) in making payment of the remuneration and expenses of—

(a)the trustee, or

(b)any interim receiver appointed in, or in anticipation of, the proceedings for the recovery order.

(4)Subsection (3)(a) does not apply in relation to the remuneration of the trustee if the trustee is a member of the staff of the [F850enforcement authority concerned [F851(but it does apply in relation to such remuneration if the trustee is a person providing services under arrangements made by that enforcement authority)]].]

Textual Amendments

F844Words in s. 280(1) substituted (E.W.S.) (retrospectively) by Crime and Courts Act 2013 (c. 22), ss. 48(7), 61(11)(d), Sch. 18 para. 5 (with s. 48(8), Sch. 25); this amendment extended to N.I. (20.3.2015) by The Crime and Courts Act 2013 (National Crime Agency and Proceeds of Crime) (Northern Ireland) Order 2015 (S.I. 2015/798), arts. 1(2), 7(a)

Commencement Information

I262S. 280 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

Exemptions etc.U.K.

281 Victims of theft, etc.U.K.

(1)In proceedings for a recovery order, a person who claims that any property alleged to be recoverable property, or any part of the property, belongs to him may apply for a declaration under this section.

(2)If the applicant appears to the court to meet the following condition, the court may make a declaration to that effect.

(3)The condition is that—

(a)the person was deprived of the property he claims, or of property which it represents, by unlawful conduct,

(b)the property he was deprived of was not recoverable property immediately before he was deprived of it, and

(c)the property he claims belongs to him.

(4)Property to which a declaration under this section applies is not recoverable property.

Commencement Information

I263S. 281 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

282 Other exemptionsU.K.

(1)Proceedings for a recovery order may not be taken against any person in circumstances of a prescribed description; and the circumstances may relate to the person himself or to the property or to any other matter.

In this subsection, prescribed means prescribed by an order made by the Secretary of State after consultation with the Scottish Ministers [F852or, in relation to Northern Ireland, prescribed by an order made by the Department of Justice].

(2)Proceedings for a recovery order may not be taken in respect of cash found at any place in the United Kingdom unless the proceedings are also taken in respect of property other than cash which is property of the same person.

(3)Proceedings for a recovery order may not be taken against the [F853Financial Conduct Authority or the Prudential Regulation Authority] in respect of any recoverable property held by [F854it].

(4)Proceedings for a recovery order may not be taken in respect of any property which is subject to any of the following charges—

(a)a collateral security charge, within the meaning of the Financial Markets and Insolvency (Settlement Finality) Regulations 1999 (S.I. 1999/2979),

(b)a market charge, within the meaning of Part 7 of the Companies Act 1989 (c. 40),

(c)a money market charge, within the meaning of the Financial Markets and Insolvency (Money Market) Regulations 1995 (S.I. 1995/2049),

(d)a system charge, within the meaning of the Financial Markets and Insolvency Regulations 1996 (S.I. 1996/1469) or the Financial Markets and Insolvency Regulations (Northern Ireland) 1996 (S.R. 1996/252).

(5)Proceedings for a recovery order may not be taken against any person in respect of any recoverable property which he holds by reason of his acting, or having acted, as an insolvency practitioner.

Acting as an insolvency practitioner has the same meaning as in section 433.

Textual Amendments

Commencement Information

I264S. 282 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

[F855Scope of powersE+W+S

Textual Amendments

282AScope of powersU.K.

(1)An order under this Chapter may be made by the High Court F856... or the Court of Session—

(a)in respect of property wherever situated, and

(b)in respect of a person wherever domiciled, resident or present,

subject to subsection (2).

(2)Such an order may not be made by the High Court F857... or the Court of Session in respect of—

(a)property that is outside the United Kingdom, or

(b)property that is in the United Kingdom but outside the relevant part of the United Kingdom,

unless there is or has been a connection between the case and the relevant part of the United Kingdom.

(3)The circumstances in which there is or has been such a connection include those described in Schedule 7A.

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

(a)in relation to an order made by the High Court in England and Wales, England and Wales, F858...

(b)in relation to an order made by the Court of Session, Scotland.][F859, and

(c)in relation to an order made by the High Court in Northern Ireland, Northern Ireland.]

Textual Amendments

Modifications etc. (not altering text)

C63S. 282A: power to modify conferred (25.4.2013) by Crime and Courts Act 2013 (c. 22), s. 61(11)(f), Sch. 25 para. 4(2)(a)

[F860Enforcement outside the United KingdomU.K.

Textual Amendments

F860Ss. 282B-282F and cross-heading inserted (retrospectively) by Crime and Courts Act 2013 (c. 22), ss. 48(7), 61(11)(d), Sch. 18 para. 6 (with s. 48(8), Sch. 25); this insertion extended to N.I. (20.3.2015) by The Crime and Courts Act 2013 (National Crime Agency and Proceeds of Crime) (Northern Ireland) Order 2015 (S.I. 2015/798), arts. 1(2), 7(a)

282BEnforcement abroad before recovery order: enforcement authorityU.K.

(1)This section applies if—

(a)the property freezing conditions are met in relation to property,

(b)the property is not property to which a recovery order applies, and

(c)an enforcement authority F861... believes that the property is in a country outside the United Kingdom (the receiving country).

(2)The property freezing conditions are—

(a)in England and Wales [F862and Northern Ireland] , the conditions in section 245A(5) and (6), and

(b)in Scotland, the conditions in section 255A(5) and (6),

and, for the purposes of this subsection, the references in those provisions to property to which the application for the order relates are to be read as references to the property mentioned in subsection (1)(a).

(3)The enforcement authority may send a request for assistance in relation to the property to the Secretary of State with a view to it being forwarded under this section.

(4)The Secretary of State may forward the request for assistance to the government of the receiving country.

(5)A request for assistance under this section is a request to the government of the receiving country—

(a)to secure that any person is prohibited from dealing with the property;

(b)for assistance in connection with the management of the property, including with securing its detention, custody or preservation.

Textual Amendments

282CEnforcement abroad before recovery order: receiver or administratorU.K.

(1)This section applies if—

(a)a property freezing order F863... has effect in relation to property, and

(b)the receiver appointed under section 245E in respect of the property believes that it is in a country outside the United Kingdom (the receiving country).

(2)This section also applies if—

(a)an interim receiving order F864... or an interim administration order has effect in relation to property, and

(b)the interim receiver or interim administrator believes that the property is in a country outside the United Kingdom (the receiving country).

(3)The receiver or administrator may send a request for assistance in relation to the property to the Secretary of State with a view to it being forwarded under this section.

(4)The Secretary of State must forward the request for assistance to the government of the receiving country.

(5)A request for assistance under this section is a request to the government of the receiving country—

(a)to secure that any person is prohibited from dealing with the property;

(b)for assistance in connection with the management of the property, including with securing its detention, custody or preservation.

Textual Amendments

[F865282CAEnforcement abroad before recovery order: PPO receiverU.K.

(1)This section applies if—

(a)a prohibitory property order made by the Court of Session has effect in relation to property, and

(b)the PPO receiver appointed under section 255G in respect of the property believes that it is in a country outside the United Kingdom (the “receiving country”).

(2)The PPO receiver may send a request for assistance in relation to the property to the Secretary of State with a view to it being forwarded under this section.

(3)The Secretary of State must forward the request for assistance to the government of the receiving country.

(4)A request for assistance under this section is a request to the government of the receiving country—

(a)to secure that any person is prohibited from dealing with the property,

(b)for assistance in connection with the management of the property, including with securing its detention, custody or preservation.]

Textual Amendments

282DEvidence overseas: interim receiver or interim administratorU.K.

(1)This section applies if—

(a)an interim receiving order F866... or an interim administration order has effect in relation to property, and

(b)the order requires the interim receiver or interim administrator to take steps to establish a matter described in section 247(2)(a) or (b) or 257(2)(a) or (b).

(2)The interim receiver or interim administrator may request assistance under this section if the interim receiver or interim administrator thinks that there is relevant evidence in a country outside the United Kingdom.

(3)A judge of the High Court F867... may request assistance under this section if—

(a)an application is made by the interim receiver or by a person subject to investigation by the interim receiver, and

(b)the judge thinks that there is relevant evidence in a country outside the United Kingdom.

(4)A judge of the Court of Session may request assistance under this section if—

(a)an application is made by the interim administrator or by a person subject to investigation by the interim administrator, and

(b)the judge thinks that there is relevant evidence in a country outside the United Kingdom.

(5)The assistance that may be requested under this section is assistance in obtaining outside the United Kingdom relevant evidence specified in the request.

(6)Relevant evidence is—

(a)in relation to an application or request made for the purposes of an investigation by an interim receiver, evidence as to a matter described in section 247(2)(a) or (b);

(b)in relation to an application or request made for the purposes of an investigation by an interim administrator, evidence as to a matter described in section 257(2)(a) or (b).

(7)A request for assistance under this section may be sent—

(a)to a court or tribunal which is specified in the request and which exercises jurisdiction in the place where the evidence is to be obtained,

(b)to the government of the country concerned, or

(c)to an authority recognised by the government of the country concerned as the appropriate authority for receiving requests for assistance of that kind.

(8)Alternatively, a request for assistance under this section may be sent to the Secretary of State with a view to it being forwarded to a court, tribunal, government or authority mentioned in subsection (7).

(9)The Secretary of State must forward the request for assistance to the court, tribunal, government or authority.

(10)In a case of urgency, a request for assistance under this section may be sent to—

(a)the International Criminal Police Organisation, F868...

F868(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

for forwarding to the court, tribunal, government or authority mentioned in subsection (7).

(11)Rules of court may make provision as to the practice and procedure to be followed in connection with proceedings relating to requests for assistance made by a judge under this section.

(12)“Evidence” includes documents, information in any other form and material.

Textual Amendments

282EEvidence overseas: restrictions on useU.K.

(1)This section applies to evidence obtained by means of a request for assistance under section 282D.

(2)The evidence must not be used for any purpose other than—

(a)for the purposes of carrying out the functions of the interim receiver or interim administrator, or

(b)for the purposes of proceedings under this Chapter of this Part in respect of property described in subsection (3) or any proceedings arising out of such proceedings.

(3)That property is—

(a)the property that is the subject of the interim receiving order or interim administration order, or

(b)other property that is recoverable property in respect of the same unlawful conduct.

(4)Subsection (2) does not apply if the court, tribunal, government or authority to whom the request for assistance was sent consents to the use.

(5)In Scotland, the evidence may be received in evidence without being sworn to by anyone, so far as that may be done without unfairness to any party.

282FEnforcement abroad: after recovery orderU.K.

(1)This section applies if—

(a)a recovery order F869... has effect in relation to property, and

(b)the enforcement authority or the trustee for civil recovery believes that the property is in a country outside the United Kingdom (the receiving country).

(2)The enforcement authority or trustee for civil recovery may send a request for assistance in relation to the property to the Secretary of State with a view to it being forwarded under this section.

(3)The Secretary of State may forward a request for assistance from the enforcement authority to the government of the receiving country.

(4)The Secretary of State must forward a request for assistance from the trustee for civil recovery to the government of the receiving country.

(5)A request for assistance is a request to the government of the receiving country for assistance in connection with the management and disposal of the property and includes a request—

(a)to secure the detention, custody or preservation of the property;

(b)in the case of money, to secure that it is applied in accordance with the law of the receiving country;

(c)in the case of property other than money, to secure that the property is realised and the proceeds are applied in accordance with the law of the receiving country.

(6)A certificate purporting to be issued by or on behalf of the government of the receiving country is admissible as evidence of the facts it states if it states—

(a)that property has been realised in pursuance of a request under this section,

(b)the date of realisation, and

(c)the proceeds of realisation.]

Textual Amendments

MiscellaneousU.K.

283 CompensationU.K.

(1)If, in the case of any property to which [F870a property freezing order, an interim receiving order, a prohibitory property order or an] interim administration order has at any time applied, the court does not in the course of the proceedings decide that the property is recoverable property or associated property, the person whose property it is may make an application to the court for compensation.

(2)Subsection (1) does not apply if the court—

(a)has made a declaration in respect of the property by virtue of section 281, or

(b)makes an order under section 276.

(3)If the court has made a decision by reason of which no recovery order could be made in respect of the property, the application for compensation must be made within the period of three months beginning—

(a)in relation to a decision of the High Court in England and Wales, with the date of the decision or, if any application is made for leave to appeal, with the date on which the application is withdrawn or refused or (if the application is granted) on which any proceedings on appeal are finally concluded,

(b)in relation to a decision of the Court of Session or of the High Court in Northern Ireland, with the date of the decision or, if there is an appeal against the decision, with the date on which any proceedings on appeal are finally concluded.

(4)If, in England and Wales or Northern Ireland, the proceedings in respect of the property have been discontinued, the application for compensation must be made within the period of three months beginning with the discontinuance.

(5)If the court is satisfied that the applicant has suffered loss as a result of the [F871order mentioned in subsection (1) ], it may require the enforcement authority to pay compensation to him.

(6)If, but for section 269(2), any right mentioned there would have operated in favour of, or become exercisable by, any person, he may make an application to the court for compensation.

(7)The application for compensation under subsection (6) must be made within the period of three months beginning with the vesting referred to in section 269(2).

(8)If the court is satisfied that, in consequence of the operation of section 269, the right in question cannot subsequently operate in favour of the applicant or (as the case may be) become exercisable by him, it may require the enforcement authority to pay compensation to him.

(9)The amount of compensation to be paid under this section is the amount the court thinks reasonable, having regard to the loss suffered and any other relevant circumstances.

[F872(10)In the case of an enforcement authority in relation to England and Wales or Northern Ireland—

(a)the reference in subsection (5) to the enforcement authority is a reference to the enforcement authority which obtained the property freezing order or interim receiving order concerned, and

(b)the reference in subsection (8) to the enforcement authority is a reference to the enforcement authority which obtained the recovery order concerned.]

Textual Amendments

Commencement Information

I265S. 283 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

284 Payment of interim administrator or trustee (Scotland)U.K.

[F873(1)]Any fees or expenses incurred by an interim administrator, or a trustee for civil recovery appointed by the Court of Session, in the exercise of his functions are to be reimbursed by the Scottish Ministers as soon as is practicable after they have been incurred.

[F874(2)The Scottish Ministers may apply a sum received by them under section 280(2) in making payment of such fees or expenses.

(3)Subsection (2) does not apply in relation to the fees of a trustee for civil recovery if the trustee is a member of their staff.]

Textual Amendments

Commencement Information

I266S. 284 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

285 Effect on diligence of recovery order (Scotland)U.K.

(1)An arrestment or [F875attachment] of any recoverable property executed on or after the appointment of the trustee for civil recovery is ineffectual in a question with the trustee.

(2)Any recoverable property so arrested or [F876attached.] , or (if the property has been sold) the proceeds of sale, must be handed over to the trustee for civil recovery.

(3)A poinding of the ground in respect of recoverable property on or after such an appointment is ineffectual in a question with the trustee for civil recovery except for the interest mentioned in subsection (4).

(4)That interest is—

(a)interest on the debt of a secured creditor for the current half yearly term, and

(b)arrears of interest on that debt for one year immediately before the commencement of that term.

(5)On and after such appointment no other person may raise or insist in an adjudication against recoverable property or be confirmed as an executor-creditor on that property.

(6)An inhibition on recoverable property shall cease to have effect in relation to any heritable property comprised in the recoverable property on such appointment.

(7)[F877The provisions of this section apply in relation to—

(a)an action of maills and duties, and

(b)an action for sequestration of rent,

as they apply in relation to an arrestment or [F878attachment] .]

Textual Amendments

F875Words in s. 285(1) substituted (30.12.2002) by Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17), ss. 61, 64(2), Sch. 3 Pt. 1 {para. 29(1)(a)} (with s. 59)

F876Words in s. 285(2) substituted (30.12.2002) by Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17), ss. 61, 64(2), Sch. 3 Pt. 1 {para. 29(1)(b)} (with s. 59)

F877S. 285(7) repealed (S.) (1.4.2008 for specified purposes) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), s. 227(3), sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), sch. 2 (with arts. 4-6 9 10 15)

F878Words in s. 285(7)(b) substituted (30.12.2002) by Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17), ss. 61, 64(2), Sch. 3 Pt. 1 {para 29(1)(a)} (with s. 59)

Commencement Information

I267S. 285 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

F879286 Scope of powers (Scotland)U.K.

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

Textual Amendments

F879S. 286 omitted (retrospectively) by virtue of Crime and Courts Act 2013 (c. 22), ss. 48(4)(7), 61(11)(c) (with s. 48(8), Sch. 25)

[F880286ALegal expenses excluded from freezing: required conditionsU.K.

(1)The Lord Chancellor may by regulations specify the required conditions for the purposes of section 245C(5) or 252(4).

(2)A required condition may (in particular)—

(a)restrict who may receive sums released in pursuance of the exclusion (by, for example, requiring released sums to be paid to professional legal advisers), or

(b)be made for the purpose of controlling the amount of any sum released in pursuance of the exclusion in respect of an item of expenditure.

(3)A required condition made for the purpose mentioned in subsection (2)(b) may (for example)—

(a)provide for sums to be released only with the agreement of the enforcement authority;

(b)provide for a sum to be released in respect of an item of expenditure only if the court has assessed the amount allowed by regulations under section 286B in respect of that item and the sum is released for payment of the assessed amount;

(c)provide for a sum to be released in respect of an item of expenditure only if—

(i)the enforcement authority agrees to its release, or

(ii)the court has assessed the amount allowed by regulations under section 286B in respect of that item and the sum is released for payment of the assessed amount.

(4)Before making regulations under this section, the Lord Chancellor must consult such persons as he considers appropriate.

Textual Amendments

286BLegal expenses: regulations for purposes of section 266(8B) or 286A(3)U.K.

(1)The Lord Chancellor may by regulations—

(a)make provision for the purposes of section 266(8B);

(b)make provision for the purposes of required conditions that make provision of the kind mentioned in section 286A(3)(b) or (c).

(2)Regulations under this section may (in particular)—

(a)limit the amount of remuneration allowable to representatives for a unit of time worked;

(b)limit the total amount of remuneration allowable to representatives for work done in connection with proceedings or a step in proceedings;

(c)limit the amount allowable in respect of an item of expense incurred by a representative or incurred, otherwise than in respect of the remuneration of a representative, by a party to proceedings.

(3)Before making regulations under this section, the Lord Chancellor must consult such persons as he considers appropriate.]

Textual Amendments

287 Financial thresholdU.K.

(1)At any time when an order specifying an amount for the purposes of this section has effect, the enforcement authority may not start proceedings for a recovery order unless the authority reasonably believes that the aggregate value of the recoverable property which the authority wishes to be subject to a recovery order is not less than the specified amount.

(2)The power to make an order under subsection (1) is exercisable by the Secretary of State after consultation with the Scottish Ministers [F881or, in relation to Northern Ireland, exercisable by the Department of Justice] .

(3)If the authority applies for [F882a property freezing order, an interim receiving order, a prohibitory property order or an] interim administration order before starting the proceedings, subsection (1) applies to the application instead of to the start of the proceedings.

(4)This section does not affect the continuation of proceedings for a recovery order which have been properly started or the making or continuing effect of [F883a property freezing order, an interim receiving order, a prohibitory property order or an] interim administration order which has been properly applied for.

Textual Amendments

Commencement Information

I268S. 287 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

288 LimitationU.K.

(1)After section 27 of the Limitation Act 1980 (c. 58) there is inserted—

“27A Actions for recovery of property obtained through unlawful conduct etc.

(1)None of the time limits given in the preceding provisions of this Act applies to any proceedings under Chapter 2 of Part 5 of the Proceeds of Crime Act 2002 (civil recovery of proceeds of unlawful conduct).

(2)Proceedings under that Chapter for a recovery order in respect of any recoverable property shall not be brought after the expiration of the period of twelve years from the date on which the Director’s cause of action accrued.

(3)Proceedings under that Chapter are brought when—

(a)a claim form is issued, or

(b)an application is made for an interim receiving order,

whichever is the earlier.

(4)The Director’s cause of action accrues in respect of any recoverable property—

(a)in the case of proceedings for a recovery order in respect of property obtained through unlawful conduct, when the property is so obtained,

(b)in the case of proceedings for a recovery order in respect of any other recoverable property, when the property obtained through unlawful conduct which it represents is so obtained.

(5)If—

(a)a person would (but for the preceding provisions of this Act) have a cause of action in respect of the conversion of a chattel, and

(b)proceedings are started under that Chapter for a recovery order in respect of the chattel,

section 3(2) of this Act does not prevent his asserting on an application under section 281 of that Act that the property belongs to him, or the court making a declaration in his favour under that section.

(6)If the court makes such a declaration, his title to the chattel is to be treated as not having been extinguished by section 3(2) of this Act.

(7)Expressions used in this section and Part 5 of that Act have the same meaning in this section as in that Part.”

(2)After section 19A of the Prescription and Limitation (Scotland) Act 1973 (c. 52) there is inserted—

“19B Actions for recovery of property obtained through unlawful conduct etc.

(1)None of the time limits given in the preceding provisions of this Act applies to any proceedings under Chapter 2 of Part 5 of the Proceeds of Crime Act 2002 (civil recovery of proceeds of unlawful conduct).

(2)Proceedings under that Chapter for a recovery order in respect of any recoverable property shall not be commenced after the expiration of the period of twelve years from the date on which the Scottish Ministers’ right of action accrued.

(3)Proceedings under that Chapter are commenced when—

(a)the proceedings are served, or

(b)an application is made for an interim administration order,

whichever is the earlier.

(4)The Scottish Ministers’ right of action accrues in respect of any recoverable property—

(a)in the case of proceedings for a recovery order in respect of property obtained through unlawful conduct, when the property is so obtained,

(b)in the case of proceedings for a recovery order in respect of any other recoverable property, when the property obtained through unlawful conduct which it represents is so obtained.

(5)Expressions used in this section and Part 5 of that Act have the same meaning in this section as in that Part.”

(3)After Article 72 of the Limitation (Northern Ireland) Order 1989 (SI 1989/1339 (N.I. 11)) there is inserted—

“72A Actions for recovery of property obtained through unlawful conduct etc.

(1)None of the time limits fixed by Parts II and III applies to any proceedings under Chapter 2 of Part 5 of the Proceeds of Crime Act 2002 (civil recovery of proceeds of unlawful conduct).

(2)Proceedings under that Chapter for a recovery order in respect of any recoverable property shall not be brought after the expiration of the period of twelve years from the date on which the Director’s cause of action accrued.

(3)Proceedings under that Chapter are brought when—

(a)a claim form is issued, or

(b)an application is made for an interim receiving order,

whichever is the earlier.

(4)The Director’s cause of action accrues in respect of any recoverable property—

(a)in the case of proceedings for a recovery order in respect of property obtained through unlawful conduct, when the property is so obtained,

(b)in the case of proceedings for a recovery order in respect of any other recoverable property, when the property obtained through unlawful conduct which it represents is so obtained.

(5)If—

(a)a person would (but for a time limit fixed by this Order) have a cause of action in respect of the conversion of a chattel, and

(b)proceedings are started under that Chapter for a recovery order in respect of the chattel,

Article 17(2) does not prevent his asserting on an application under section 281 of that Act that the property belongs to him, or the court making a declaration in his favour under that section.

(6)If the court makes such a declaration, his title to the chattel is to be treated as not having been extinguished by Article 17(2).

(7)Expressions used in this Article and Part 5 of that Act have the same meaning in this Article as in that Part.”

Commencement Information

I269S. 288 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

Chapter 3U.K.Recovery of cash in summary proceedings

Modifications etc. (not altering text)

C64Pt. 5 Ch. 3 applied (1.4.2010) by UK Borders Act 2007 (c. 30), ss. 24(1), 59(2); S.I. 2010/606, art. 2

C66Pt. 5 Ch. 3 applied (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by 2007 c. 30, s. 24(1) (as substituted by Criminal Finances Act 2017 (c. 22), ss. 21(3), 58(1)(6); S.I. 2018/78, reg. 3(f); S.I. 2021/724, reg. 2(1)(i))

SearchesU.K.

289 SearchesU.K.

(1)If [F884an officer of Revenue and Customs] or constable [F885, an SFO officer] who [F886, a constable or an accredited financial investigator] is lawfully on any premises [F887 and] has reasonable grounds for suspecting that there is on the premises cash—

(a)which is recoverable property or is intended by any person for use in unlawful conduct, and

(b)the amount of which is not less than the minimum amount,

he may search for the cash there.

[F888(1A)The powers specified in subsection (1D) are exercisable if—

(a)[F889an officer of Revenue and Customs], a constable [F890, an SFO officer] or an accredited financial investigator has reasonable grounds for suspecting that there is cash falling within subsection (1E) in a vehicle, and

(b)it appears to the officer [F891of Revenue and Customs], constable [F892, SFO officer] or investigator that the vehicle is under the control of a person (the suspect) who is in or in the vicinity of the vehicle.

(1B)The powers are exercisable only if the vehicle is—

(a)in any place to which, at the time of the proposed exercise of the powers, the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission, or

(b)in any other place to which at that time people have ready access but which is not a dwelling.

(1C)But if the vehicle is in a garden or yard or other land occupied with and used for the purposes of a dwelling, the [F893officer of Revenue and Customs], constable [F894, SFO officer] [F895of Revenue and Customs] or accredited financial investigator may exercise the powers under subsection (1D) only if the officer, constable [F894, SFO officer] or investigator has reasonable grounds for believing—

(a)that the suspect does not reside in the dwelling, and

(b)that the vehicle is not in the place in question with the express or implied permission of a person who resides in the dwelling.

(1D)The [F893officer of Revenue and Customs], constable [F896, SFO officer] [F897of Revenue and Customs] or accredited financial investigator may, so far as the officer, constable [F896, SFO officer] or investigator thinks it necessary or expedient, require the suspect to—

(a)permit entry to the vehicle,

(b)permit a search of the vehicle.

(1E)Cash falls within this subsection if—

(a)it is recoverable property or is intended by any person for use in unlawful conduct, and

(b)the amount of it is not less than the minimum amount.]

(2)If [F898an officer of Revenue and Customs] [F899, a constable [F900, an SFO officer] or an accredited financial investigator] has reasonable grounds for suspecting that a person (the suspect) is carrying cash—

(a)which is recoverable property or is intended by any person for use in unlawful conduct, and

(b)the amount of which is not less than the minimum amount,

he may exercise the following powers.

(3)The officer [F901, constable [F902, SFO officer] or accredited financial investigator] may, so far as he thinks it necessary or expedient, require the suspect—

(a)to permit a search of any article he has with him,

(b)to permit a search of his person.

(4)An officer [F903, constable [F904, SFO officer] or accredited financial investigator] [F905may—

(a)in exercising powers by virtue of subsection (1D), detain the vehicle for so long as is necessary for their exercise,

(b)in exercising powers by virtue of subsection (3)(b), detain the suspect for so long as is necessary for their exercise.]

(5)The powers conferred by this section—

(a)are exercisable only so far as reasonably required for the purpose of finding cash,

(b)are exercisable by [F906an officer of Revenue and Customs] only if he has reasonable grounds for suspecting that the unlawful conduct in question relates to an assigned matter (within the meaning of the Customs and Excise Management Act 1979 (c. 2)).

F907(ba). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)are exercisable by an [F908SFO officer or] accredited financial investigator only in relation to [F909the following—

(i)premises in England, Wales or Northern Ireland (in the case of subsection (1)),

(ii)vehicles and suspects in England, Wales or Northern Ireland (in the case of subsections (1D) and (4)(a)),

(iii)suspects in England, Wales or Northern Ireland (in the case of subsections (2), (3) and (4)(b)).]

F910(5A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)Cash means—

(a)notes and coins in any currency,

(b)postal orders,

(c)cheques of any kind, including travellers’ cheques,

(d)bankers’ drafts,

(e)bearer bonds and bearer shares,

[F911(f)gaming vouchers,

(g)fixed-value casino tokens,

(h)betting receipts]

found at any place in the United Kingdom.

(7)Cash also includes any kind of monetary instrument which is found at any place in the United Kingdom, if the instrument is specified by the Secretary of State by an order made after consultation with the Scottish Ministers [F912or, in relation to Northern Ireland, is specified by the Department of Justice by an order].

[F913(7A)For the purposes of subsection (6)—

(a)“gaming voucher” means a voucher in physical form issued by a gaming machine that represents a right to be paid the amount stated on it;

(b)“fixed-value casino token” means a casino token that represents a right to be paid the amount stated on it;

(c)“betting receipt” means a receipt in physical form that represents a right to be paid an amount in respect of a bet placed with a person holding a betting licence.

(7B)In subsection (7A)—

  • “bet”—

    (a)

    in relation to England and Wales and Scotland, has the same meaning as in section 9(1) of the Gambling Act 2005;

    (b)

    in relation to Northern Ireland, has the same meaning as in the Betting, Gaming, Lotteries and Amusements (Northern Ireland) Order 1985 (S.I. 1985/1204 (N.I. 11)) (see Article 2 of that Order);

  • “betting licence”—

    (a)

    in relation to England and Wales and Scotland, means a general betting operating licence issued under Part 5 of the Gambling Act 2005;

    (b)

    in relation to Northern Ireland, means a bookmaker's licence as defined in Article 2 of the Betting, Gaming, Lotteries and Amusements (Northern Ireland) Order 1985;

  • “gaming machine”—

    (a)

    in relation to England and Wales and Scotland, has the same meaning as in the Gambling Act 2005 (see section 235 of that Act);

    (b)

    in relation to Northern Ireland, has the same meaning as in the Betting, Gaming, Lotteries and Amusements (Northern Ireland) Order 1985 (see Article 2 of that Order).

(7C)In the application of subsection (7A) to Northern Ireland references to a right to be paid an amount are to be read as references to the right that would exist but for Article 170 of the Betting, Gaming, Lotteries and Amusements (Northern Ireland) Order 1985 (gaming and wagering contracts void).]

(8)This section does not require a person to submit to an intimate search or strip search (within the meaning of section 164 of the Customs and Excise Management Act 1979 (c. 2)).

Textual Amendments

F884Words in s. 289(1) substituted (17.7.2013) by Finance Act 2013 (c. 29), Sch. 48 para. 2(2)

F885Words in s. 289(1) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 11(2); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)

F888S. 289(1A)-(1E) inserted (1.6.2015 for E.W.S., 1.3.2016 in so far as not already in force) by Policing and Crime Act 2009 (c. 26), ss. 63(2), 116(1); S.I. 2015/983, art. 2(2)(b); S.I. 2016/147, art. 3(d)

F889Words in s. 289(1A)(a) substituted (17.7.2013) by Finance Act 2013 (c. 29), Sch. 48 para. 2(2)

F890Words in s. 289(1A)(a) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 11(3)(a); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)

F891Words in s. 289(1A)(b) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 11(3)(b)(i); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)

F892Words in s. 289(1A)(b) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 11(3)(b)(ii); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)

F893Words in s. 289(1C)(1D) substituted (17.7.2013) by Finance Act 2013 (c. 29), Sch. 48 para. 2(3)

F894Words in s. 289(1C) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 11(4)(a); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)

F895Words in s. 289(1C) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 11(4)(b); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)

F896Words in s. 289(1D) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 11(5)(a); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)

F897Words in s. 289(1D) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 11(5)(b); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)

F898Words in s. 289(2) substituted (17.7.2013) by Finance Act 2013 (c. 29), Sch. 48 para. 2(2)

F900Words in s. 289(2) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 11(6); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)

F902Words in s. 289(3) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 11(7); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)

F904Words in s. 289(4) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 11(8); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)

F905Words in s. 289(4) substituted (1.6.2015 for E.W.S., 1.3.2016 in so far as not already in force) by Policing and Crime Act 2009 (c. 26), ss. 63(3), 116(1); S.I. 2015/983, art. 2(2)(b); S.I. 2016/147, art. 3(d)

F906Words in s. 289(5)(b) substituted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 31; S.I. 2018/78, reg. 5(1)(e); S.I. 2021/724, reg. 4(g)

F907S. 289(5)(ba) omitted (27.4.2017 for specified purposes, 27.6.2017 in so far as not already in force) by virtue of Criminal Finances Act 2017 (c. 22), ss. 18(4)(a), 58(4)(6)

F908Words in s. 289(5)(c) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 11(9); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)

F909Words in s. 289(5)(c) substituted (1.6.2015 for E.W.S. for specified purposes, 1.3.2016 in so far as not already in force) by Policing and Crime Act 2009 (c. 26), ss. 63(4), 116(1); S.I. 2015/983, art. 2(2)(b); S.I. 2016/147, art. 3(d)

F910S. 289(5A) omitted (27.4.2017 for specified purposes, 27.6.2017 in so far as not already in force) by virtue of Criminal Finances Act 2017 (c. 22), ss. 18(4)(a), 58(4)(6)

F911S. 289(6)(f)-(h) inserted (27.4.2017 for specified purposes, 16.4.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 14(1), 58(1)(6); S.I. 2018/78, reg. 4(a); S.I. 2021/724, reg. 2(1)(e)

F913S. 289(7A)-(7C) inserted (27.4.2017 for specified purposes, 16.4.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 14(2), 58(1)(6); S.I. 2018/78, reg. 4(a); S.I. 2021/724, reg. 2(1)(e)

290 Prior approvalU.K.

(1)The powers conferred by section 289 may be exercised only with the appropriate approval unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

(2)The appropriate approval means the approval of a judicial officer or (if that is not practicable in any case) the approval of a senior officer.

(3)A judicial officer means—

(a)in relation to England and Wales and Northern Ireland, a justice of the peace,

(b)in relation to Scotland, the sheriff.

(4)A senior officer means—

(a)in relation to the exercise of the power by [F914an officer of Revenue and Customs, such an officer] of a rank designated by the Commissioners of Customs and Excise as equivalent to that of a senior police officer,

[F915(aa)in relation to the exercise of a power by an SFO officer, the Director of the Serious Fraud Office,]

[F916(ab)in relation to the exercise of a power by a National Crime Agency officer, the Director General of the National Crime Agency or any other National Crime Agency officer authorised by the Director General (whether generally or specifically) for this purpose,]

(b)in relation to the exercise of the power by a constable, a senior police officer.

[F917(ba)in relation to the exercise of a power by an accredited financial investigator who is—

(i)a member of the civilian staff of a police force in England and Wales (including the metropolitan police force), within the meaning of Part 1 of the Police Reform and Social Responsibility Act 2011,

(ii)a member of staff of the City of London police force, or

(iii)a member of staff of the Police Service of Northern Ireland,

a senior police officer,]

[F918(c)in relation to the exercise of the power by an accredited financial investigator [F919who does not fall within any of the preceding paragraphs], an accredited financial investigator who falls within a description specified in an order made for this purpose by the Secretary of State [F920or the Welsh Ministers] under section 453.]

(5)A senior police officer means a police officer of at least the rank of inspector.

(6)If the powers are exercised without the approval of a judicial officer in a case where—

(a)no cash is seized by virtue of section 294, or

(b)any cash so seized is not detained for more than 48 hours [F921(calculated in accordance with section 295(1B))],

the [F922officer of Revenue and Customs] [F923, constable [F924, SFO officer] or accredited financial investigator] who exercised the powers must give a written report to the appointed person.

[F925(6A)But the duty in subsection (6) does not apply if, during the course of exercising the powers conferred by section 289, the relevant officer seizes property by virtue of section 303J [F926, 303Z26 or 303Z29] and the property so seized is detained for more than 48 hours (calculated in accordance with section 303K(5) [F927, 303Z27(3) or (as the case may be) 303Z31(3)]).]

(7)The report must give particulars of the circumstances which led him to believe that—

(a)the powers were exercisable, and

(b)it was not practicable to obtain the approval of a judicial officer.

(8)In this section and section 291, the appointed person means—

(a)in relation to England and Wales F928..., a person appointed by the Secretary of State,

(b)in relation to Scotland, a person appointed by the Scottish Ministers.

[F929(c)in relation to Northern Ireland, a person appointed by the Department of Justice.]

(9)The appointed person must not be a person employed under or for the purposes of a government department or of the Scottish Administration; and the terms and conditions of his appointment, including any remuneration or expenses to be paid to him, are to be determined by the person appointing him.

Textual Amendments

F914Words in s. 290(4)(a) substituted (17.7.2013) by Finance Act 2013 (c. 29), Sch. 48 para. 3(a)

F915S. 290(4)(aa) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 12(2); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)

F916S. 290(4)(ab) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 34(6), 58(1)(6); S.I. 2018/78, reg. 3(s)

F917S. 290(4)(ba) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 31(4), 58(1)(6); S.I. 2018/78, reg. 3(n); S.I. 2021/724, reg. 2(1)(o)

F919Words in s. 290(4)(c) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. for specified purposes, 16.4.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 32(2); S.I. 2018/78, reg. 5(3)(a)(i)(ii); S.I. 2021/724, reg. 4(g)

F922Words in s. 290(6) substituted (17.7.2013) by Finance Act 2013 (c. 29), Sch. 48 para. 3(b)

F924Words in s. 290(6) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 12(3); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)

F925S. 290(6A) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. for specified purposes, 16.4.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 32(3); S.I. 2018/78, reg. 5(3)(a)(i)(ii); S.I. 2021/724, reg. 4(g)

F926Words in s. 290(6A) inserted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 6(3)(a); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

F927Words in s. 290(6A) inserted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 6(3)(b); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

Modifications etc. (not altering text)

291 Report on exercise of powersU.K.

(1)As soon as possible after the end of each financial year, the appointed person must prepare a report for that year.

“Financial year” means—

(a)

the period beginning with the day on which this section comes into force and ending with the next 31 March (which is the first financial year), and

(b)

each subsequent period of twelve months beginning with 1 April.

(2)The report must give his opinion as to the circumstances and manner in which the powers conferred by section 289 are being exercised in cases where the [F930officer of Revenue and Customs] [F931, constable [F932, SFO officer] or accredited financial investigator] who exercised them is required to give a report under section 290(6).

(3)In the report, he may make any recommendations he considers appropriate.

(4)He must send a copy of his report to the Secretary of State or, as the case may be, the Scottish Ministers [F933or the Department of Justice], who must arrange for it to be published.

(5)The Secretary of State must lay a copy of any report he receives under this section before Parliament; and the Scottish Ministers must lay a copy of any report they receive under this section before the Scottish Parliament [F934; and the Department of Justice must lay a copy of any report it receives under this section before the Northern Ireland Assembly].

[F935(6)Section 41(3) of the Interpretation Act (Northern Ireland) 1954 applies for the purposes of subsection (5) in relation to the laying of a copy of a report as it applies in relation to the laying of a statutory document under an enactment.]

Textual Amendments

F930Words in s. 291(2) substituted (17.7.2013) by Finance Act 2013 (c. 29), Sch. 48 para. 4

F932Words in s. 291(2) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 13; S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)

292 Code of practiceU.K.

(1)The Secretary of State must make a code of practice in connection with the exercise by [F936officers of Revenue and Customs] [F937, SFO officers] and (in relation to England and Wales F938...) constables [F939and accredited financial investigators] of the powers conferred by virtue of section 289.

(2)Where he proposes to issue a code of practice he must—

(a)publish a draft,

(b)consider any representations made to him about the draft by the Scottish Ministers [F940, the Department of Justice] or any other person,

(c)if he thinks it appropriate, modify the draft in the light of any such representations.

[F941(2A)The Secretary of State must also consult the Attorney General about the draft in its application to the exercise of powers by SFO officers and the Director of the Serious Fraud Office.]

(3)He must lay a draft of the code before Parliament.

(4)When he has laid a draft of the code before Parliament he may bring it into operation by order.

(5)He may revise the whole or any part of the code issued by him and issue the code as revised; and subsections (2) to (4) apply to such a revised code as they apply to the original code.

(6)A failure by [F942an officer of Revenue and Customs] [F943an SFO officer,] [F944, a constable or an accredited financial investigator] to comply with a provision of the code does not of itself make him liable to criminal or civil proceedings.

(7)The code is admissible in evidence in criminal or civil proceedings and is to be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant.

Textual Amendments

F936Words in s. 292(1) substituted (17.7.2013) by Finance Act 2013 (c. 29), Sch. 48 para. 5(a)

F937Words in s. 292(1) inserted (27.4.2017 for specified purposes, 31.10.2017 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 14(2); S.I. 2017/991, reg. 2(l); S.I. 2021/724, reg. 3(b)

F941S. 292(2A) inserted (27.4.2017 for specified purposes, 31.10.2017 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 14(3); S.I. 2017/991, reg. 2(l); S.I. 2021/724, reg. 3(b)

F942Words in s. 292(6) substituted (17.7.2013) by Finance Act 2013 (c. 29), Sch. 48 para. 5(b)

F943Words in s. 292(6) inserted (27.4.2017 for specified purposes, 31.10.2017 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 14(4); S.I. 2017/991, reg. 2(l); S.I. 2021/724, reg. 3(b)

Modifications etc. (not altering text)

293 Code of practice (Scotland)U.K.

(1)The Scottish Ministers must make a code of practice in connection with the exercise by constables in relation to Scotland of the powers conferred by virtue of section 289.

(2)Where they propose to issue a code of practice they must—

(a)publish a draft,

(b)consider any representations made to them about the draft,

(c)if they think it appropriate, modify the draft in the light of any such representations.

(3)They must lay a draft of the code before the Scottish Parliament.

(4)When they have laid a draft of the code before the Scottish Parliament they may bring it into operation by order.

(5)They may revise the whole or any part of the code issued by them and issue the code as revised; and subsections (2) to (4) apply to such a revised code as they apply to the original code.

(6)A failure by a constable to comply with a provision of the code does not of itself make him liable to criminal or civil proceedings.

(7)The code is admissible in evidence in criminal or civil proceedings and is to be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant.

Modifications etc. (not altering text)

C69Pt. 5 Ch. 3 applied by 2007 c. 30, s. 24(1) (as substituted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 21(3), 58(1)(6); S.I. 2018/78, reg. 3(f))

[F945293ACode of practice (Northern Ireland)U.K.

(1)The Department of Justice must make a code of practice in connection with the exercise by constables and accredited financial investigators, in relation to Northern Ireland, of the powers conferred by virtue of section 289.

(2)Where the Department of Justice proposes to issue a code of practice it must—

(a)publish a draft,

(b)consider any representations made to the Department of Justice about the draft,

(c)if the Department of Justice thinks it appropriate, modify the draft in the light of any such representations.

(3)The Department of Justice must lay a draft of the code before the Northern Ireland Assembly.

(4)When the Department of Justice has laid a draft of the code before the Northern Ireland Assembly, the Department of Justice may bring it into operation by order.

(5)Section 41(3) of the Interpretation Act (Northern Ireland) 1954 applies for the purposes of subsections (3) and (4) in relation to the laying of a draft as it applies in relation to the laying of a statutory document under an enactment.

(6)The Department of Justice may revise the whole or any part of the code issued by it and issue the code as revised; and subsections (2) to (5) apply to such a revised code as they apply to the original code.

(7)A failure by a constable or accredited financial investigator to comply with a provision of the code does not of itself make him liable to criminal or civil proceedings.

(8)The code is admissible in evidence in criminal or civil proceedings and is to be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant.]

Textual Amendments

Modifications etc. (not altering text)

C69Pt. 5 Ch. 3 applied by 2007 c. 30, s. 24(1) (as substituted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 21(3), 58(1)(6); S.I. 2018/78, reg. 3(f))

Seizure and detentionU.K.

294 Seizure of cashU.K.

(1)[F946An officer of Revenue and Customs] [F947, a constable [F948, an SFO officer] or an accredited financial investigator] may seize any cash if he has reasonable grounds for suspecting that it is—

(a)recoverable property, or

(b)intended by any person for use in unlawful conduct.

(2)[F946An officer of Revenue and Customs] [F949, a constable [F950, an SFO officer] or an accredited financial investigator] may also seize cash part of which he has reasonable grounds for suspecting to be—

(a)recoverable property, or

(b)intended by any person for use in unlawful conduct,

if it is not reasonably practicable to seize only that part.

F951(2A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F952(2B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F953(2C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)This section does not authorise the seizure of an amount of cash if it or, as the case may be, the part to which his suspicion relates, is less than the minimum amount.

[F954(4)This section does not authorise the seizure by [F955an SFO officer or] an accredited financial investigator of cash found in Scotland.]

Textual Amendments

F946Words in s. 294(1)(2) substituted (17.7.2013) by Finance Act 2013 (c. 29), Sch. 48 para. 6(2)

F948Words in s. 294(1) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 15(2); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)

F950Words in s. 294(2) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 15(3); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)

F951S. 294(2A) omitted (27.4.2017 for specified purposes, 27.6.2017 in so far as not already in force) by virtue of Criminal Finances Act 2017 (c. 22), ss. 18(4)(b), 58(4)(6)

F952S. 294(2B) omitted (27.4.2017 for specified purposes, 27.6.2017 in so far as not already in force) by virtue of Criminal Finances Act 2017 (c. 22), ss. 18(4)(b), 58(4)(6)

F953S. 294(2C) omitted (27.4.2017 for specified purposes, 27.6.2017 in so far as not already in force) by virtue of Criminal Finances Act 2017 (c. 22), ss. 18(4)(b), 58(4)(6)

F955Words in s. 294(4) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 15(4); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)

Modifications etc. (not altering text)

295 Detention of seized cashU.K.

(1)While the [F956officer of Revenue and Customs] [F957 , constable [F958, SFO officer] or accredited financial investigator] continues to have reasonable grounds for his suspicion, cash seized under section 294 may be detained initially for a period of 48 hours.

[F959(1A)The period of 48 hours mentioned in subsection (1) is to be calculated in accordance with subsection (1B).

(1B)In calculating a period of 48 hours in accordance with this subsection, no account shall be taken of—

(a)any Saturday or Sunday,

(b)Christmas Day,

(c)Good Friday,

(d)any day that is a bank holiday under the Banking and Financial Dealings Act 1971 in the part of the United Kingdom within which the cash is seized, or

(e)any day prescribed under section 8(2) of the Criminal Procedure (Scotland) Act 1995 as a court holiday in a sheriff court in the sheriff court district within which the cash is seized.]

(2)The period for which the cash or any part of it may be detained may be extended by an order made by a magistrates’ court or (in Scotland) the sheriff; but the order may not authorise the detention of any of the cash—

(a)beyond the end of the period of [F960six months] beginning with the date of the order,

(b)in the case of any further order under this section, beyond the end of the period of two years beginning with the date of the first order.

(3)A justice of the peace may also exercise the power of a magistrates’ court to make the first order under subsection (2) extending the period.

(4)An application for an order under subsection (2)—

(a)in relation to England and Wales and Northern Ireland, may be made by the Commissioners of Customs and Excise [F961, a constable [F962, an SFO officer] or an accredited financial investigator],

(b)in relation to Scotland, may be made by the Scottish Ministers in connection with their functions under section 298 or by a procurator fiscal,

and the court, sheriff or justice may make the order if satisfied, in relation to any cash to be further detained, that either of the following conditions is met.

(5)The first condition is that there are reasonable grounds for suspecting that the cash is recoverable property and that either—

(a)its continued detention is justified while its derivation is further investigated or consideration is given to bringing (in the United Kingdom or elsewhere) proceedings against any person for an offence with which the cash is connected, or

(b)proceedings against any person for an offence with which the cash is connected have been started and have not been concluded.

(6)The second condition is that there are reasonable grounds for suspecting that the cash is intended to be used in unlawful conduct and that either—

(a)its continued detention is justified while its intended use is further investigated or consideration is given to bringing (in the United Kingdom or elsewhere) proceedings against any person for an offence with which the cash is connected, or

(b)proceedings against any person for an offence with which the cash is connected have been started and have not been concluded.

(7)An application for an order under subsection (2) may also be made in respect of any cash seized under section 294(2), and the court, sheriff or justice may make the order if satisfied that—

(a)the condition in subsection (5) or (6) is met in respect of part of the cash, and

(b)it is not reasonably practicable to detain only that part.

(8)An order under subsection (2) must provide for notice to be given to persons affected by it.

Textual Amendments

F956Words in s. 295(1) substituted (17.7.2013) by Finance Act 2013 (c. 29), Sch. 48 para. 7

F958Words in s. 295(1) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 16(2); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)

F960Words in s. 295(2)(a) substituted (25.1.2010) by Policing and Crime Act 2009 (c. 26), ss. 64(1), 116(1) (with s. 64(2); S.I. 2009/3096, art. 3(i)

F962Words in s. 295(4)(a) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 16(3); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)

296 InterestU.K.

(1)If cash is detained under section 295 for more than 48 hours [F963(calculated in accordance with section 295(1B))], it is at the first opportunity to be paid into an interest-bearing account and held there; and the interest accruing on it is to be added to it on its forfeiture or release.

(2)In the case of cash detained under section 295 which was seized under section 294(2), the [F964officer of Revenue and Customs] [F965 , constable [F966, SFO officer] or accredited financial investigator] must, on paying it into the account, release the part of the cash to which the suspicion does not relate.

(3)Subsection (1) does not apply if the cash or, as the case may be, the part to which the suspicion relates is required as evidence of an offence or evidence in proceedings under this Chapter.

Textual Amendments

F964Words in s. 296(2) substituted (17.7.2013) by Finance Act 2013 (c. 29), Sch. 48 para. 8

F966Words in s. 296(2) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 17; S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)

297 Release of detained cashU.K.

(1)This section applies while any cash is detained under section 295.

(2)A magistrates’ court or (in Scotland) the sheriff may direct the release of the whole or any part of the cash if the following condition is met.

(3)The condition is that the court or sheriff is satisfied, on an application by the person from whom the cash was seized, that the conditions in section 295 for the detention of the cash are no longer met in relation to the cash to be released.

(4)[F967An officer of Revenue and Customs], constable [F968, SFO officer] [F969or accredited financial investigator] or (in Scotland) procurator fiscal may, after notifying the magistrates’ court, sheriff or justice under whose order cash is being detained, release the whole or any part of it if satisfied that the detention of the cash to be released is no longer justified.

Textual Amendments

F967Words in s. 297(4) substituted (17.7.2013) by Finance Act 2013 (c. 29), Sch. 48 para. 9

F968Words in s. 297(4) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 18; S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)

[F970Forfeiture without court orderU.K.

Textual Amendments

F970Ss. 297A-297G and cross-heading inserted (22.11.2014 for the insertion of s. 297A(3)-(5) for specified purposes, 1.6.2015 for specified purposes, 1.3.2016 in so far as not already in force) by Policing and Crime Act 2009 (c. 26), ss. 65(1), 116(1) (with s. 65(4)); S.I. 2014/3101, art. 3; S.I. 2015/983, art. 2(2)(c); S.I. 2016/147, art. 3(e)

297AForfeiture noticeU.K.

(1)Subsection (2) applies while any cash is detained in pursuance of an order under section 295(2) made by a magistrates' court in England and Wales or Northern Ireland.

(2)A senior officer may give a notice for the purpose of forfeiting the cash or any part of it if satisfied that the cash or part—

(a)is recoverable property, or

(b)is intended by any person for use in unlawful conduct.

(3)The Secretary of State must make regulations about how a notice is to be given.

(4)The regulations may provide—

(a)for a notice to be given to such person or persons, and in such manner, as may be prescribed;

(b)for a notice to be given by publication in such manner as may be prescribed;

(c)for circumstances in which, and the time at which, a notice is to be treated as having been given.

(5)The regulations must ensure that where a notice is given it is, if possible, given to every person to whom notice of an order under section 295(2) in respect of the cash has been given.

(6)A senior officer means—

(a)an officer of Revenue and Customs of a rank designated by the Commissioners for Her Majesty's Revenue and Customs as equivalent to that of a senior police officer,

[F971(aa)an immigration officer of a rank designated by the Secretary of State as equivalent to that of a senior police officer,]

(b)a senior police officer, F972...

[F973(ba)the Director of the Serious Fraud Office, or]

[F974(bb)the Director General of the National Crime Agency or any other National Crime Agency officer authorised by the Director General (whether generally or specifically) for this purpose,]

(c)an accredited financial investigator.

(7)A senior police officer means a police officer of at least the rank of inspector.

(8)A notice under this section is referred to in this Chapter as a forfeiture notice.

Textual Amendments

F972Word in s. 297A(6)(b) omitted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by virtue of Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 19(a); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)

F973S. 297A(6)(ba) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 19(b); S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)

F974S. 297A(6)(bb) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 34(7), 58(1)(6); S.I. 2018/78, reg. 3(s)

Modifications etc. (not altering text)

297BContentU.K.

(1)A forfeiture notice must—

(a)state the amount of cash in respect of which it is given,

(b)state when and where the cash was seized,

(c)confirm that the senior officer is satisfied as mentioned in section 297A(2),

(d)specify a period for objecting to the proposed forfeiture and an address to which any objections must be sent, and

(e)explain that the cash will be forfeited unless an objection is received at that address within the period for objecting.

(2)The period for objecting must be at least 30 days starting with the day after the notice is given.

Modifications etc. (not altering text)

C69Pt. 5 Ch. 3 applied by 2007 c. 30, s. 24(1) (as substituted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 21(3), 58(1)(6); S.I. 2018/78, reg. 3(f))

297CEffectU.K.

(1)This section applies if a forfeiture notice is given in respect of any cash.

(2)The cash is to be detained until—

(a)the cash is forfeited under this section,

(b)the notice lapses under this section, or

(c)the cash is released under a power conferred by this Chapter.

(3)If no objection is made within the period for objecting, and the notice has not lapsed, the cash is forfeited (subject to section 297E).

(4)If an objection is made within the period for objecting, the notice lapses.

(5)If an application is made for the forfeiture of the whole or any part of the cash under section 298, the notice lapses.

(6)If the cash or any part of it is released under a power conferred by this Chapter, the notice lapses or (as the case may be) lapses in relation to that part.

(7)An objection may be made by anyone, whether a recipient of the notice or not.

(8)An objection means a written objection sent to the address specified in the notice; and an objection is made when it is received at the address.

(9)An objection does not prevent forfeiture of the cash under section 298.

(10)Nothing in this section affects the validity of an order under section 295(2).

Modifications etc. (not altering text)

C69Pt. 5 Ch. 3 applied by 2007 c. 30, s. 24(1) (as substituted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 21(3), 58(1)(6); S.I. 2018/78, reg. 3(f))

297DDetention following lapse of noticeU.K.

(1)This section applies if—

(a)a forfeiture notice is given in respect of any cash,

(b)the notice lapses under section 297C(4), and

(c)the period for which detention of the cash was authorised under section 295(2) has expired.

(2)The cash may be detained for a further period of up to 48 hours (calculated in accordance with section 295(1B)).

(3)But if within that period the Commissioners for Her Majesty's Revenue and Customs, a constable [F975, an SFO officer] or an accredited financial investigator decides that neither of the applications mentioned in subsection (4) ought to be made, the cash must be released.

(4)The applications are—

(a)an application for a further order under section 295(2);

(b)an application for forfeiture of the cash under section 298.

(5)“ If within that period an application is made for a further order under section 295(2) the cash may be detained until the application is determined or otherwise disposed of. ”

Textual Amendments

F975Words in s. 297D(3) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 20; S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)

297EApplication to set aside forfeitureU.K.

(1)This section applies if any cash is forfeited in pursuance of a forfeiture notice.

(2)A person aggrieved by the forfeiture may apply to a magistrates' court in England and Wales or Northern Ireland for an order setting aside the forfeiture of the cash or any part of it.

(3)The application must be made before the end of the period of 30 days starting with the day on which the period for objecting ended.

(4)But the court may give permission for an application to be made after the 30-day period has ended if it thinks that there are exceptional circumstances to explain why the applicant—

(a)failed to object to the forfeiture within the period for objecting, and

(b)failed to make an application within the 30-day period.

(5)On an application under this section the court must consider whether the cash to which the application relates could be forfeited under section 298 (ignoring the forfeiture mentioned in subsection (1) above).

(6)If the court is satisfied that the cash to which the application relates or any part of it could not be forfeited under that section it must set aside the forfeiture of that cash or part.

(7)Where the court sets aside the forfeiture of any cash—

(a)it must order the release of that cash, and

(b)that cash is to be treated as never having been forfeited.

Modifications etc. (not altering text)

C69Pt. 5 Ch. 3 applied by 2007 c. 30, s. 24(1) (as substituted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 21(3), 58(1)(6); S.I. 2018/78, reg. 3(f))

297FRelease of cash subject to forfeiture noticeU.K.

(1)This section applies while any cash is detained under section 297C or 297D.

(2)A magistrates' court may direct the release of the whole or any part of the cash if the following condition is met.

(3)The condition is that the court is not satisfied, on an application by the person from whom the cash was seized, that the cash to be released—

(a)is recoverable property, or

(b)is intended by any person for use in unlawful conduct.

(4)An officer of Revenue and Customs, [F976immigration officer,] constable [F977, SFO officer] or accredited financial investigator may release the cash or any part of it if satisfied that the detention of the cash to be released is no longer justified.

Textual Amendments

F977Words in s. 297F(4) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 21; S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)

297GApplication of forfeited cashU.K.

(1)Cash forfeited in pursuance of a forfeiture notice, and any accrued interest on it, is to be paid into the Consolidated Fund.

(2)But it is not to be paid in—

(a)before the end of the period within which an application under section 297E may be made (ignoring the possibility of an application by virtue of section 297E(4)), or

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

Modifications etc. (not altering text)

C69Pt. 5 Ch. 3 applied by 2007 c. 30, s. 24(1) (as substituted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 21(3), 58(1)(6); S.I. 2018/78, reg. 3(f))

ForfeitureU.K.

298 ForfeitureU.K.

(1)While cash is detained under section 295 [F978, 297C or 297D ], an application for the forfeiture of the whole or any part of it may be made—

(a)to a magistrates’ court by the Commissioners of Customs and Excise [F979, an accredited financial investigator] [F980, a constable or an SFO officer],

(b)(in Scotland) to the sheriff by the Scottish Ministers.

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

(a)is recoverable property, or

(b)is intended by any person for use in unlawful conduct.

(3)But in the case of recoverable property which belongs to joint tenants, one of whom is an excepted joint owner, the order may not apply to so much of it as the court thinks is attributable to the excepted joint owner’s share.

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

Textual Amendments

F980Words in s. 298(1)(a) substituted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 22; S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)

[F981299Appeal against decision under section 298U.K.

(1)Any party to proceedings for an order for the forfeiture of cash under section 298 who is aggrieved by an order under that section or by the decision of the court not to make such an order may appeal—

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

(b)in relation to Scotland, to the Sheriff Principal;

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

(2)An appeal under subsection (1) must be made before the end of the period of 30 days starting with the day on which the court makes the order or decision.

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

(4)If the court upholds an appeal against an order forfeiting the cash, it may [F982order the release of the whole or any part of the cash] .]

Textual Amendments

F982Words in s. 299(4) substituted (1.6.2015) by Policing and Crime Act 2009 (c. 26), ss. 65(3), 116(1); S.I. 2015/983, art. 2(2)(c)

Modifications etc. (not altering text)

C69Pt. 5 Ch. 3 applied by 2007 c. 30, s. 24(1) (as substituted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 21(3), 58(1)(6); S.I. 2018/78, reg. 3(f))

300 Application of forfeited cashU.K.

(1)Cash forfeited under [F983section 298], and any accrued interest on it—

(a)if forfeited by a magistrates’ court in England and Wales or Northern Ireland, is to be paid into the Consolidated Fund,

(b)if forfeited by the sheriff, is to be paid into the Scottish Consolidated Fund.

(2)But it is not to be paid in—

(a)before the end of the period within which an appeal under section 299 may be made, or

(b)if a person appeals under that section, before the appeal is determined or otherwise disposed of.

Textual Amendments

Modifications etc. (not altering text)

C69Pt. 5 Ch. 3 applied by 2007 c. 30, s. 24(1) (as substituted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 21(3), 58(1)(6); S.I. 2018/78, reg. 3(f))

SupplementaryU.K.

301 Victims and other ownersU.K.

(1)A person who claims that any cash detained under this Chapter, or any part of it, belongs to him may apply to a magistrates’ court or (in Scotland) the sheriff for the cash or part to be released to him.

(2)The application may be made in the course of proceedings under section 295 or 298 or at any other time.

(3)If it appears to the court or sheriff concerned that—

(a)the applicant was deprived of the cash to which the application relates, or of property which it represents, by unlawful conduct,

(b)the property he was deprived of was not, immediately before he was deprived of it, recoverable property, and

(c)that cash belongs to him,

the court or sheriff may order the cash to which the application relates to be released to the applicant.

(4)If—

(a)the applicant is not the person from whom the cash to which the application relates was seized,

(b)it appears to the court or sheriff that that cash belongs to the applicant,

(c)the court or sheriff is satisfied that [F984the release condition is met] in relation to that cash, and

(d)no objection to the making of an order under this subsection has been made by the person from whom that cash was seized,

the court or sheriff may order the cash to which the application relates to be released to the applicant or to the person from whom it was seized.

[F985(5)The release condition is met—

(a)in relation to cash detained under section 295, if the conditions in that section for the detention of the cash are no longer met,

(b)in relation to cash detained under section 297C or 297D, if the cash is not recoverable property and is not intended by a person for use in unlawful conduct, and

(c)in relation to cash detained under 298, if the court or sheriff decides not to make an order under that section in relation to the cash.]

Textual Amendments

F984Words in s. 301(4)(c) substituted (1.6.2015 for E.W.S., 1.3.2016 in so far as not already in force) by Policing and Crime Act 2009 (c. 26), s. 116(1), Sch. 7 para. 108(2); S.I. 2015/983, arts. 2(2)(e), 3(ff); S.I. 2016/147, art. 3(j)

F985S. 301(5) inserted (1.6.2015 for E.W.S., 1.3.2016 in so far as not already in force) by Policing and Crime Act 2009 (c. 26), s. 116(1), Sch. 7 para. 108(3); S.I. 2015/983, arts. 2(2)(e), 3(ff); S.I. 2016/147, art. 3(j)

Modifications etc. (not altering text)

C69Pt. 5 Ch. 3 applied by 2007 c. 30, s. 24(1) (as substituted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 21(3), 58(1)(6); S.I. 2018/78, reg. 3(f))

302 CompensationU.K.

[F986(1)If cash detained under this Chapter was seized in England, Wales or Northern Ireland the person to whom the cash belongs or from whom it was seized may make an application to a magistrates' court for compensation if—

(a)the cash is not forfeited in pursuance of a forfeiture notice, and

(b)no forfeiture order is made in respect of the cash.

(1A)If cash detained under this Chapter was seized in Scotland the person to whom the cash belongs or from whom it was seized may make an application to the sheriff for compensation if no forfeiture order is made in respect of the cash.]

(2)If, for any period beginning with the first opportunity to place the cash in an interest-bearing account after the initial detention of the cash for 48 hours [F987(calculated in accordance with section 295(1B))], the cash was not held in an interest-bearing account while detained, the court or sheriff may order an amount of compensation to be paid to the applicant.

(3)The amount of compensation to be paid under subsection (2) is the amount the court or sheriff thinks would have been earned in interest in the period in question if the cash had been held in an interest-bearing account.

(4)If the court or sheriff is satisfied that, taking account of any interest to be paid under section 296 or any amount to be paid under subsection (2), the applicant has suffered loss as a result of the detention of the cash and that the circumstances are exceptional, the court or sheriff may order compensation (or additional compensation) to be paid to him.

(5)The amount of compensation to be paid under subsection (4) is the amount the court or sheriff thinks reasonable, having regard to the loss suffered and any other relevant circumstances.

(6)If the cash was seized by [F988an officer of Revenue and Customs], the compensation is to be paid by the Commissioners of Customs and Excise.

(7)If the cash was seized by a constable, the compensation is to be paid as follows—

(a)in the case of a constable of a police force in England and Wales, it is to be paid out of the police fund from which the expenses of the police force are met,

(b)in the case of a constable of a police force in Scotland, it is to be paid by the [F989Scottish Police Authority],

[F990(ba)in the case of a constable of the Police Service of Scotland, it is to be paid by the Scottish Police Authority,]

(c)in the case of a police officer within the meaning of the Police (Northern Ireland) Act 2000 (c. 32), it is to be paid out of money provided by the Chief Constable.

[F991(7ZA)If the cash was seized by an SFO officer, the compensation is to be paid by the Director of the Serious Fraud Office.]

[F992(7ZB)If the cash was seized by a National Crime Agency officer, the compensation is to be paid by the National Crime Agency.]

[F993(7A)If the cash was seized by an accredited financial investigator who was not an officer of Revenue and Customs [F994, a constable, an SFO officer or a National Crime Agency officer], the compensation is to be paid as follows—

(a)in the case of an investigator—

[F995(i)who was a member of the civilian staff of a police force, including the metropolitan police force, (within the meaning of [F996that Part of that Act] [F996Part 1 of the Police Reform and Social Responsibility Act 2011] ), or]

(ii)who was a member of staff of the City of London police force,

it is to be paid out of the police fund from which the expenses of the police force are met,

(b)in the case of an investigator who was a member of staff of the Police Service of Northern Ireland, it is to be paid out of money provided by the Chief Constable,

(c)in the case of an investigator who was a member of staff of a department of the Government of the United Kingdom, it is to be paid by the Minister of the Crown in charge of the department or by the department,

(d)in the case of an investigator who was a member of staff of a Northern Ireland department, it is to be paid by the department,

[F997(da)in the case of an investigator who was exercising a function of the Welsh Revenue Authority, it is to be paid by the Welsh Revenue Authority,]

(e)in any other case, it is to be paid by the employer of the investigator.

(7B)The Secretary of State may by order amend subsection (7A).]

[F998(7C)If any cash is detained under this Chapter and part only of the cash is forfeited in pursuance of a forfeiture notice, this section has effect in relation to the other part.]

(8)If a forfeiture order is made in respect only of a part of any cash detained under this Chapter, this section has effect in relation to the other part.

[F999(9)The power in subsection (7B) is exercisable by the Department of Justice (and not by the Secretary of State) so far as it may be used to make provision which could be made by an Act of the Northern Ireland Assembly without the consent of the Secretary of State (see sections 6 to 8 of the Northern Ireland Act 1998).]

Textual Amendments

F986S. 302(1)(1A) substituted for s. 302(1) (1.6.2015 for E.W.S. for specified purposes, 1.3.2016 in so far as not already in force) by Policing and Crime Act 2009 (c. 26), s. 116(1), Sch. 7 para. 109(2); S.I. 2015/983, arts. 2(2)(e), 3(gg); S.I. 2016/147, art. 3(j)

F988Words in s. 302(6) substituted (17.7.2013) by Finance Act 2013 (c. 29), Sch. 48 para. 10

F991S. 302(7ZA) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(1)(6), Sch. 1 para. 23; S.I. 2018/78, reg. 3(aa); S.I. 2021/724, reg. 3(b)

F992S. 302(7ZB) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 34(8), 58(1)(6); S.I. 2018/78, reg. 3(s)

F994Words in s. 302(7A) substituted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 33; S.I. 2018/78, reg. 5(1)(e)

F996Words in s. 302(7A)(a)(i) substituted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 34(9), 58(1)(6); S.I. 2018/78, reg. 3(s)

F997S. 302(7A)(da) inserted (25.1.2018) by Tax Collection and Management (Wales) Act 2016 (anaw 6), ss. 186(1)(3), 194(2): S.I. 2018/33, art. 2(j)

F998S. 302(7C) inserted (1.6.2015 for E.W.S., 1.3.2016 in so far as not already in force) by Policing and Crime Act 2009 (c. 26), s. 116(1), Sch. 7 para. 109(3); S.I. 2015/983, arts. 2(2)(e), 3(gg); S.I. 2016/147, art. 3(j)

[F1000302APowers for prosecutors to appear in proceedingsU.K.

(1)The Director of Public Prosecutions or the Director of Public Prosecutions for Northern Ireland may appear for a constable [F1001or an accredited financial investigator] in proceedings under this Chapter if the Director—

(a)is asked by, or on behalf of, a constable [F1002 or (as the case may be) an accredited financial investigator] to do so, and

(b)considers it appropriate to do so.

(2)[F1003The Director of Public Prosecutions] may appear for the Commissioners for Her Majesty's Revenue and Customs or an officer of Revenue and Customs in proceedings under this Chapter if the Director—

(a)is asked by, or on behalf of, the Commissioners for Her Majesty's Revenue and Customs or (as the case may be) an officer of Revenue and Customs to do so, and

(b)considers it appropriate to do so.

(3)The Directors may charge fees for the provision of services under this section.]

[F1004(4)The references in subsection (1) to an accredited financial investigator do not include an accredited financial investigator who is an officer of Revenue and Customs but the references in subsection (2) to an officer of Revenue and Customs do include an accredited financial investigator who is an officer of Revenue and Customs.]

Textual Amendments

Modifications etc. (not altering text)

C69Pt. 5 Ch. 3 applied by 2007 c. 30, s. 24(1) (as substituted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 21(3), 58(1)(6); S.I. 2018/78, reg. 3(f))

303“The minimum amount”U.K.

(1)In this Chapter, the minimum amount is the amount in sterling specified in an order made by the Secretary of State after consultation with the Scottish Ministers [F1005and the Department of Justice] .

(2)For that purpose the amount of any cash held in a currency other than sterling must be taken to be its sterling equivalent, calculated in accordance with the prevailing rate of exchange.

Textual Amendments

Modifications etc. (not altering text)

C69Pt. 5 Ch. 3 applied by 2007 c. 30, s. 24(1) (as substituted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 21(3), 58(1)(6); S.I. 2018/78, reg. 3(f))

[F1006303AFinancial investigatorsU.K.

(1)In this Chapter (apart from this section) any reference in a provision to an accredited financial investigator is a reference to an accredited financial investigator who falls within a description specified in an order made for the purposes of that provision by the Secretary of State [F1007or the Welsh Ministers] under section 453.

(2)Subsection (1) does not apply to the second reference to an accredited financial investigator in section 290(4)(c).

(3)Where an accredited financial investigator of a particular description—

(a)applies for an order under section 295,

(b)applies for forfeiture under section 298, or

(c)brings an appeal under, or relating to, this Chapter,

any subsequent step in the application or appeal, or any further application or appeal relating to the same matter, may be taken, made or brought by a different accredited financial investigator of the same description.]

Textual Amendments

Modifications etc. (not altering text)

C69Pt. 5 Ch. 3 applied by 2007 c. 30, s. 24(1) (as substituted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 21(3), 58(1)(6); S.I. 2018/78, reg. 3(f))

[F1008CHAPTER 3AU.K.Recovery of listed assets in summary proceedings

Textual Amendments

F1008Pt. 5 Ch. 3A inserted (27.4.2017 for specified purposes, 31.10.2017 for the insertion of ss. 303G, 303H for E.W.S. so far as not already in force, 30.1.2018 for the insertion of s. 303E(4) for E.W.S. so far as not already in force, 16.4.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 15, 58(1)(6); S.I. 2017/991, reg. 2(d); S.I. 2018/78, regs. 2(a), 4(b); S.I. 2021/724, reg. 2(1)(f)

Modifications etc. (not altering text)

C73Pt. 5 Ch. 3A applied (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by 2007 c. 30, s. 24(1) (as substituted by Criminal Finances Act 2017 (c. 22), ss. 21(3), 58(1)(6); S.I. 2018/78, reg. 3(f); S.I. 2021/724, reg. 2(1)(i))

Definition of listed assetU.K.

303B“Listed asset”U.K.

(1)In this Chapter, a “listed asset” means an item of property that falls within one of the following descriptions of property—

(a)precious metals;

(b)precious stones;

(c)watches;

(d)artistic works;

(e)face-value vouchers;

(f)postage stamps.

(2)The Secretary of State may by regulations amend subsection (1)—

(a)by removing a description of property;

(b)by adding a description of tangible personal (or corporeal moveable) property.

(3)The Secretary of State must consult the Scottish Ministers and the Department of Justice before making regulations under subsection (2).

(4)In this section—

(a)“precious metal” means gold, silver or platinum (whether in an unmanufactured or a manufactured state);

(b)“artistic work” means a piece of work falling within section 4(1)(a) of the Copyright, Designs and Patents Act 1988;

(c)“face-value voucher” means a voucher in physical form that represents a right to receive goods or services to the value of an amount stated on it.

SearchesU.K.

303CSearchesU.K.

(1)If a relevant officer is lawfully on any premises and has reasonable grounds for suspecting that there is on the premises a seizable listed asset, the relevant officer may search for the listed asset there.

(2)The powers conferred by subsection (5) are exercisable by a relevant officer if—

(a)the relevant officer has reasonable grounds for suspecting that there is a seizable listed asset in a vehicle,

(b)it appears to the officer that the vehicle is under the control of a person (the suspect) who is in or in the vicinity of the vehicle, and

(c)the vehicle is in a place falling within subsection (3).

(3)The places referred to in subsection (2)(c) are—

(a)a place to which, at the time of the proposed exercise of the powers, the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission, and

(b)any other place to which at that time people have ready access but which is not a dwelling.

(4)But if the vehicle is in a garden or yard or other land occupied with and used for the purposes of a dwelling, the relevant officer may exercise the powers conferred by subsection (5) only if the relevant officer has reasonable grounds for believing—

(a)that the suspect does not reside in the dwelling, and

(b)that the vehicle is not in the place in question with the express or implied permission of a person who resides in the dwelling.

(5)The powers conferred by this subsection are—

(a)power to require the suspect to permit entry to the vehicle;

(b)power to require the suspect to permit a search of the vehicle.

(6)If a relevant officer has reasonable grounds for suspecting that a person (the suspect) is carrying a seizable listed asset, the relevant officer may require the suspect—

(a)to permit a search of any article the suspect has with him or her;

(b)to permit a search of the suspect's person.

(7)The powers conferred by subsections (5) and (6) are exercisable only so far as the relevant officer thinks it necessary or expedient.

(8)A relevant officer may—

(a)in exercising powers conferred by subsection (5), detain the vehicle for so long as is necessary for their exercise;

(b)in exercising powers conferred by subsection (6)(b), detain the suspect for so long as is necessary for their exercise.

(9)In this Chapter, a “relevant officer” means—

(a)an officer of Revenue and Customs,

(b)a constable,

(c)an SFO officer, or

(d)an accredited financial investigator who falls within a description specified in an order made for the purposes of this Chapter by the Secretary of State [F1009or the Welsh Ministers] under section 453.

(10)For the purposes of this section a listed asset is a seizable listed asset if—

(a)all or part of it is recoverable property or is intended by any person for use in unlawful conduct, and

(b)the value of the asset, or the part of it that falls within paragraph (a), is not less than the minimum value.

(11)Where a power conferred by this section is being exercised in respect of more than one seizable listed asset, this section is to apply as if the value of each asset or (as the case may be) part of an asset was equal to the aggregate value of all of those assets or parts.

Textual Amendments

Modifications etc. (not altering text)

303DSearches: supplemental provisionU.K.

(1)The powers conferred by section 303C—

(a)are exercisable only so far as reasonably required for the purpose of finding a listed asset;

(b)include the power to carry out (or arrange for the carrying out of) tests on anything found during the course of the search for the purpose of establishing whether it is a listed asset;

(c)are exercisable by an officer of Revenue and Customs only if the officer has reasonable grounds for suspecting that the unlawful conduct in question relates to an assigned matter (within the meaning of the Customs and Excise Management Act 1979);

(d)are exercisable by an SFO officer or an accredited financial investigator only in relation to the following—

(i)premises in England, Wales or Northern Ireland (in the case of section 303C(1));

(ii)vehicles and suspects in England, Wales or Northern Ireland (in the case of section 303C(5) and (8)(a));

(iii)suspects in England, Wales or Northern Ireland (in the case of section 303C(6) and (8)(b)).

(2)Section 303C does not require a person to submit to an intimate search or strip search (within the meaning of section 164 of the Customs and Excise Management Act 1979).

303EPrior approvalU.K.

(1)The powers conferred by section 303C may be exercised only with the appropriate approval unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

(2)The appropriate approval means the approval of a judicial officer or (if that is not practicable in any case) the approval of a senior officer.

(3)A judicial officer means—

(a)in relation to England and Wales and Northern Ireland, a justice of the peace;

(b)in relation to Scotland, the sheriff.

(4)A senior officer means—

(a)in relation to the exercise of a power by an officer of Revenue and Customs, such an officer of a rank designated by the Commissioners for Her Majesty's Revenue and Customs as equivalent to that of a senior police officer;

(b)in relation to the exercise of a power by a constable, a senior police officer;

(c)in relation to the exercise of a power by an SFO officer, the Director of the Serious Fraud Office;

(d)in relation to the exercise of a power by a National Crime Agency officer, the Director General of the National Crime Agency or any other National Crime Agency officer authorised by the Director General (whether generally or specifically) for this purpose;

(e)in relation to the exercise of a power by an accredited financial investigator who is—

(i)a member of the civilian staff of a police force in England and Wales (including the metropolitan police force), within the meaning of Part 1 of the Police Reform and Social Responsibility Act 2011,

(ii)a member of staff of the City of London police force, or

(iii)a member of staff of the Police Service of Northern Ireland,

a senior police officer;

(f)in relation to the exercise of a power by an accredited financial investigator who does not fall within any of the preceding paragraphs, an accredited financial investigator who falls within a description specified in an order made for this purpose by the Secretary of State [F1010or the Welsh Ministers] under section 453.

(5)A senior police officer means a police officer of at least the rank of inspector.

(6)If the powers are exercised without the approval of a judicial officer in a case where—

(a)no property is seized by virtue of section 303J, or

(b)any property so seized is not detained for more than 48 hours (calculated in accordance with section 303K(5)),

the relevant officer who exercised the power must give a written report to the appointed person.

(7)But the duty in subsection (6) does not apply if, during the course of exercising the powers conferred by section 303C, the relevant officer seizes cash by virtue of section 294 [F1011or property by virtue of section 303Z26 or 303Z29] and the cash [F1012or property] so seized is detained for more than 48 hours (calculated in accordance with section 295(1B) [F1013, 303Z27(3) or (as the case may be) 303Z31(3)]).

(8)A report under subsection (6) must give particulars of the circumstances which led the relevant officer to believe that—

(a)the powers were exercisable, and

(b)it was not practicable to obtain the approval of a judicial officer.

(9)In this section and section 303F, the appointed person means—

(a)in relation to England and Wales, a person appointed by the Secretary of State;

(b)in relation to Scotland, a person appointed by the Scottish Ministers;

(c)in relation to Northern Ireland, a person appointed by the Department of Justice.

(10)The appointed person must not be a person employed under or for the purposes of a government department or of the Scottish Administration; and the terms and conditions of the person's appointment, including any remuneration or expenses to be paid to the person, are to be determined by the person making the appointment.

Textual Amendments

F1011Words in s. 303E(7) inserted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 6(4)(a); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

F1012Words in s. 303E(7) inserted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 6(4)(b); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

F1013Words in s. 303E(7) inserted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 6(4)(c); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

Modifications etc. (not altering text)

303FReport on exercise of powersU.K.

(1)As soon as possible after the end of each financial year, the appointed person must prepare a report for that year.

(2)“Financial year” means—

(a)the period beginning with the day on which section 15 of the Criminal Finances Act 2017 (which inserted this section) came into force and ending with the next 31 March (which is the first financial year), and

(b)each subsequent period of 12 months beginning with 1 April.

(3)The report must give the appointed person's opinion as to the circumstances and manner in which the powers conferred by section 303C are being exercised in cases where the relevant officer who exercised them is required to give a report under section 303E(6).

(4)In the report, the appointed person may make any recommendations he or she considers appropriate.

(5)The appointed person must send a copy of the report to whichever of the Secretary of State, the Scottish Administration or the Department of Justice appointed the person.

(6)The Secretary of State must lay a copy of any report the Secretary of State receives under this section before Parliament and arrange for it to be published.

(7)The Scottish Ministers must lay a copy of any report they receive under this section before the Scottish Parliament and arrange for it to be published.

(8)The Department of Justice must lay a copy of any report it receives under this section before the Northern Ireland Assembly and arrange for it to be published.

(9)Section 41(3) of the Interpretation Act (Northern Ireland) 1954 applies for the purposes of subsection (8) in relation to the laying of a copy of a report as it applies in relation to the laying of a statutory document under an enactment.

303GCode of practice: Secretary of StateU.K.

(1)The Secretary of State must make a code of practice in connection with the exercise by officers of Revenue and Customs, SFO officers and (in relation to England and Wales) constables and accredited financial investigators of the powers conferred by section 303C.

(2)Where the Secretary of State proposes to issue a code of practice, the Secretary of State must—

(a)publish a draft,

(b)consider any representations made about the draft by the Scottish Ministers, the Department of Justice or any other person, and

(c)if the Secretary of State thinks it appropriate, modify the draft in the light of any such representations.

(3)The Secretary of State must also consult the Attorney General about the draft in its application to the exercise of powers by SFO officers and the Director of the Serious Fraud Office.

(4)The Secretary of State must lay a draft of the code before Parliament.

(5)When the Secretary of State has laid a draft of the code before Parliament, the Secretary of State may bring it into operation by regulations.

(6)The Secretary of State may revise the whole or any part of the code and issue the code as revised; and subsections (2) to (5) apply to such a revised code as they apply to the original code.

(7)A failure by an officer of Revenue and Customs, an SFO officer, a constable or an accredited financial investigator to comply with a provision of the code does not of itself make him or her liable to criminal or civil proceedings.

(8)The code is admissible in evidence in criminal or civil proceedings and is to be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant.

303HCode of practice: ScotlandU.K.

(1)The Scottish Ministers must make a code of practice in connection with the exercise by constables in relation to Scotland of the powers conferred by section 303C.

(2)Where the Scottish Ministers propose to issue a code of practice, they must—

(a)publish a draft,

(b)consider any representations made about the draft, and

(c)if they think it appropriate, modify the draft in the light of any such representations.

(3)The Scottish Ministers must lay a draft of the code before the Scottish Parliament.

(4)When the Scottish Ministers have laid a draft of the code before the Scottish Parliament, they may bring it into operation by order.

(5)The Scottish Ministers may revise the whole or any part of the code and issue the code as revised; and subsections (2) to (4) apply to such a revised code as they apply to the original code.

(6)A failure by a constable to comply with a provision of the code does not of itself make the constable liable to criminal or civil proceedings.

(7)The code is admissible in evidence in criminal or civil proceedings and is to be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant.

303ICode of practice: Northern IrelandU.K.

(1)The Department of Justice must make a code of practice in connection with the exercise by constables and accredited financial investigators, in relation to Northern Ireland, of the powers conferred by section 303C.

(2)Where the Department of Justice proposes to issue a code of practice, it must—

(a)publish a draft,

(b)consider any representations made about the draft, and

(c)if the Department of Justice thinks it appropriate, modify the draft in the light of any such representations.

(3)The Department of Justice must lay a draft of the code before the Northern Ireland Assembly.

(4)When the Department of Justice has laid a draft of the code before the Northern Ireland Assembly, the Department of Justice may bring it into operation by order.

(5)Section 41(3) of the Interpretation Act (Northern Ireland) 1954 applies for the purposes of subsections (3) and (4) in relation to the laying of a draft as it applies in relation to the laying of a statutory document under an enactment.

(6)The Department of Justice may revise the whole or any part of the code and issue the code as revised; and subsections (2) to (5) apply to such a revised code as they apply to the original code.

(7)A failure by a constable or accredited financial investigator to comply with a provision of the code does not of itself make him or her liable to criminal or civil proceedings.

(8)The code is admissible in evidence in criminal or civil proceedings and is to be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant.

Seizure and detentionU.K.

303JSeizure of listed assetsU.K.

(1)A relevant officer may seize any item of property if the relevant officer has reasonable grounds for suspecting that—

(a)it is a listed asset,

(b)it is recoverable property or intended by any person for use in unlawful conduct, and

(c)the value of it is not less than the minimum value.

(2)A relevant officer may also seize any item of property if—

(a)the relevant officer has reasonable grounds for suspecting the item to be a listed asset,

(b)the relevant officer has reasonable grounds for suspecting that part of the item is recoverable property or intended by any person for use in unlawful conduct,

(c)the relevant officer has reasonable grounds for suspecting that the value of the part to which the suspicion relates is not less than the minimum value, and

(d)it is not reasonably practicable to seize only that part.

(3)Where the powers conferred by this section are being exercised by a relevant officer in respect of more than one item of property, this section is to apply as if the value of each item was equal to the aggregate value of all of those items.

(4)The references in subsection (3) to the value of an item are to be read as including references to the value of part of an item where the power conferred by subsection (2) is being exercised (whether alone or in conjunction with the power conferred by subsection (1)).

(5)This section does not authorise the seizure by an SFO officer or an accredited financial investigator of an item of property found in Scotland.

303KInitial detention of seized propertyU.K.

(1)Property seized under section 303J may be detained for an initial period of 6 hours.

(2)Property seized under section 303J may be detained beyond the initial period of 6 hours only if its continued detention is authorised by a senior officer.

(3)If the continued detention of property seized under section 303J is authorised under subsection (2), the property may be detained for a further period of 42 hours.

(4)Subsections (1) to (3) authorise the detention of property only for so long as a relevant officer continues to have reasonable grounds for suspicion in relation to that property as described in section 303J(1) or (2) (as the case may be).

(5)In calculating a period of hours for the purposes of this section, no account shall be taken of—

(a)any Saturday or Sunday,

(b)Christmas Day,

(c)Good Friday,

(d)any day that is a bank holiday under the Banking and Financial Dealings Act 1971 in the part of the United Kingdom within which the property is seized, or

(e)any day prescribed under section 8(2) of the Criminal Procedure (Scotland) Act 1995 as a court holiday in a sheriff court in the sheriff court district within which the property is seized.

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

303LFurther detention of seized propertyU.K.

(1)The period for which property seized under section 303J, or any part of that property, may be detained may be extended by an order made—

(a)in England and Wales or Northern Ireland, by a magistrates' court;

(b)in Scotland, by the sheriff.

(2)An order under subsection (1) may not authorise the detention of any property—

(a)beyond the end of the period of 6 months beginning with the date of the order, and

(b)in the case of any further order under this section, beyond the end of the period of 2 years beginning with the date of the first order.

(3)A justice of the peace may also exercise the power of a magistrates' court to make the first order under subsection (1) extending a particular period of detention.

(4)An application for an order under subsection (1) may be made—

(a)in relation to England and Wales and Northern Ireland, by a person specified in subsection (5);

(b)in relation to Scotland, by the Scottish Ministers in connection with their functions under section 303O or by a procurator fiscal.

(5)The persons referred to in subsection (4)(a) are—

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

(b)a constable,

(c)an SFO officer, or

(d)an accredited financial investigator who falls within a description specified in an order made for the purposes of this Chapter by the Secretary of State [F1014or the Welsh Ministers] under section 453.

(6)The court, sheriff or justice may make the order if satisfied, in relation to the item of property to be further detained, that—

(a)it is a listed asset,

(b)the value of it is not less than the minimum value, and

(c)condition 1 or condition 2 is met.

(7)Subsection (6)(b) does not apply where the application is for a second or subsequent order under this section.

(8)Condition 1 is that there are reasonable grounds for suspecting that the property is recoverable property and that either—

(a)its continued detention is justified while its derivation is further investigated or consideration is given to bringing (in the United Kingdom or elsewhere) proceedings against any person for an offence with which the property is connected, or

(b)proceedings against any person for an offence with which the property is connected have been started and have not been concluded.

(9)Condition 2 is that there are reasonable grounds for suspecting that the property is intended to be used in unlawful conduct and that either—

(a)its continued detention is justified while its intended use is further investigated or consideration is given to bringing (in the United Kingdom or elsewhere) proceedings against any person for an offence with which the property is connected, or

(b)proceedings against any person for an offence with which the property is connected have been started and have not been concluded.

(10)Where an application for an order under subsection (1) relates to an item of property seized under section 303J(2), the court, sheriff or justice may make the order if satisfied that—

(a)the item of property is a listed asset,

(b)condition 1 or 2 is met in respect of part of the item,

(c)the value of that part is not less than the minimum value, and

(d)it is not reasonably practicable to detain only that part.

(11)Subsection (10)(c) does not apply where the application is for a second or subsequent order under this section.

(12)Where an application for an order under subsection (1) is made in respect of two or more items of property that were seized at the same time and by the same person, this section is to apply as if the value of each item was equal to the aggregate value of all of those items.

(13)The references in subsection (12) to the value of an item are to be read as including references to the value of part of an item where subsection (10) applies in relation to one or more of the items in respect of which the application under subsection (1) is made.

(14)An order under subsection (1) must provide for notice to be given to persons affected by it.

Textual Amendments

Modifications etc. (not altering text)

303MTesting and safekeeping of property seized under section 303JU.K.

(1)A relevant officer may carry out (or arrange for the carrying out of) tests on any item of property seized under section 303J for the purpose of establishing whether it is a listed asset.

(2)A relevant officer must arrange for any item of property seized under section 303J to be safely stored throughout the period during which it is detained under this Chapter.

303NRelease of detained propertyU.K.

(1)This section applies while any property is detained under section 303K or 303L.

(2)A magistrates' court or (in Scotland) the sheriff may direct the release of the whole or any part of the property if the following condition is met.

(3)The condition is that the court or sheriff is satisfied, on an application by the person from whom the property was seized, that the conditions in section 303K or 303L (as the case may be) for the detention of the property are no longer met in relation to the property to be released.

(4)A relevant officer or (in Scotland) a procurator fiscal may, after notifying the magistrates' court, sheriff or justice under whose order property is being detained, release the whole or any part of it if satisfied that the detention of the property to be released is no longer justified.

ForfeitureU.K.

303OForfeitureU.K.

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

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

(b)to the sheriff by the Scottish Ministers.

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

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

(b)a constable,

(c)an SFO officer, or

(d)an accredited financial investigator who falls within a description specified in an order made for the purposes of this Chapter by the Secretary of State [F1015or the Welsh Ministers] under section 453.

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

(a)the property is a listed asset, and

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

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

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

(b)any related proceedings under this Chapter.

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

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

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

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

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

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

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

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

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

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

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

Textual Amendments

Modifications etc. (not altering text)

303PAssociated and joint propertyU.K.

(1)Sections 303Q and 303R apply if—

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

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

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

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

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

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

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

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

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

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

(a)any interest in the forfeitable property;

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

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

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

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

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

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

303QAgreements about associated and joint propertyU.K.

(1)Where—

(a)this section applies, and

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

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

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

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

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

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

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

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

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

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

(b)any related proceedings under this Chapter.

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

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

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

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

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

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

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

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

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

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

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

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

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

(c)third, it must be paid—

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

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

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

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

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

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

(2)The “relevant court” is—

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

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

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

(a)the property is a listed asset, and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b)the circumstances are exceptional,

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

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

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

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

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

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

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

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

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

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

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

(3)An appeal under this section lies—

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

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

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

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

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

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

303TRealisation of forfeited propertyU.K.

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

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

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

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

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

303UProceeds of realisationU.K.

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

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

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

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

(d)fourth, they must be paid—

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

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

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

SupplementaryU.K.

303VVictims and other ownersU.K.

(1)A person who claims that any property detained under this Chapter, or any part of it, belongs to him or her may apply for the property or part to be released.

(2)An application under subsection (1) is to be made—

(a)in England and Wales or Northern Ireland, to a magistrates' court;

(b)in Scotland, to the sheriff.

(3)The application may be made in the course of proceedings under section 303L or 303O or at any other time.

(4)The court or sheriff may order the property to which the application relates to be released to the applicant if it appears to the court or sheriff that—

(a)the applicant was deprived of the property to which the application relates, or of property which it represents, by unlawful conduct,

(b)the property the applicant was deprived of was not, immediately before the applicant was deprived of it, recoverable property, and

(c)the property belongs to the applicant.

(5)If subsection (6) applies, the court or sheriff may order the property to which the application relates to be released to the applicant or to the person from whom it was seized.

(6)This subsection applies where—

(a)the applicant is not the person from whom the property to which the application relates was seized,

(b)it appears to the court or sheriff that that property belongs to the applicant,

(c)the court or sheriff is satisfied that the release condition is met in relation to that property, and

(d)no objection to the making of an order under subsection (5) has been made by the person from whom that property was seized.

(7)The release condition is met—

(a)in relation to property detained under section 303K or 303L, if the conditions in section 303K or (as the case may be) 303L for the detention of the property are no longer met, and

(b)in relation to property detained under section 303O, if the court or sheriff decides not to make an order under that section in relation to the property.

303WCompensationU.K.

(1)If no order under section 303O, 303Q or 303R is made in respect of any property detained under this Chapter, the person to whom the property belongs or from whom it was seized may make an application for compensation.

(2)An application under subsection (1) is to be made—

(a)in England and Wales or Northern Ireland, to a magistrates' court;

(b)in Scotland, to the sheriff.

(3)If the court or sheriff is satisfied that the applicant has suffered loss as a result of the detention of the property and that the circumstances are exceptional, the court or sheriff may order compensation to be paid to the applicant.

(4)The amount of compensation to be paid is the amount the court or sheriff thinks reasonable, having regard to the loss suffered and any other relevant circumstances.

(5)If the property was seized by an officer of Revenue and Customs, the compensation is to be paid by the Commissioners for Her Majesty's Revenue and Customs.

(6)If the property was seized by a constable, the compensation is to be paid as follows—

(a)in the case of a constable of a police force in England and Wales, it is to be paid out of the police fund from which the expenses of the police force are met;

(b)in the case of a constable of the Police Service of Scotland, it is to be paid by the Scottish Police Authority;

(c)in the case of a police officer within the meaning of the Police (Northern Ireland) Act 2000, it is to be paid out of money provided by the Chief Constable of the Police Service of Northern Ireland.

(7)If the property was seized by an SFO officer, the compensation is to be paid by the Director of the Serious Fraud Office.

(8)If the property was seized by a National Crime Agency officer, the compensation is to be paid by the National Crime Agency.

(9)If the property was seized by an accredited financial investigator who was not an officer of Revenue and Customs, a constable, an SFO officer or a National Crime Agency officer, the compensation is to be paid as follows—

(a)in the case of an investigator who was—

(i)a member of the civilian staff of a police force (including the metropolitan police force), within the meaning of Part 1 of the Police Reform and Social Responsibility Act 2011, or

(ii)a member of staff of the City of London police force,

it is to be paid out of the police fund from which the expenses of the police force are met,

(b)in the case of an investigator who was a member of staff of the Police Service of Northern Ireland, it is to be paid out of money provided by the Chief Constable of the Police Service of Northern Ireland,

(c)in the case of an investigator who was a member of staff of a department of the Government of the United Kingdom, it is to be paid by the Minister of the Crown in charge of the department or by the department,

(d)in the case of an investigator who was a member of staff of a Northern Ireland department, it is to be paid by the department,

(e)in the case of an investigator who was exercising a function of the Welsh Revenue Authority, it is to be paid by the Welsh Revenue Authority, and

(f)in any other case, it is to be paid by the employer of the investigator.

(10)The Secretary of State may by regulations amend subsection (9).

(11)The power in subsection (10) is exercisable by the Department of Justice (and not by the Secretary of State) so far as it may be used to make provision which could be made by an Act of the Northern Ireland Assembly without the consent of the Secretary of State (see sections 6 to 8 of the Northern Ireland Act 1998.)

(12)If an order under section 303O, 303Q or 303R is made in respect only of a part of any property detained under this Chapter, this section has effect in relation to the other part.

303XPowers for prosecutors to appear in proceedingsU.K.

(1)The Director of Public Prosecutions or the Director of Public Prosecutions for Northern Ireland may appear for a constable or an accredited financial investigator in proceedings under this Chapter if the Director—

(a)is asked by, or on behalf of, a constable or (as the case may be) an accredited financial investigator to do so, and

(b)considers it appropriate to do so.

(2)The Director of Public Prosecutions may appear for the Commissioners for Her Majesty's Revenue and Customs or an officer of Revenue and Customs in proceedings under this Chapter if the Director—

(a)is asked by, or on behalf of, the Commissioners for Her Majesty's Revenue and Customs or (as the case may be) an officer of Revenue and Customs to do so, and

(b)considers it appropriate to do so.

(3)The Directors may charge fees for the provision of services under this section.

(4)The references in subsection (1) to an accredited financial investigator do not include an accredited financial investigator who is an officer of Revenue and Customs but the references in subsection (2) to an officer of Revenue and Customs do include an accredited financial investigator who is an officer of Revenue and Customs.

303Y“The minimum value”U.K.

(1)For the purposes of this Chapter, “the minimum value” is £1,000.

(2)The Secretary of State may by regulations amend the amount for the time being specified in subsection (1).

(3)The Secretary of State must consult the Scottish Ministers and the Department of Justice before making regulations under subsection (2).

303ZFinancial investigatorsU.K.

Where an accredited financial investigator of a particular description—

(a)applies for an order under section 303L,

(b)applies for forfeiture under section 303O, or

(c)brings an appeal under, or relating to, this Chapter,

any subsequent step in the application or appeal, or any further application or appeal relating to the same matter, may be taken, made or brought by a different accredited financial investigator of the same description.]

[F1016CHAPTER 3BU.K.Forfeiture of money held in [F1017certain] accounts

Textual Amendments

F1016Pt. 5 Ch. 3B inserted (27.4.2017 for specified purposes, 30.1.2018 for the insertion of ss. 303Z2(4), 303Z10 for E.W.S. so far as not already in force, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 16, 58(1)(6) (as amended (N.I.) on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)) by S.I. 2019/742, regs. 1, 109(3)); S.I. 2018/78, regs. 2(b), 3(d); S.I. 2021/724, reg. 2(1)(g)

F1017Word in Pt. 5 Ch. 3B heading substituted (27.4.2017 retrospective for E.W.S, 28.6.2021 for N.I.) by Financial Services Act 2021 (c. 22), s. 33(2)(3), Sch. 12 para. 12 (with s. 33(4)); S.I. 2021/739, reg. 2

Modifications etc. (not altering text)

C78Pt. 5 Ch. 3B applied (31.1.2018 for E.W.S. in so far as not already in force, 27.4.2017 for specified purposes, 28.6.2021 for N.I. in so far as not already in force) by 2007 c. 30, s. 24(1) (as substituted by Criminal Finances Act 2017 (c. 22), ss. 21(3), 58(1)(6); S.I. 2018/78, reg. 3(f); S.I. 2021/724, reg. 2(1)(i))

Freezing of [F1018certain] accountsU.K.

Textual Amendments

F1018Word in s. 303Z1 cross-heading substituted (27.4.2017 retrospective for E.W.S, 28.6.2021 for N.I.) by Financial Services Act 2021 (c. 22), s. 33(2)(3), Sch. 12 para. 13 (with s. 33(4)); S.I. 2021/739, reg. 2

303Z1Application for account freezing orderU.K.

(1)This section applies if an enforcement officer has reasonable grounds for suspecting that money held in an account maintained with a [F1019relevant financial institution]—

(a)is recoverable property, or

(b)is intended by any person for use in unlawful conduct.

(2)Where this section applies (but subject to section 303Z2) the enforcement officer may apply to the relevant court for an account freezing order in relation to the account in which the money is held.

(3)For the purposes of this Chapter—

(a)an account freezing order is an order that, subject to any exclusions (see section 303Z5), prohibits each person by or for whom the account to which the order applies is operated from making withdrawals or payments from the account;

(b)an account is operated by or for a person if the person is an account holder or a signatory or identified as a beneficiary in relation to the account.

(4)An application for an account freezing order may be made without notice if the circumstances of the case are such that notice of the application would prejudice the taking of any steps under this Chapter to forfeit money that is recoverable property or intended by any person for use in unlawful conduct.

(5)The money referred to in subsection (1) may be all or part of the credit balance of the account.

F1020(5A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1021(5B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)In this Chapter—

  • “bank” has the meaning given by section 303Z7;

  • “building society” has the same meaning as in the Building Societies Act 1986;

  • [F1022“electronic money institution” has the same meaning as in the Electronic Money Regulations 2011 (S.I. 2011/99) (see regulation 2 of those Regulations);]

  • “enforcement officer” means—

    (a)

    an officer of Revenue and Customs,

    (b)

    a constable,

    (c)

    an SFO officer, or

    (d)

    an accredited financial investigator who falls within a description specified in an order made for the purposes of this Chapter by the Secretary of State [F1023or the Welsh Ministers] under section 453;

  • “the minimum amount” has the meaning given by section 303Z8;

  • [F1022“payment institution” means an authorised payment institution or a small payment institution (each as defined in regulation 2 of the Payment Services Regulations 2017 (S.I. 2017/752));]

  • “relevant court”—

    (a)

    in England and Wales and Northern Ireland, means a magistrates' court, and

    (b)

    in Scotland, means the sheriff.

  • [F1024“relevant financial institution” means—

    (a)

    a bank,

    (b)

    a building society,

    (c)

    an electronic money institution, or

    (d)

    a payment institution.]

Textual Amendments

F1019Words in s. 303Z1(1) substituted (27.4.2017 (retrospectively except as it extends to N.I.), 28.6.2021 for N.I.) by Financial Services Act 2021 (c. 22), s. 33(2)(3), Sch. 12 para. 14(2) (with s. 33(4)); S.I. 2021/739, reg. 2

F1022Words in s. 303Z1(6) inserted (retrospectively) by Financial Services Act 2021 (c. 22), s. 33(2)(3), Sch. 12 para. 14(5) (with s. 33(4))

Modifications etc. (not altering text)

303Z2Restrictions on making of application under section 303Z1U.K.

(1)The power to apply for an account freezing order is not exercisable if the money in relation to which the enforcement officer's suspicion exists is less in amount than the minimum amount.

(2)An enforcement officer may not apply for an account freezing order unless the officer is a senior officer or is authorised to do so by a senior officer.

(3)The power to apply for an account freezing order is not exercisable by an SFO officer, or by an accredited financial investigator, in relation to an account maintained with a branch of a [F1025relevant financial institution] that is in Scotland.

(4)For the purposes of this Chapter, a “senior officer” is —

(a)an officer of Revenue and Customs of a rank designated by the Commissioners for Her Majesty's Revenue and Customs as equivalent to that of a senior police officer,

(b)a senior police officer,

(c)the Director of the Serious Fraud Office,

(d)the Director General of the National Crime Agency or any other National Crime Agency officer authorised by the Director General (whether generally or specifically) for this purpose, or

(e)an accredited financial investigator who falls within a description specified in an order made for the purposes of this Chapter by the Secretary of State [F1026or the Welsh Ministers] under section 453.

(5)In subsection (4), a “senior police officer” means a police officer of at least the rank of inspector.

Textual Amendments

F1025Words in s. 303Z2(3) substituted (retrospectively) by Financial Services Act 2021 (c. 22), s. 33(2)(3), Sch. 12 para. 15 (with s. 33(4))

Modifications etc. (not altering text)

C80S. 303Z2(4)(e) modified by S.I. 2018/196, Sch. para. 11C (as inserted (E.W.) (20.7.2018) by The Proceeds of Crime Act 2002 (References to Welsh Revenue Authority Financial Investigators) (Amendment) Order 2018 (S.I. 2018/767), arts. 1(2), 2(3)(a))

303Z3Making of account freezing orderU.K.

(1)This section applies where an application for an account freezing order is made under section 303Z1 in relation to an account.

(2)The relevant court may make the order if satisfied that there are reasonable grounds for suspecting that money held in the account (whether all or part of the credit balance of the account)—

(a)is recoverable property, or

(b)is intended by any person for use in unlawful conduct.

(3)An account freezing order ceases to have effect at the end of the period specified in the order (which may be varied under section 303Z4) unless it ceases to have effect at an earlier or later time in accordance with the provision made by sections 303Z9(6)(c), 303Z11(2) to (7), 303Z14(6) to (8) and 303Z15.

(4)The period specified by the relevant court for the purposes of subsection (3) (whether when the order is first made or on a variation under section 303Z4) may not exceed the period of 2 years, starting with the day on which the account freezing order is (or was) made.

(5)An account freezing order must provide for notice to be given to persons affected by the order.

303Z4Variation and setting aside of account freezing orderU.K.

(1)The relevant court may at any time vary or set aside an account freezing order on an application made by—

(a)an enforcement officer, or

(b)any person affected by the order.

(2)But an enforcement officer may not make an application under subsection (1) unless the officer is a senior officer or is authorised to do so by a senior officer.

(3)Before varying or setting aside an account freezing order the court must (as well as giving the parties to the proceedings an opportunity to be heard) give such an opportunity to any person who may be affected by its decision.

(4)In relation to Scotland, the references in this section to setting aside an order are to be read as references to recalling it.

303Z5ExclusionsU.K.

(1)The power to vary an account freezing order includes (amongst other things) power to make exclusions from the prohibition on making withdrawals or payments from the account to which the order applies.

(2)Exclusions from the prohibition may also be made when the order is made.

(3)An exclusion may (amongst other things) make provision for the purpose of enabling a person by or for whom the account is operated—

(a)to meet the person's reasonable living expenses, or

(b)to carry on any trade, business, profession or occupation.

(4)An exclusion may be made subject to conditions.

(5)Where a magistrates' court exercises the power to make an exclusion for the purpose of enabling a person to meet legal expenses that the person has incurred, or may incur, in respect of proceedings under this Part, it must ensure that the exclusion—

(a)is limited to reasonable legal expenses that the person has reasonably incurred or that the person reasonably incurs,

(b)specifies the total amount that may be released for legal expenses in pursuance of the exclusion, and

(c)is made subject to the same conditions as would be the required conditions (see section 286A) if the order had been made under section 245A (in addition to any conditions imposed under subsection (4)).

(6)A magistrates' court, in deciding whether to make an exclusion for the purpose of enabling a person to meet legal expenses in respect of proceedings under this Part—

(a)must have regard to the desirability of the person being represented in any proceedings under this Part in which the person is a participant, and

(b)must disregard the possibility that legal representation of the person in any such proceedings might, were an exclusion not made—

(i)be made available under arrangements made for the purposes of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or

(ii)be funded by the Northern Ireland Legal Services Commission.

(7)The sheriff's power to make exclusions may not be exercised for the purpose of enabling any person to meet any legal expenses in respect of proceedings under this Part.

(8)The power to make exclusions must, subject to subsection (6), be exercised with a view to ensuring, so far as practicable, that there is not undue prejudice to the taking of any steps under this Chapter to forfeit money that is recoverable property or intended by any person for use in unlawful conduct.

303Z6Restriction on proceedings and remediesU.K.

(1)If a court in which proceedings are pending in respect of an account maintained with a [F1027relevant financial institution] is satisfied that an account freezing order has been applied for or made in respect of the account, it may either stay the proceedings or allow them to continue on any terms it thinks fit.

(2)Before exercising the power conferred by subsection (1), the court must (as well as giving the parties to any of the proceedings concerned an opportunity to be heard) give such an opportunity to any person who may be affected by the court's decision.

(3)In relation to Scotland, the reference in subsection (1) to staying the proceedings is to be read as a reference to sisting the proceedings.

Textual Amendments

F1027Words in s. 303Z6(1) substituted (27.4.2017 (retrospectively except as it extends to N.I.), 28.6.2021 for N.I.) by Financial Services Act 2021 (c. 22), s. 33(2)(3), Sch. 12 para. 16 (with s. 33(4)); S.I. 2021/739, reg. 2

303Z7“Bank”U.K.

(1)“Bank” means an authorised deposit-taker, other than a building society, that has its head office or a branch in the United Kingdom.

(2)In subsection (1), “authorised deposit-taker” means—

(a)a person who has permission under Part 4A of the Financial Services and Markets Act 2000 to accept deposits;

(b)a person who—

(i)is specified, or is within a class of persons specified, by an order under section 38 of that Act (exemption orders), and

(ii)accepts deposits;

(c)[F1028an EEA firm of the kind mentioned in paragraph 5(b) of Schedule 3 to that Act that has permission under paragraph 15 of that Schedule (as a result of qualifying for authorisation under paragraph 12(1) of that Schedule) to accept deposits.]

(3)A reference in subsection (2) to a person [F1029or firm] with permission to accept deposits does not include a person [F1029or firm] with permission to do so only for the purposes of, or in the course of, an activity other than accepting deposits.

Textual Amendments

303Z8“The minimum amount”U.K.

(1)“The minimum amount” is £1,000.

(2)The Secretary of State may by regulations amend the amount for the time being specified in subsection (1).

(3)The Secretary of State must consult the Scottish Ministers and the Department of Justice before making regulations under subsection (2).

(4)For the purposes of this Chapter the amount of any money held in an account maintained with a [F1030relevant financial institution] in a currency other than sterling must be taken to be its sterling equivalent, calculated in accordance with the prevailing rate of exchange.

Textual Amendments

F1030Words in s. 303Z8(4) substituted (27.4.2017 (retrospectively except as it extends to N.I.), 28.6.2021 for N.I.) by Financial Services Act 2021 (c. 22), s. 33(2)(3), Sch. 12 para. 17 (with s. 33(4)); S.I. 2021/739, reg. 2

Account forfeiture notices (England and Wales and Northern Ireland)U.K.

303Z9Account forfeiture noticeU.K.

(1)This section applies while an account freezing order made by a magistrates' court has effect.

In this section the account to which the order applies is “the frozen account”.

(2)A senior officer may give a notice for the purpose of forfeiting money held in the frozen account (whether all or part of the credit balance of the account) if satisfied that the money—

(a)is recoverable property, or

(b)is intended by any person for use in unlawful conduct.

(3)A notice given under subsection (2) is referred to in this Chapter as an account forfeiture notice.

(4)An account forfeiture notice must—

(a)state the amount of money held in the frozen account which it is proposed be forfeited,

(b)confirm that the senior officer is satisfied as mentioned in subsection (2),

(c)specify a period for objecting to the proposed forfeiture and an address to which any objections must be sent, and

(d)explain that the money will be forfeited unless an objection is received at that address within the period for objecting.

(5)The period for objecting must be at least 30 days starting with the day after the notice is given.

(6)If no objection is made within the period for objecting, and the notice has not lapsed under section 303Z11—

(a)the amount of money stated in the notice is forfeited (subject to section 303Z12),

(b)the [F1031relevant financial institution] with which the frozen account is maintained must transfer that amount of money into an interest-bearing account nominated by an enforcement officer, and

(c)immediately after the transfer has been made, the account freezing order made in relation to the frozen account ceases to have effect.

(7)An objection may be made by anyone (whether a recipient of the notice or not).

(8)An objection means a written objection sent to the address specified in the notice; and an objection is made when it is received at the address.

(9)An objection does not prevent forfeiture of the money held in the frozen account under section 303Z14.

Textual Amendments

F1031Words in s. 303Z9(6)(b) substituted (27.4.2017 (retrospectively except as it extends to N.I.), 28.6.2021 for N.I.) by Financial Services Act 2021 (c. 22), s. 33(2)(3), Sch. 12 para. 18 (with s. 33(4)); S.I. 2021/739, reg. 2

303Z10F1016F1017Giving of account forfeiture noticeU.K.

(1)The Secretary of State must make regulations about how an account forfeiture notice is to be given.

(2)The regulations may (amongst other things) provide—

(a)for an account forfeiture notice to be given to such person or persons, and in such manner, as may be prescribed;

(b)for circumstances in which, and the time at which, an account forfeiture notice is to be treated as having been given.

(3)The regulations must ensure that where an account forfeiture notice is given it is, if possible, given to every person to whom notice of the account freezing order was given.

303Z11Lapse of account forfeiture noticeU.K.

(1)An account forfeiture notice lapses if—

(a)an objection is made within the period for objecting specified in the notice under section 303Z9(4)(c),

(b)an application is made under section 303Z14 for the forfeiture of money held in the frozen account, or

(c)an order is made under section 303Z4 setting aside the relevant account freezing order.

(2)If an account forfeiture notice lapses under subsection (1)(a), the relevant account freezing order ceases to have effect at the end of the period of 48 hours starting with the making of the objection (“the 48-hour period”).

This is subject to subsections (3) and (7).

(3)If within the 48-hour period an application is made—

(a)for a variation of the relevant account freezing order under section 303Z4 so as to extend the period specified in the order, or

(b)for forfeiture of money held in the frozen account under section 303Z14,

the order continues to have effect until the relevant time (and then ceases to have effect).

(4)In the case of an application of the kind mentioned in subsection (3)(a), the relevant time means—

(a)if an extension is granted, the time determined in accordance with section 303Z3(3), or

(b)if an extension is not granted, the time when the application is determined or otherwise disposed of.

(5)In the case of an application of the kind mentioned in subsection (3)(b), the relevant time is the time determined in accordance with section 303Z14(6).

(6)If within the 48-hour period it is decided that no application of the kind mentioned in subsection (3)(a) or (b) is to be made, an enforcement officer must, as soon as possible, notify the [F1032relevant financial institution] with which the frozen account is maintained of that decision.

(7)[F1033If the relevant financial institution] is notified in accordance with subsection (6) before the expiry of the 48-hour period, the relevant account freezing order ceases to have effect [F1034on the institution] being so notified.

(8)In relation to an account forfeiture notice—

(a)“the frozen account” is the account in which the money to which the account forfeiture notice relates is held;

(b)“the relevant account freezing order” is the account freezing order made in relation to the frozen account.

(9)In calculating a period of 48 hours for the purposes of this section no account is to be taken of—

(a)any Saturday or Sunday,

(b)Christmas Day,

(c)Good Friday, or

(d)any day that is a bank holiday under the Banking and Financial Dealings Act 1971 in the part of the United Kingdom in which the account freezing order was made.

Textual Amendments

F1032Words in s. 303Z11(6) substituted (27.4.2017 (retrospectively except as it extends to N.I.), 28.6.2021 for N.I.) by Financial Services Act 2021 (c. 22), s. 33(2)(3), Sch. 12 para. 19(2) (with s. 33(4)); S.I. 2021/739, reg. 2

F1033Words in s. 303Z11(7) substituted (27.4.2017 (retrospectively except as it extends to N.I.), 28.6.2021 for N.I.) by Financial Services Act 2021 (c. 22), s. 33(2)(3), Sch. 12 para. 19(3)(a) (with s. 33(4)); S.I. 2021/739, reg. 2

F1034Words in s. 303Z11(7) substituted (27.4.2017 (retrospectively except as it extends to N.I.), 28.6.2021 for N.I.) by Financial Services Act 2021 (c. 22), s. 33(2)(3), Sch. 12 para. 19(3)(b) (with s. 33(4)); S.I. 2021/739, reg. 2

303Z12F1016F1017Application to set aside forfeitureU.K.

(1)A person aggrieved by the forfeiture of money in pursuance of section 303Z9(6)(a) may apply to a magistrates' court for an order setting aside the forfeiture of the money or any part of it.

(2)The application must be made before the end of the period of 30 days starting with the day on which the period for objecting ended (“the 30-day period”).

(3)But the court may give permission for an application to be made after the 30-day period has ended if it thinks that there are exceptional circumstances to explain why the applicant—

(a)failed to object to the forfeiture within the period for objecting, and

(b)failed to make an application within the 30-day period.

(4)On an application under this section the court must consider whether the money to which the application relates could be forfeited under section 303Z14 (ignoring the forfeiture mentioned in subsection (1)).

(5)If the court is satisfied that the money to which the application relates or any part of it could not be forfeited under that section it must set aside the forfeiture of that money or part.

(6)Where the court sets aside the forfeiture of any money—

(a)it must order the release of that money, and

(b)the money is to be treated as never having been forfeited.

(7)Where money is released by virtue of subsection (6)(a), there must be added to the money on its release any interest accrued on it whilst in the account referred to in section 303Z9(6)(b).

303Z13F1016F1017Application of money forfeited under account forfeiture noticeU.K.

(1)Money forfeited in pursuance of section 303Z9(6)(a), and any interest accrued on it whilst in the account referred to in section 303Z9(6)(b), is to be paid into the Consolidated Fund.

(2)But it is not to be paid in—

(a)before the end of the period within which an application under section 303Z12 may be made (ignoring the possibility of an application by virtue of section 303Z12(3)), or

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

Forfeiture ordersU.K.

303Z14Forfeiture orderU.K.

(1)This section applies while an account freezing order has effect.

In this section the account to which the account freezing order applies is “the frozen account”.

(2)An application for the forfeiture of money held in the frozen account (whether all or part of the credit balance of the account) may be made—

(a)to a magistrates' court by a person specified in subsection (3), or

(b)to the sheriff by the Scottish Ministers.

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

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

(b)a constable,

(c)an SFO officer, or

(d)an accredited financial investigator who falls within a description specified in an order made for the purposes of this Chapter by the Secretary of State [F1035or the Welsh Ministers] under section 453.

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

(a)is recoverable property, or

(b)is intended by any person for use in unlawful conduct.

(5)But in the case of recoverable property which belongs to joint tenants, one of whom is an excepted joint owner, an order by a magistrates' court may not apply to so much of it as the court thinks is attributable to the excepted joint owner's share.

(6)Where an application is made under subsection (2), the account freezing order is to continue to have effect until the time referred to in subsection (7)(b) or (8).

But subsections (7)(b) and (8) are subject to section 303Z15.

(7)Where money held in a frozen account is ordered to be forfeited under subsection (4)—

(a)the [F1036relevant financial institution] with which the frozen account is maintained must transfer that amount of money into an interest-bearing account nominated by an enforcement officer, and

(b)immediately after the transfer has been made the account freezing order made in relation to the frozen account ceases to have effect.

(8)Where, other than by the making of an order under subsection (4), an application under subsection (2) is determined or otherwise disposed of, the account freezing order ceases to have effect immediately after that determination or other disposal.

Textual Amendments

F1036Words in s. 303Z14(7)(a) substituted (27.4.2017 (retrospectively except as it extends to N.I.), 28.6.2021 for N.I.) by Financial Services Act 2021 (c. 22), s. 33(2)(3), Sch. 12 para. 20 (with s. 33(4)); S.I. 2021/739, reg. 2

Modifications etc. (not altering text)

C81S. 303Z14(3)(d) modified by S.I. 2018/196, Sch. para. 3B (as inserted (E.W.) (20.7.2018) by The Proceeds of Crime Act 2002 (References to Welsh Revenue Authority Financial Investigators) (Amendment) Order 2018 (S.I. 2018/767), arts. 1(2), 2(2)(b))

303Z15F1016F1017Continuation of account freezing order pending appealU.K.

(1)This section applies where, on an application under subsection (2) of section 303Z14 in relation to an account to which an account freezing order applies, the court or sheriff decides—

(a)to make an order under subsection (4) of that section in relation to part only of the money to which the application related, or

(b)not to make an order under subsection (4) of that section.

(2)The person who made the application under section 303Z14(2) may apply without notice to the court or sheriff that made the decision referred to in subsection (1)(a) or (b) for an order that the account freezing order is to continue to have effect.

(3)Where the court or sheriff makes an order under subsection (2) the account freezing order is to continue to have effect until—

(a)the end of the period of 48 hours starting with the making of the order under subsection (2), or

(b)if within that period of 48 hours an appeal is brought under section 303Z16 against the decision referred to in subsection (1)(a) or (b), the time when the appeal is determined or otherwise disposed of.

(4)Subsection (9) of section 303Z11 applies for the purposes of subsection (3) as it applies for the purposes of that section.

303Z16F1016F1017Appeal against decision under section 303Z14U.K.

(1)Any party to proceedings for an order for the forfeiture of money under section 303Z14 who is aggrieved by an order under that section or by the decision of the court not to make such an order may appeal—

(a)from an order or decision of a magistrates' court in England and Wales, to the Crown Court;

(b)from an order or decision of the sheriff, to the Sheriff Appeal Court;

(c)from an order or decision of a magistrates' court in Northern Ireland, to a county court.

(2)An appeal under subsection (1) must be made before the end of the period of 30 days starting with the day on which the court makes the order or decision.

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

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

(5)Where money is released by virtue of subsection (4), there must be added to the money on its release any interest accrued on it whilst in the account referred to in section 303Z14(7)(a).

303Z17F1016F1017Application of money forfeited under account forfeiture orderU.K.

(1)Money forfeited by an order under section 303Z14, and any interest accrued on it whilst in the account referred to in subsection (7)(a) of that section—

(a)if forfeited by a magistrates' court, is to be paid into the Consolidated Fund, and

(b)if forfeited by the sheriff, is to be paid into the Scottish Consolidated Fund.

(2)But it is not to be paid in—

(a)before the end of the period within which an appeal under section 303Z16 may be made, or

(b)if a person appeals under that section, before the appeal is determined or otherwise disposed of.

SupplementaryU.K.

[F1037303Z17AVictims and other ownersU.K.

(1)A person who claims that money in respect of which an account freezing order has effect belongs to them may apply for the money to be released.

(2)An application under subsection (1) is to be made—

(a)in England and Wales or Northern Ireland, to a magistrates’ court;

(b)in Scotland, to the sheriff.

(3)The application may be made in the course of proceedings under section 303Z3 or 303Z14 or at any other time.

(4)The court or sheriff may, subject to subsection (8), order the money to which the application relates to be released to the applicant if it appears to the court or sheriff that—

(a)the applicant was deprived of the money to which the application relates, or of property which it represents, by unlawful conduct,

(b)the money the applicant was deprived of was not, immediately before the applicant was deprived of it, recoverable property, and

(c)the money belongs to the applicant.

(5)If subsection (6) applies, the court or sheriff may, subject to subsection (8), order the money to which the application relates to be released to the applicant.

(6)This subsection applies where—

(a)the applicant is not the person from whom the money to which the application relates was seized,

(b)it appears to the court or sheriff that the money belongs to the applicant,

(c)the court or sheriff is satisfied that the release condition is met in relation to the money, and

(d)no objection to the making of an order under subsection (5) has been made by the person from whom the money was seized.

(7)The release condition is met—

(a)in relation to money held in a frozen account, if the conditions for making an order under section 303Z3 in relation to the money are no longer met, or

(b)in relation to money held in a frozen account which is subject to an application for forfeiture under section 303Z14, if the court or sheriff decides not to make an order under that section in relation to the money.

(8)Money is not to be released under this section—

(a)if an account forfeiture notice under section 303Z9 is given in respect of the money, until any proceedings in pursuance of the notice (including any proceedings on appeal) are concluded;

(b)if an application for its forfeiture under section 303Z14 is made, until any proceedings in pursuance of the application (including any proceedings on appeal) are concluded.

(9)In relation to money held in an account that is subject to an account freezing order, references in this section to a person from whom money was seized include a reference to a person by or for whom the account was operated immediately before the account freezing order was made.]

Textual Amendments

F1037S. 303Z17A inserted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 6(5); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

303Z18CompensationU.K.

(1)This section applies if—

(a)an account freezing order is made, and

(b)none of the money held in the account to which the order applies is forfeited in pursuance of an account forfeiture notice or by an order under section 303Z14.

(2)Where this section applies a person by or for whom the account to which the account freezing order applies is operated may make an application to the relevant court for compensation.

(3)If the relevant court is satisfied that the applicant has suffered loss as a result of the making of the account freezing order and that the circumstances are exceptional, the relevant court may order compensation to be paid to the applicant.

(4)The amount of compensation to be paid is the amount the relevant court thinks reasonable, having regard to the loss suffered and any other relevant circumstances.

(5)If the account freezing order was applied for by an officer of Revenue and Customs, the compensation is to be paid by the Commissioners for Her Majesty's Revenue and Customs.

(6)If the account freezing order was applied for by a constable, the compensation is to be paid as follows—

(a)in the case of a constable of a police force in England and Wales, it is to be paid out of the police fund from which the expenses of the police force are met;

(b)in the case of a constable of the Police Service of Scotland, it is to be paid by the Scottish Police Authority;

(c)in the case of a police officer within the meaning of the Police (Northern Ireland) Act 2000, it is to be paid out of money provided by the Chief Constable of the Police Service of Northern Ireland.

(7)If the account freezing order was applied for by an SFO officer, the compensation is to be paid by the Director of the Serious Fraud Office.

(8)If the account freezing order was applied for by a National Crime Agency officer, the compensation is to be paid by the National Crime Agency.

(9)If the account freezing order was applied for by an accredited financial investigator who was not an officer of Revenue and Customs, a constable, an SFO officer or a National Crime Agency officer, the compensation is to be paid as follows—

(a)in the case of an investigator who was—

(i)a member of the civilian staff of a police force (including the metropolitan police force), within the meaning of Part 1 of the Police Reform and Social Responsibility Act 2011, or

(ii)a member of staff of the City of London police force,

it is to be paid out of the police fund from which the expenses of the police force are met,

(b)in the case of an investigator who was a member of staff of the Police Service of Northern Ireland, it is to be paid out of money provided by the Chief Constable of the Police Service of Northern Ireland,

(c)in the case of an investigator who was a member of staff of a department of the Government of the United Kingdom, it is to be paid by the Minister of the Crown in charge of the department or by the department,

(d)in the case of an investigator who was a member of staff of a Northern Ireland department, it is to be paid by the department,

(e)in the case of an investigator who was exercising a function of the Welsh Revenue Authority, it is to be paid by the Welsh Revenue Authority, and

(f)in any other case, it is to be paid by the employer of the investigator.

(10)The Secretary of State may by regulations amend subsection (9).

(11)The power in subsection (10) is exercisable by the Department of Justice (and not by the Secretary of State) so far as it may be used to make provision which could be made by an Act of the Northern Ireland Assembly without the consent of the Secretary of State (see sections 6 to 8 of the Northern Ireland Act 1998.)

303Z19Powers for prosecutors to appear in proceedingsU.K.

(1)The Director of Public Prosecutions or the Director of Public Prosecutions for Northern Ireland may appear for a constable or an accredited financial investigator in proceedings under this Chapter if the Director—

(a)is asked by, or on behalf of, a constable or (as the case may be) an accredited financial investigator to do so, and

(b)considers it appropriate to do so.

(2)The Director of Public Prosecutions may appear for the Commissioners for Her Majesty's Revenue and Customs or an officer of Revenue and Customs in proceedings under this Chapter if the Director—

(a)is asked by, or on behalf of, the Commissioners for Her Majesty's Revenue and Customs or (as the case may be) an officer of Revenue and Customs to do so, and

(b)considers it appropriate to do so.

(3)The Directors may charge fees for the provision of services under this section.

(4)The references in subsection (1) to an accredited financial investigator do not include an accredited financial investigator who is an officer of Revenue and Customs but the references in subsection (2) to an officer of Revenue and Customs do include an accredited financial investigator who is an officer of Revenue and Customs.]

[F1038CHAPTER 3CU.K.Recovery of cryptoassets: searches, seizure and detention

Textual Amendments

F1038Pt. 5 Chs. 3C-3F inserted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b)(c), Sch. 9 para. 1; S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

Modifications etc. (not altering text)

DefinitionsU.K.

303Z20DefinitionsU.K.

(1)In this Part—

(a)“cryptoasset” means a cryptographically secured digital representation of value or contractual rights that uses a form of distributed ledger technology and can be transferred, stored or traded electronically;

(b)“crypto wallet” means—

(i)software,

(ii)hardware,

(iii)a physical item, or

(iv)any combination of the things mentioned in sub-paragraphs (i) to (iii),

which is used to store the cryptographic private key that allows cryptoassets to be accessed.

(2)The Secretary of State may by regulations amend the definitions of “cryptoasset” and “crypto wallet” in this section.

(3)The Secretary of State must consult the Scottish Ministers and the Department of Justice before making regulations under subsection (2).

(4)In this Chapter—

(a)“enforcement officer” means—

(i)an officer of Revenue and Customs,

(ii)a constable,

(iii)an SFO officer, or

(iv)an accredited financial investigator who falls within a description specified in an order made for the purposes of this Chapter by the Secretary of State or the Welsh Ministers under section 453;

(b)“senior officer” means—

(i)an officer of Revenue and Customs of a rank designated by the Commissioners for His Majesty’s Revenue and Customs as equivalent to that of a senior police officer of at least the rank of inspector,

(ii)a senior police officer of at least the rank of inspector,

(iii)the Director of the Serious Fraud Office,

(iv)the Director General of the National Crime Agency or any other National Crime Agency officer authorised by the Director General (whether generally or specifically) for this purpose, or

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

SearchesU.K.

303Z21SearchesU.K.

(1)If an enforcement officer—

(a)is lawfully on any premises, and

(b)has reasonable grounds for suspecting that there is on the premises a cryptoasset-related item,

the enforcement officer may search for the cryptoasset-related item there.

(2)For the purposes of this Chapter, a “cryptoasset-related item” is an item of property that is, or that contains or gives access to information that is, likely to assist in the seizure under this Part of cryptoassets that—

(a)are recoverable property, or

(b)are intended by any person for use in unlawful conduct.

(3)The powers conferred by subsection (6) are exercisable by an enforcement officer if—

(a)the enforcement officer has reasonable grounds for suspecting that there is a cryptoasset-related item in a vehicle,

(b)it appears to the officer that the vehicle is under the control of a person (the suspect) who is in or in the vicinity of the vehicle, and

(c)the vehicle is in a place falling within subsection (4).

(4)The places referred to in subsection (3)(c) are—

(a)a place to which, at the time of the proposed exercise of the powers, the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission, and

(b)any other place to which at that time people have ready access but which is not a dwelling.

(5)But if the vehicle is in a garden or yard or other land occupied with and used for the purposes of a dwelling, the enforcement officer may exercise the powers conferred by subsection (6) only if the enforcement officer has reasonable grounds for believing—

(a)that the suspect does not reside in the dwelling, and

(b)that the vehicle is not in the place in question with the express or implied permission of a person who resides in the dwelling.

(6)The powers conferred by this subsection are—

(a)power to require the suspect to permit entry to the vehicle;

(b)power to require the suspect to permit a search of the vehicle.

(7)If an enforcement officer has reasonable grounds for suspecting that a person (the suspect) is carrying a cryptoasset-related item, the enforcement officer may require the suspect—

(a)to permit a search of any article the suspect has with them;

(b)to permit a search of the suspect’s person.

(8)The powers conferred by subsections (6) and (7) are exercisable only so far as the enforcement officer thinks it necessary or expedient.

(9)An enforcement officer may—

(a)in exercising powers conferred by subsection (6), detain the vehicle for so long as is necessary for their exercise;

(b)in exercising powers conferred by subsection (7)(b), detain the suspect for so long as is necessary for their exercise.

(10)The powers conferred by this section are exercisable by an SFO officer or an accredited financial investigator only in relation to the following—

(a)premises in England, Wales or Northern Ireland (in the case of subsection (1));

(b)vehicles and suspects in England, Wales or Northern Ireland (in the case of subsection (6));

(c)suspects in England, Wales or Northern Ireland (in the case of subsection (7)).

303Z22Searches: supplemental provisionU.K.

(1)The powers conferred by section 303Z21 are exercisable only so far as reasonably required for the purpose of finding a cryptoasset-related item.

(2)Section 303Z21 does not require a person to submit to an intimate search or strip search (within the meaning of section 164 of the Customs and Excise Management Act 1979).

303Z23Prior approvalU.K.

(1)The powers conferred by section 303Z21 may be exercised only with the appropriate approval unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

(2)The appropriate approval means the approval of a judicial officer or (if that is not practicable in any case) the approval of a senior officer.

(3)A judicial officer means—

(a)in relation to England and Wales and Northern Ireland, a justice of the peace;

(b)in relation to Scotland, the sheriff.

(4)If the powers are exercised without the approval of a judicial officer in a case where—

(a)no property is seized by virtue of section 303Z26, or

(b)any property so seized is not detained for more than 48 hours (calculated in accordance with section 303Z27),

the relevant officer who exercised the power must give a written report to the appointed person.

(5)But the duty in subsection (4) does not apply if, during the course of exercising the powers conferred by section 303Z21, the enforcement officer seizes cash by virtue of section 294 or property by virtue of section 303J and the cash or property so seized is detained for more than 48 hours (calculated in accordance with section 295(1B) or 303K(5)).

(6)A report under subsection (4) must give particulars of the circumstances which led the relevant officer to believe that—

(a)the powers were exercisable, and

(b)it was not practicable to obtain the approval of a judicial officer.

(7)In this section and in section 303Z24 the appointed person means—

(a)in relation to England and Wales, a person appointed by the Secretary of State;

(b)in relation to Scotland, a person appointed by the Scottish Ministers;

(c)in relation to Northern Ireland, a person appointed by the Department of Justice.

(8)The appointed person must not be a person employed under or for the purposes of a government department or of the Scottish Administration; and the terms and conditions of the person’s appointment, including any remuneration or expenses to be paid to the person, are to be determined by the person making the appointment.

303Z24Report on exercise of powersU.K.

(1)As soon as possible after the end of each financial year, the appointed person must prepare a report for that year.

(2)“Financial year” means—

(a)the period beginning with the day on which this section came into force and ending with the next 31 March (which is the first financial year), and

(b)each subsequent period of 12 months beginning with 1 April.

(3)The report must give the appointed person’s opinion as to the circumstances and manner in which the powers conferred by section 303Z21 are being exercised in cases where the enforcement officer who exercised them is required to give a report under section 303Z23(4).

(4)In the report, the appointed person may make any recommendations they consider appropriate.

(5)The appointed person must send a copy of the report to whichever of the Secretary of State, the Scottish Ministers or the Department of Justice appointed the person.

(6)The Secretary of State must lay a copy of any report the Secretary of State receives under this section before Parliament and arrange for it to be published.

(7)The Scottish Ministers must lay a copy of any report they receive under this section before the Scottish Parliament and arrange for it to be published.

(8)The Department of Justice must lay a copy of any report it receives under this section before the Northern Ireland Assembly and arrange for it to be published.

(9)Section 41(3) of the Interpretation Act (Northern Ireland) 1954 applies for the purposes of subsection (8) in relation to the laying of a copy of a report as it applies in relation to the laying of a statutory document under an enactment.

303Z25Codes of practiceU.K.

(1)The requirements to make codes of practice set out in sections 303G, 303H and 303I apply in relation to the powers conferred by section 303Z21 as they apply in relation to the powers conferred by section 303C.

(2)A requirement in section 303G(2), 303H(2) or 303I(2), as applied by subsection (1), to carry out a relevant action may be satisfied by the carrying out of that action before this section comes into force.

(3)In subsection (2) “relevant action” means any of the following—

(a)publishing a draft code of practice;

(b)considering any representations made about the draft;

(c)modifying the draft in light of any such representations.

(4)The requirement in section 303G(3), as applied by subsection (1), to consult the Attorney General may be satisfied by consultation carried out before this section comes into force.

Seizure and detention of cryptoasset-related itemsU.K.

303Z26Seizure of cryptoasset-related itemsU.K.

(1)An enforcement officer may seize any item of property if the enforcement officer has reasonable grounds for suspecting that the item is a cryptoasset-related item.

(2)If an enforcement officer is lawfully on any premises, the officer may, for the purpose of—

(a)determining whether any property is a cryptoasset-related item, or

(b)enabling or facilitating the seizure under this Chapter of any cryptoasset,

require any information which is stored in any electronic form and accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible, or from which it can readily be produced in a visible and legible form.

(3)But subsection (2) does not authorise an enforcement officer to require a person to produce privileged information.

(4)In this section “privileged information” means information which a person would be entitled to refuse to provide—

(a)in England and Wales and Northern Ireland, on grounds of legal professional privilege in proceedings in the High Court;

(b)in Scotland, on grounds of legal privilege as defined by section 412.

(5)Where an enforcement officer has seized a cryptoasset-related item under subsection (1), the officer may use any information obtained from the item for the purpose of—

(a)identifying or gaining access to a crypto wallet, and

(b)by doing so, enabling or facilitating the seizure under this Chapter of any cryptoassets.

(6)This section does not authorise the seizure by an SFO officer or an accredited financial investigator of an item found in Scotland.

303Z27Initial detention of seized cryptoasset-related itemsU.K.

(1)Property seized under section 303Z26 may be detained for an initial period of 48 hours.

(2)Subsection (1) authorises the detention of property only for so long as an enforcement officer continues to have reasonable grounds for suspicion in relation to that property as described in section 303Z26(1).

(3)In calculating a period of 48 hours for the purposes of this section, no account is to be taken of—

(a)any Saturday or Sunday,

(b)Christmas Day,

(c)Good Friday,

(d)any day that is a bank holiday under the Banking and Financial Dealings Act 1971 in the part of the United Kingdom within which the property is seized, or

(e)any day prescribed by virtue of section 8(2) of the Criminal Procedure (Scotland) Act 1995 as a court holiday in a sheriff court in the sheriff court district within which the property is seized.

303Z28Further detention of seized cryptoasset-related itemsU.K.

(1)The period for which property seized under section 303Z26 may be detained may be extended by an order made—

(a)in England and Wales or Northern Ireland, by a magistrates’ court;

(b)in Scotland, by the sheriff.

(2)An order under subsection (1) may not authorise the detention of any property—

(a)beyond the end of the period of 6 months beginning with the date of the order, and

(b)in the case of any further order under this section, beyond the end of the period of 2 years beginning with the date of the first order; but this is subject to subsection (4).

(3)A justice of the peace may also exercise the power of a magistrates’ court to make the first order under subsection (1).

(4)The court or sheriff may make an order for the period of 2 years in subsection (2)(b) to be extended to a period of up to 3 years beginning with the date of the first order.

(5)An application for an order under subsection (1) or (4) may be made—

(a)in relation to England and Wales and Northern Ireland, by—

(i)the Commissioners for His Majesty’s Revenue and Customs,

(ii)a constable,

(iii)an SFO officer, or

(iv)an accredited financial investigator who falls within a description specified in an order made for the purposes of this Chapter by the Secretary of State or the Welsh Ministers under section 453;

(b)in relation to Scotland, by the Scottish Ministers in connection with their functions under section 303Z41 or by a procurator fiscal.

(6)The court, sheriff or justice may make an order under subsection (1) if satisfied, in relation to the item of property to be further detained, that—

(a)there are reasonable grounds for suspecting that it is a cryptoasset-related item, and

(b)its continued detention is justified.

(7)The court or sheriff may make an order under subsection (4) if satisfied that a request for assistance is outstanding in relation to the item of property to be further detained.

(8)A “request for assistance” in subsection (7) means a request for assistance in obtaining evidence (including information in any form or article) in connection with the property to be further detained, made—

(a)by a judicial authority in the United Kingdom under section 7 of the Crime (International Co-operation) Act 2003,

(b)by an enforcement officer, to an authority exercising equivalent functions in a foreign country,

(c)by the Scottish Ministers in connection with their functions under this Part, to an authority exercising equivalent functions in a foreign country, or

(d)by a person under section 375A or 408A (evidence overseas).

(9)An order under subsection (1) must provide for notice to be given to persons affected by the order.

303Z29Seizure of cryptoassetsU.K.

(1)An enforcement officer may seize cryptoassets if the enforcement officer has reasonable grounds for suspecting that the cryptoassets are recoverable property or intended by any person for use in unlawful conduct.

(2)The circumstances in which a cryptoasset is “seized” for the purposes of subsection (1) include circumstances in which it is transferred into a crypto wallet controlled by the enforcement officer.

(3)This section does not authorise the seizure by an SFO officer or an accredited financial investigator of cryptoassets as a result of information obtained from a cryptoasset-related item found in Scotland.

303Z30Prior authorisation for detention of cryptoassetsU.K.

(1)Where an order is made under section 303Z28 in respect of a cryptoasset-related item, the court, sheriff or justice making the order may, at the same time, make an order to authorise the detention of any cryptoassets that may be seized as a result of information obtained from that item.

(2)An application for an order under this section may be made, by a person mentioned in section 303Z28(5), at the same time as an application for an order under section 303Z28 is made by that person.

(3)The court, sheriff or justice may make an order under this section if satisfied that there are reasonable grounds for suspecting that the cryptoassets that may be seized are recoverable property or intended by any person for use in unlawful conduct.

(4)An order under this section authorises detention of the cryptoassets for the same period of time as the order under section 303Z28 authorises detention in respect of the cryptoasset-related item to which those cryptoassets relate.

303Z31Initial detention of seized cryptoassetsU.K.

(1)Cryptoassets seized under section 303Z29 may be detained for an initial period of 48 hours.

(2)Subsection (1) authorises the detention of property only for so long as an enforcement officer continues to have reasonable grounds for suspicion in relation to those cryptoassets as described in section 303Z29(1).

(3)In calculating a period of 48 hours for the purposes of this section, no account is to be taken of—

(a)any Saturday or Sunday,

(b)Christmas Day,

(c)Good Friday,

(d)any day that is a bank holiday under the Banking and Financial Dealings Act 1971 in the part of the United Kingdom within which the property is seized, or

(e)any day prescribed by virtue of section 8(2) of the Criminal Procedure (Scotland) Act 1995 as a court holiday in a sheriff court in the sheriff court district within which the property is seized.

(4)This section is subject to section 303Z30.

303Z32Further detention of seized cryptoassetsU.K.

(1)The period for which cryptoassets seized under section 303Z29 may be detained may be extended by an order made—

(a)in England and Wales or Northern Ireland, by a magistrates’ court;

(b)in Scotland, by the sheriff.

(2)An order under subsection (1) may not authorise the detention of any cryptoassets—

(a)beyond the end of the period of 6 months beginning with the date of the order, and

(b)in the case of any further order under this section, beyond the end of the period of 2 years beginning with the date of the first order; but this is subject to subsection (4).

(3)A justice of the peace may also exercise the power of a magistrates’ court to make the first order under subsection (1).

(4)The court or sheriff may make an order for the period of 2 years in subsection (2)(b) to be extended to a period of up to 3 years beginning with the date of the first order.

(5)An application for an order under subsection (1) or (4) may be made—

(a)in relation to England and Wales and Northern Ireland, by—

(i)the Commissioners for His Majesty’s Revenue and Customs,

(ii)a constable,

(iii)an SFO officer, or

(iv)an accredited financial investigator who falls within a description specified in an order made for the purposes of this Chapter by the Secretary of State or the Welsh Ministers under section 453,

(b)in relation to Scotland, by the Scottish Ministers in connection with their functions under section 303Z41 or by a procurator fiscal.

(6)The court, sheriff or justice may make an order under subsection (1) if satisfied, in relation to the cryptoassets to be further detained, that there are reasonable grounds for suspecting that the cryptoassets are recoverable property or intended by any person for use in unlawful conduct.

(7)The court or sheriff may make an order under subsection (4) if satisfied that a request for assistance is outstanding in relation to the cryptoassets to be further detained.

(8)A “request for assistance” in subsection (7) means a request for assistance in obtaining evidence (including information in any form or article) in connection with the cryptoassets to be further detained, made—

(a)by a judicial authority in the United Kingdom under section 7 of the Crime (International Co-operation) Act 2003,

(b)by an enforcement officer, to an authority exercising equivalent functions in a foreign country,

(c)by the Scottish Ministers in connection with their functions under this Part, to an authority exercising equivalent functions in a foreign country, or

(d)by a person under section 375A or 408A (evidence overseas).

(9)An order under subsection (1) must provide for notice to be given to persons affected by the order.

303Z33Safekeeping of cryptoassets and cryptoasset-related itemsU.K.

(1)An enforcement officer must arrange for any item of property seized under section 303Z26 to be safely stored throughout the period during which it is detained under this Chapter.

(2)An enforcement officer must arrange for any cryptoassets seized under section 303Z29 to be safely stored throughout the period during which they are detained under this Chapter.

303Z34Release of cryptoassets and cryptoasset-related itemsU.K.

(1)This section applies while any cryptoasset or other item of property is detained under this Chapter.

(2)A magistrates’ court or (in Scotland) the sheriff may direct the release of the whole or any part of the property if the following condition is met.

(3)The condition is that the court or sheriff is satisfied, on an application by the person from whom the property was seized, that the conditions for the detention of the property in this Chapter are no longer met in relation to the property to be released.

(4)A person within subsection (5) may, after notifying the magistrates’ court, sheriff or justice under whose order property is being detained, release the whole or any part of the property if satisfied that the detention of the property to be released is no longer justified.

(5)The following persons are within this subsection—

(a)in relation to England and Wales and Northern Ireland, an enforcement officer;

(b)in relation to Scotland—

(i)the Scottish Ministers,

(ii)an officer of Revenue and Customs,

(iii)a constable, and

(iv)a procurator fiscal.

(6)If any cryptoasset-related item which has been released is not claimed within the period of a year beginning with the date on which it was released, an enforcement officer may—

(a)retain the item and deal with it as they see fit,

(b)dispose of the item, or

(c)destroy the item.

(7)The powers in subsection (6) may be exercised only—

(a)where the enforcement officer has taken reasonable steps to notify—

(i)the person from whom the item was seized, and

(ii)any other persons who the enforcement officer has reasonable grounds to believe have an interest in the item,

that the item has been released, and

(b)with the approval of a senior officer.

(8)Any proceeds of a disposal of the item are to be paid—

(a)into the Consolidated Fund if—

(i)the item was directed to be released by a magistrates’ court, or

(ii)a magistrates’ court or justice was notified under subsection (4) of the release;

(b)into the Scottish Consolidated Fund if—

(i)the item was directed to be released by the sheriff, or

(ii)the sheriff was notified under subsection (4) of the release.

CHAPTER 3DU.K.Recovery of cryptoassets: freezing orders

Modifications etc. (not altering text)

DefinitionsU.K.

303Z35DefinitionsU.K.

(1)In this Chapter—

(a)“cryptoasset exchange provider” means a firm or sole practitioner who by way of business provides one or more of the following services, including where the firm or sole practitioner does so as creator or issuer of any of the cryptoassets involved—

(i)exchanging, or arranging or making arrangements with a view to the exchange of, cryptoassets for money or money for cryptoassets,

(ii)exchanging, or arranging or making arrangements with a view to the exchange of, one cryptoasset for another, or

(iii)operating a machine which utilises automated processes to exchange cryptoassets for money or money for cryptoassets;

(b)“custodian wallet provider” means a firm or sole practitioner who by way of business provides services to safeguard, or to safeguard and administer—

(i)cryptoassets on behalf of its customers, or

(ii)private cryptographic keys on behalf of its customers in order to hold, store and transfer cryptoassets;

(c)“cryptoasset service provider” includes cryptoasset exchange provider and custodian wallet provider.

(2)For the purposes of subsection (1)(a), “money” means—

(a)money in sterling,

(b)money in any other currency, or

(c)money in any other medium of exchange,

but does not include a cryptoasset.

(3)In the definition of “cryptoasset exchange provider” in subsection (1), “cryptoasset” includes a right to, or interest in, a cryptoasset.

(4)The Secretary of State may by regulations amend the definitions in this section.

(5)The Secretary of State must consult the Scottish Ministers and the Department of Justice before making regulations under subsection (4).

Freezing of crypto walletsU.K.

303Z36Application for crypto wallet freezing orderU.K.

(1)This section applies if an enforcement officer has reasonable grounds for suspecting that cryptoassets held in a crypto wallet administered by a UK-connected cryptoasset service provider—

(a)are recoverable property, or

(b)are intended by any person for use in unlawful conduct.

(2)Where this section applies (but subject to subsection (3)) the enforcement officer may apply to the relevant court for a crypto wallet freezing order in relation to the crypto wallet in which the cryptoassets are held.

(3)An enforcement officer may not apply for a crypto wallet freezing order unless the officer is a senior officer or is authorised to do so by a senior officer.

(4)For the purposes of this Chapter—

(a)a crypto wallet freezing order is an order that, subject to any exclusions (see section 303Z39), prohibits each person by or for whom the crypto wallet to which the order applies is administered from—

(i)making withdrawals or payments from the crypto wallet, or

(ii)using the crypto wallet in any other way;

(b)a crypto wallet is administered by or for a person if the person is the person to whom services are being provided by a cryptoasset service provider in relation to that crypto wallet.

(5)An application for a crypto wallet freezing order may be made without notice if the circumstances of the case are such that notice of the application would prejudice the taking of any steps under this Part to forfeit cryptoassets that are recoverable property or intended by any person for use in unlawful conduct.

(6)An application for a crypto wallet freezing order under this section may be combined with an application for an account freezing order under section 303Z1 where a single entity—

(a)is both a relevant financial institution for the purposes of section 303Z1 and a cryptoasset service provider for the purposes of this section, and

(b)operates or administers, for the same person, both an account holding money (above the minimum amount specified in section 303Z8) and a crypto wallet.

(7)An application for a crypto wallet freezing order may not be made by an SFO officer, or an accredited financial investigator, in relation to a UK-connected cryptoasset service provider where—

(a)the provider has its registered office, or if it does not have one, its head office in Scotland, and

(b)the day-to-day management of the provider’s business is the responsibility of that office or another establishment maintained by it in Scotland.

(8)In this Chapter—

  • “enforcement officer” has the meaning given by section 303Z20;

  • “relevant court” means—

    (a)

    in England and Wales and Northern Ireland, a magistrates’ court, and

    (b)

    in Scotland, the sheriff;

  • “senior officer” has the meaning given by section 303Z20;

  • “UK-connected cryptoasset service provider” means a cryptoasset service provider which—

    (a)

    is acting in the course of business carried on by it in the United Kingdom,

    (b)

    has terms and conditions with the persons to whom it provides services which provide for a legal dispute to be litigated in the courts of a part of the United Kingdom,

    (c)

    holds, in the United Kingdom, any data relating to the persons to whom it provides services, or

    (d)

    meets the condition in subsection (9).

(9)The condition in this subsection is that—

(a)the cryptoasset service provider has its registered office, or if it does not have one, its head office in the United Kingdom, and

(b)the day-to-day management of the provider’s business is the responsibility of that office or another establishment maintained by it in the United Kingdom.

303Z37Making of a crypto wallet freezing orderU.K.

(1)This section applies where an application for a crypto wallet freezing order is made under section 303Z36 in relation to a crypto wallet.

(2)The relevant court may make the order if satisfied that there are reasonable grounds for suspecting that some or all of the cryptoassets held in the crypto wallet—

(a)are recoverable property, or

(b)are intended by any person for use in unlawful conduct.

(3)A crypto wallet freezing order ceases to have effect at the end of the period specified in the order (which may be varied under section 303Z38) unless it ceases to have effect at an earlier or later time in accordance with this Chapter or Chapter 3E or 3F.

(4)The period specified by the relevant court for the purposes of subsection (3) (whether when the order is first made or on a variation under section 303Z38) may not exceed the period of 2 years, beginning with the day on which the crypto wallet freezing order is (or was) made; but this is subject to subsection (5).

(5)The relevant court may make an order for the period of 2 years in subsection (4) to be extended to a period of up to 3 years beginning with the day on which the crypto wallet freezing order is (or was) made.

(6)The relevant court may make an order under subsection (5) if satisfied that a request for assistance is outstanding in relation to some or all of the cryptoassets held in the crypto wallet.

(7)A “request for assistance” in subsection (6) means a request for assistance in obtaining evidence (including information in any form or article) in connection with some or all of the cryptoassets held in the crypto wallet, made—

(a)by a judicial authority in the United Kingdom under section 7 of the Crime (International Co-operation) Act 2003,

(b)by an enforcement officer, to an authority exercising equivalent functions in a foreign country,

(c)by the Scottish Ministers in connection with their functions under this Part, to an authority exercising equivalent functions in a foreign country, or

(d)by a person under section 375A or 408A (evidence overseas).

(8)A crypto wallet freezing order must provide for notice to be given to persons affected by the order.

303Z38Variation and setting aside of crypto wallet freezing orderU.K.

(1)The relevant court may at any time vary or set aside a crypto wallet freezing order on an application made by—

(a)an enforcement officer, or

(b)any person affected by the order.

(2)But an enforcement officer may not make an application under subsection (1) unless the officer is a senior officer or is authorised to do so by a senior officer.

(3)Before varying or setting aside a crypto wallet freezing order the court must (as well as giving the parties to the proceedings an opportunity to be heard) give such an opportunity to any person who may be affected by its decision.

(4)In relation to Scotland, the references in this section to setting aside an order are to be read as references to recalling it.

303Z39ExclusionsU.K.

(1)The power to vary a crypto wallet freezing order includes (amongst other things) power to make exclusions from the prohibition on making withdrawals or payments from the crypto wallet to which the order applies.

(2)Exclusions from the prohibition may also be made when the order is made.

(3)An exclusion may (amongst other things) make provision for the purpose of enabling a person by or for whom the crypto wallet is administered—

(a)to meet the person’s reasonable living expenses, or

(b)to carry on any trade, business, profession or occupation.

(4)An exclusion may be made subject to conditions.

(5)Where a magistrates’ court exercises the power to make an exclusion for the purpose of enabling a person to meet legal expenses that the person has incurred, or may incur, in respect of proceedings under this Part, it must ensure that the exclusion—

(a)is limited to reasonable legal expenses that the person has reasonably incurred or that the person reasonably incurs,

(b)specifies the total amount that may be released for legal expenses in pursuance of the exclusion, and

(c)is made subject to the same conditions as would be the required conditions (see section 286A) if the order had been made under section 245A (in addition to any conditions imposed under subsection (4)).

(6)A magistrates’ court, in deciding whether to make an exclusion for the purpose of enabling a person to meet legal expenses in respect of proceedings under this Part—

(a)must have regard to the desirability of the person being represented in any proceedings under this Part in which the person is a participant, and

(b)must disregard the possibility that legal representation of the person in any such proceedings might, were an exclusion not made—

(i)be made available under arrangements made for the purposes of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or

(ii)be funded by the Department of Justice.

(7)The sheriff’s power to make exclusions may not be exercised for the purpose of enabling any person to meet any legal expenses in respect of proceedings under this Part.

(8)The power to make exclusions must, subject to subsection (6), be exercised with a view to ensuring, so far as practicable, that there is not undue prejudice to the taking of any steps under this Part to forfeit cryptoassets that are recoverable property or intended by any person for use in unlawful conduct.

303Z40Restrictions on proceedings and remediesU.K.

(1)If a court in which proceedings are pending in respect of a crypto wallet administered by a UK-connected cryptoasset service provider is satisfied that a crypto wallet freezing order has been applied for or made in respect of the crypto wallet, it may either stay the proceedings or allow them to continue on any terms it thinks fit.

(2)Before exercising the power conferred by subsection (1), the court must (as well as giving the parties to any of the proceedings concerned an opportunity to be heard) give such an opportunity to any person who may be affected by the court’s decision.

(3)In relation to Scotland, the reference in subsection (1) to staying the proceedings is to be read as a reference to sisting the proceedings.

CHAPTER 3EU.K.Forfeiture of cryptoassets following detention or freezing order

Modifications etc. (not altering text)

Forfeiture ordersU.K.

303Z41Forfeiture orderU.K.

(1)This section applies—

(a)while any cryptoassets are detained under Chapter 3C, or

(b)while a crypto wallet freezing order made under section 303Z37 has effect.

(2)An application for the forfeiture of some or all of the cryptoassets that are detained or held in the crypto wallet that is subject to the crypto wallet freezing order may be made—

(a)to a magistrates’ court by a person within subsection (3), or

(b)to the sheriff by the Scottish Ministers.

(3)The following persons are within this subsection—

(a)the Commissioners for His Majesty’s Revenue and Customs,

(b)a constable,

(c)an SFO officer, and

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

(4)The court or sheriff may order the forfeiture of some or all of the cryptoassets if satisfied that the cryptoassets—

(a)are recoverable property, or

(b)are intended by any person for use in unlawful conduct.

(5)An order under subsection (4) made by a magistrates’ court may provide for payment under section 303Z49 of reasonable legal expenses that a person has reasonably incurred, or may reasonably incur, in respect of—

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

(b)any related proceedings under this Chapter.

(6)A sum in respect of a relevant item of expenditure is not payable under section 303Z49 in pursuance of provision under subsection (5) unless—

(a)the person who applied for the order under subsection (4) agrees to its payment, or

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

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

(a)a “relevant item of expenditure” is an item of expenditure to which regulations under section 286B would apply if the order under subsection (4) had instead been a recovery order;

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

(c)if the person who applied for the order under subsection (4) was a constable, an SFO officer or an accredited financial investigator, that person may not agree to the payment of a sum unless the person is a senior officer or is authorised to do so by a senior officer.

(8)Subsection (4) ceases to apply on the transfer of an application made under this section in accordance with section 303Z45(1).

(9)In this Chapter—

  • “crypto wallet freezing order” has the same meaning as in Chapter 3D (see section 303Z36);

  • “enforcement officer” has the meaning given by section 303Z20;

  • “senior officer” has the meaning given by section 303Z20.

(10)Section 303Z36(4)(b) applies in relation to this Chapter as it applies in relation to Chapter 3D.

303Z42Forfeiture order: supplementaryU.K.

(1)Subsection (2) applies where an application is made under section 303Z41 for the forfeiture of any cryptoassets detained under Chapter 3C.

(2)The cryptoassets are to continue to be detained under Chapter 3C (and may not be released under any power conferred by this Part) until any proceedings in pursuance of the application (including any proceedings on appeal) are concluded.

This subsection is subject to Chapter 3F (conversion to money).

(3)Where an application is made under section 303Z41 in relation to cryptoassets held in a crypto wallet that is subject to a crypto wallet freezing order—

(a)subsections (4) and (5) apply, and

(b)the crypto wallet freezing order is to continue to have effect until the time referred to in subsection (4)(b) or (5).

(4)Where the cryptoassets are ordered to be forfeited under section 303Z41(4) or 303Z45(3)—

(a)the cryptoasset service provider that administers the crypto wallet must transfer the cryptoassets into a crypto wallet nominated by an enforcement officer, and

(b)immediately after the transfer has been made, the freezing order ceases to have effect.

(5)Where the application is determined or otherwise disposed of other than by the making of an order under section 303Z41(4) or 303Z45(3), the crypto wallet freezing order ceases to have effect immediately after that determination or other disposal.

(6)Subsections (4)(b) and (5) are subject to section 303Z46 and Chapter 3F.

(7)The Secretary of State may by regulations amend this section to make provision about the forfeiture of cryptoassets held in a crypto wallet that is subject to a crypto wallet freezing order.

(8)Regulations under subsection (7) may in particular make provision about—

(a)the process for the forfeiture of cryptoassets;

(b)the realisation of forfeited cryptoassets;

(c)the application of the proceeds of such realisation.

(9)Regulations under subsection (7) may make consequential amendments of this Chapter.

(10)The Secretary of State may not make regulations under subsection (7) unless the Secretary of State has—

(a)consulted the Scottish Ministers and the Department of Justice, and

(b)given a notice containing the relevant information to the Scottish Ministers and the Department of Justice.

(11)Consultation under subsection (10)(a) must include consultation about any effects that the Secretary of State considers the regulations may have on—

(a)a person in Scotland or Northern Ireland (as the case may be) applying for the forfeiture of cryptoassets held in a crypto wallet that is subject to a crypto wallet freezing order, and

(b)a sheriff or court in Scotland or a court in Northern Ireland (as the case may be) considering such an application or making an order for such forfeiture.

(12)In subsection (10)(b) “relevant information” means—

(a)a description of—

(i)the process undertaken in order to comply with subsection (10)(a) in relation to the Scottish Ministers or the Department of Justice (as the case may be), and

(ii)any agreement, objection or other views expressed as part of that process by the Scottish Ministers or the Department of Justice (as the case may be), and

(b)an explanation of whether and how such views have been taken into account in the regulations (including, in a case where the Secretary of State proposes to make the regulations despite an objection, an explanation of the reasons for doing so).

303Z43Associated and joint propertyU.K.

(1)Sections 303Z44 and 303Z45 apply if—

(a)an application is made under section 303Z41 in respect of cryptoassets,

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

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

(2)Sections 303Z44 and 303Z45 also apply in England and Wales and Northern Ireland if—

(a)an application is made under section 303Z41 in respect of cryptoassets,

(b)the court is satisfied that some or all of the cryptoassets are recoverable property, and

(c)the cryptoassets in relation to which the court is satisfied as mentioned in paragraph (b) belong to joint tenants and one of the tenants is an excepted joint owner.

(3)In this section and sections 303Z44 and 303Z45 “associated property” means property of any of the following descriptions that is not itself the forfeitable property—

(a)any interest in the forfeitable property;

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

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

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

(4)In this section and sections 303Z44 and 303Z45, the “forfeitable property” means the cryptoassets in relation to which the court or sheriff is satisfied as mentioned in subsection (1)(b) or (2)(b) (as the case may be).

303Z44Agreements about associated and joint propertyU.K.

(1)Where—

(a)this section applies, and

(b)the person who applied for the order under section 303Z41 (on the one hand) and the person who holds the associated property or who is the excepted joint owner (on the other hand) agree,

the magistrates’ court or sheriff may, instead of making an order under section 303Z41(4), make an order requiring the person who holds the associated property or who is the excepted joint owner to make a payment to a person identified in the order.

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

(a)in a case where this section applies by virtue of section 303Z43(1), the value of the forfeitable property;

(b)in a case where this section applies by virtue of section 303Z43(2), the value of the forfeitable property less the value of the excepted joint owner’s share.

(3)The amount of the payment may be reduced if the person who applied for the order under section 303Z41 agrees that the other party to the agreement has suffered loss as a result of—

(a)the seizure of the forfeitable property under section 303Z29 and its subsequent detention, or

(b)the making of a crypto wallet freezing order under section 303Z37.

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

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

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

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

(b)any related proceedings under this Chapter.

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

(a)the person who applied for the order under section 303Z41 agrees to its payment, or

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

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

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

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

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

(10)If there is more than one item of associated property or more than one excepted joint owner, the total amount to be paid under subsection (1), and the part of that amount which is to be provided by each person who holds any such associated property or who is an excepted joint owner, is to be agreed between both (or all) of them and the person who applied for the order under section 303Z41.

(11)If the person who applied for the order under section 303Z41 was a constable, an SFO officer or an accredited financial investigator, that person may enter into an agreement for the purposes of any provision of this section only if the person is a senior officer or is authorised to do so by a senior officer.

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

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

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

(c)third, it must be paid—

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

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

303Z45Associated and joint property: default of agreementU.K.

(1)Where this section applies and there is no agreement under section 303Z44, the magistrates’ court or sheriff may transfer the application made under section 303Z41 to the appropriate court.

(2)The “appropriate court” is—

(a)the High Court, where the application under section 303Z41 was made to a magistrates’ court;

(b)the Court of Session, where the application under section 303Z41 was made to the sheriff.

(3)Where (under subsection (1)) an application made under section 303Z41 is transferred to the appropriate court, the appropriate court may order the forfeiture of the property to which the application relates, or any part of that property, if satisfied that what is to be forfeited is recoverable property or intended by any person for use in unlawful conduct.

(4)An order under subsection (3) made by the High Court may include provision of the type that may be included in an order under section 303Z41(4) made by a magistrates’ court by virtue of section 303Z41(5).

(5)If provision is included in an order of the High Court by virtue of subsection (4) of this section, section 303Z41(6) and (7) apply with the necessary modifications.

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

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

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

(7)Where (under subsection (1)) the magistrates’ court or sheriff decides not to transfer an application made under section 303Z41 to the appropriate court, the magistrates’ court or sheriff may, as well as making an order under section 303Z41(4), make an order—

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

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

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

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

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

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

(b)the interest of the person who applied for the order under section 303Z41 in realising the value of the forfeitable property.

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

(a)the person who holds the associated property or who is an excepted joint owner has suffered loss as a result of—

(i)the seizure of the forfeitable property under section 303Z29 and its subsequent detention, or

(ii)the making of the crypto wallet freezing order under section 303Z37, and

(b)the circumstances are exceptional,

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

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

(13)Compensation to be paid by virtue of subsection (11) is to be paid in the same way that compensation is to be paid under section 303Z52.

303Z46Continuation of crypto wallet freezing order pending appealU.K.

(1)This section applies where, on an application under section 303Z41 in relation to a crypto wallet to which a crypto wallet freezing order applies—

(a)the magistrates’ court or sheriff decides—

(i)to make an order under section 303Z41(4) in relation to some but not all of the cryptoassets to which the application related, or

(ii)not to make an order under section 303Z41(4), or

(b)if the application is transferred in accordance with section 303Z45(1), the High Court or Court of Session decides—

(i)to make an order under section 303Z45(3) in relation to some but not all of the cryptoassets to which the application related, or

(ii)not to make an order under section 303Z45(3).

(2)The person who made the application under section 303Z41 may apply without notice to the court or sheriff that made the decision referred to in subsection (1) for an order that the crypto wallet freezing order is to continue to have effect.

(3)Where the court or sheriff makes an order under subsection (2) the crypto wallet freezing order is to continue to have effect until—

(a)the end of the period of 48 hours starting with the making of the order under subsection (2), or

(b)if within that period of 48 hours an appeal is brought (whether under section 303Z47 or otherwise) against the decision referred to in subsection (1), the time when the appeal is determined or otherwise disposed of.

(4)Subsection (3) of section 303Z31 applies for the purposes of subsection (3) as it applies for the purposes of that section.

303Z47Sections 303Z41 to 303Z45: appealsU.K.

(1)Any party to proceedings for an order for the forfeiture of cryptoassets under section 303Z41 may appeal against—

(a)the making of an order under section 303Z41;

(b)the making of an order under section 303Z45(7);

(c)a decision not to make an order under section 303Z41 unless the reason that no order was made is that an order was instead made under section 303Z44;

(d)a decision not to make an order under section 303Z45(7).

Paragraphs (c) and (d) do not apply if the application for the order under section 303Z41 was transferred in accordance with section 303Z45(1).

(2)Where an order under section 303Z44 is made by a magistrates’ court, any party to the proceedings for the order (including any party to the proceedings under section 303Z41 that preceded the making of the order) may appeal against a decision to include, or not to include, provision in the order under section 303Z44(6).

(3)An appeal under this section lies—

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

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

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

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

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

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

303Z48Realisation or destruction of forfeited cryptoassets etcU.K.

(1)This section applies where any cryptoasset or other item of property is forfeited under this Chapter.

(2)An enforcement officer must—

(a)realise the property, or

(b)make arrangements for its realisation.

This is subject to subsections (3) to (5).

(3)The property is not to be realised—

(a)before the end of the period within which an appeal may be made (whether under section 303Z47 or otherwise), or

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

(4)The realisation of property under subsection (2) must be carried out, so far as practicable, in the manner best calculated to maximise the amount obtained for the property.

(5)Where an enforcement officer is satisfied that—

(a)it is not reasonably practicable to realise any cryptoasset, or

(b)there are reasonable grounds to believe that the realisation of any cryptoasset would be contrary to the public interest,

the enforcement officer may destroy the cryptoasset.

(6)But—

(a)the enforcement officer may destroy the cryptoasset only if the officer is a senior officer or is authorised to do so by a senior officer, and

(b)the cryptoasset is not to be destroyed—

(i)before the end of the period within which an appeal may be made (whether under section 303Z47 or otherwise), or

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

(7)The question of whether the realisation of the cryptoasset would be contrary to the public interest is to be determined with particular reference to how likely it is that the entry of the cryptoasset into general circulation would facilitate criminal conduct by any person.

303Z49Proceeds of realisationU.K.

(1)This section applies where any cryptoasset or other item of property is realised under section 303Z48.

(2)The proceeds of the realisation must be applied as follows—

(a)first, they must be applied in making any payment required to be made by virtue of section 303Z45(9);

(b)second, they must be applied in making any payment of legal expenses which, after giving effect to section 303Z41(6) (including as applied by section 303Z45(5)), are payable under this subsection in pursuance of provision under section 303Z41(5) or, as the case may be, 303Z45(4);

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

(d)fourth, they must be paid—

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

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

(3)If what is realised under section 303Z48 represents part only of an item of property, the reference in subsection (2)(c) to costs incurred in storing or insuring the property is to be read as a reference to costs incurred in storing or insuring the whole of the property.

SupplementaryU.K.

303Z50Victims and other owners: detained cryptoassetsU.K.

(1)A person who claims that any cryptoassets detained under this Part belong to the person may apply for some or all of the cryptoassets to be released.

(2)An application under subsection (1) is to be made—

(a)in England and Wales or Northern Ireland, to a magistrates’ court;

(b)in Scotland, to the sheriff.

(3)The application may be made in the course of proceedings under section 303Z32 or 303Z41 or at any other time.

(4)The court or sheriff may order the cryptoassets to which the application relates to be released to the applicant if it appears to the court or sheriff that—

(a)the applicant was deprived of the cryptoassets to which the application relates, or of property which they represent, by unlawful conduct,

(b)the cryptoassets the applicant was deprived of were not, immediately before the applicant was deprived of them, recoverable property, and

(c)the cryptoassets belong to the applicant.

(5)If subsection (6) applies, the court or sheriff may order the cryptoassets to which the application relates to be released to the applicant or to the person from whom they were seized.

(6)This subsection applies where—

(a)the applicant is not the person from whom the cryptoassets to which the application relates were seized,

(b)it appears to the court or sheriff that those cryptoassets belong to the applicant,

(c)the court or sheriff is satisfied that the release condition is met in relation to those cryptoassets, and

(d)no objection to the making of an order under subsection (5) has been made by the person from whom those cryptoassets were seized.

(7)The release condition is met—

(a)if the conditions in Chapter 3C for the detention of the cryptoassets are no longer met, or

(b)in relation to cryptoassets which are subject to an application for forfeiture under section 303Z41, if the court or sheriff decides not to make an order under that section in relation to the cryptoassets.

303Z51Victims and other owners: crypto wallet freezing ordersU.K.

(1)A person who claims that any cryptoassets held in a crypto wallet in respect of which a crypto wallet freezing order has effect belong to the person may apply for some or all of the cryptoassets to be released.

(2)An application under subsection (1) is to be made—

(a)in England and Wales or Northern Ireland, to a magistrates’ court;

(b)in Scotland, to the sheriff.

(3)The application may be made in the course of proceedings under section 303Z37 or 303Z41 or at any other time.

(4)The court or sheriff may, subject to subsection (8), order the cryptoassets to which the application relates to be released to the applicant if it appears to the court or sheriff that—

(a)the applicant was deprived of the cryptoassets to which the application relates, or of property which they represent, by unlawful conduct,

(b)the cryptoassets the applicant was deprived of were not, immediately before the applicant was deprived of them, recoverable property, and

(c)the cryptoassets belong to the applicant.

(5)If subsection (6) applies, the court or sheriff may, subject to subsection (8), order the cryptoassets to which the application relates to be released to the applicant.

(6)This subsection applies where—

(a)the applicant is not the person from whom the cryptoassets to which the application relates were seized,

(b)it appears to the court or sheriff that those cryptoassets belong to the applicant,

(c)the court or sheriff is satisfied that the release condition is met in relation to those cryptoassets, and

(d)no objection to the making of an order under subsection (5) has been made by the person from whom those cryptoassets were seized.

(7)The release condition is met—

(a)if the conditions for the making of the crypto wallet freezing order are no longer met in relation to the cryptoassets to which the application relates, or

(b)in relation to cryptoassets held in a crypto wallet subject to a crypto wallet freezing order which are subject to an application for forfeiture under section 303Z41, if the court or sheriff decides not to make an order under that section in relation to the cryptoassets.

(8)If an application under section 303Z41 is made for the forfeiture of the cryptoassets, the cryptoassets are not to be released under this section until any proceedings in pursuance of the application (including any proceedings on appeal) are concluded.

(9)In relation to cryptoassets held in a crypto wallet that is subject to a crypto wallet freezing order, references in this section to a person from whom cryptoassets were seized include a reference to a person by or for whom the crypto wallet was administered immediately before the crypto wallet freezing order was made.

303Z52CompensationU.K.

(1)This section applies if no order is made under section 303Z41, 303Z44 or 303Z45 in respect of cryptoassets detained under this Part or held in a crypto wallet that is subject to a crypto wallet freezing order under section 303Z37.

(2)Where this section applies, the following may make an application to the relevant court for compensation—

(a)a person to whom the cryptoassets belong or from whom they were seized, or

(b)a person by or for whom a crypto wallet to which the crypto wallet freezing order applies is administered.

(3)If the relevant court is satisfied that the applicant has suffered loss as a result of the detention of the cryptoassets or the making of the crypto wallet freezing order and that the circumstances are exceptional, the relevant court may order compensation to be paid to the applicant.

(4)The amount of compensation to be paid is the amount the relevant court thinks reasonable, having regard to the loss suffered and any other relevant circumstances.

(5)If the cryptoassets were seized, or the crypto wallet freezing order was applied for, by an officer of Revenue and Customs, the compensation is to be paid by the Commissioners for His Majesty’s Revenue and Customs.

(6)If the cryptoassets were seized, or the crypto wallet freezing order was applied for, by a constable, the compensation is to be paid as follows—

(a)in the case of a constable of a police force in England and Wales, it is to be paid out of the police fund from which the expenses of the police force are met;

(b)in the case of a constable of the Police Service of Scotland, it is to be paid by the Scottish Police Authority;

(c)in the case of a police officer within the meaning of the Police (Northern Ireland) Act 2000, it is to be paid out of money provided by the Chief Constable of the Police Service of Northern Ireland.

(7)If the cryptoassets were seized, or the crypto wallet freezing order was applied for, by an SFO officer, the compensation is to be paid by the Director of the Serious Fraud Office.

(8)If the cryptoassets were seized, or the crypto wallet freezing order was applied for, by a National Crime Agency officer, the compensation is to be paid by the National Crime Agency.

(9)If the cryptoassets were seized, or the crypto wallet freezing order was applied for, by an accredited financial investigator who was not an officer of Revenue and Customs, a constable, an SFO officer or a National Crime Agency officer, the compensation is to be paid as follows—

(a)in the case of an investigator who was—

(i)a member of the civilian staff of a police force (including the metropolitan police force), within the meaning of Part 1 of the Police Reform and Social Responsibility Act 2011, or

(ii)a member of staff of the City of London police force,

it is to be paid out of the police fund from which the expenses of the police force are met,

(b)in the case of an investigator who was a member of staff of the Police Service of Northern Ireland, it is to be paid out of money provided by the Chief Constable of the Police Service of Northern Ireland,

(c)in the case of an investigator who was a member of staff of a department of the Government of the United Kingdom, it is to be paid by the Minister of the Crown in charge of the department or by the department,

(d)in the case of an investigator who was a member of staff of a Northern Ireland department, it is to be paid by the department,

(e)in the case of an investigator who was exercising a function of the Welsh Revenue Authority, it is to be paid by the Welsh Revenue Authority, and

(f)in any other case, it is to be paid by the employer of the investigator.

(10)The Secretary of State may by regulations amend subsection (9).

(11)The power in subsection (10) is exercisable by the Department of Justice (and not by the Secretary of State) so far as it may be used to make provision that—

(a)would be within the legislative competence of the Northern Ireland Assembly if contained in an Act of that Assembly, and

(b)would not, if contained in a Bill for an Act of the Northern Ireland Assembly, result in the Bill requiring the consent of the Secretary of State.

(12)If an order under section 303Z37, 303Z41, 303Z44 or 303Z45 is made in respect of some of the cryptoassets detained or held, this section has effect in relation to the remainder.

(13)In this section “relevant court” means—

(a)in England and Wales and Northern Ireland, a magistrates’ court, and

(b)in Scotland, the sheriff.

303Z53Powers for prosecutors to appear in proceedingsU.K.

(1)The Director of Public Prosecutions or the Director of Public Prosecutions for Northern Ireland may appear for a constable or an accredited financial investigator in proceedings under this Chapter if the Director—

(a)is asked by, or on behalf of, a constable or (as the case may be) an accredited financial investigator to do so, and

(b)considers it appropriate to do so.

(2)The Director of Public Prosecutions may appear for the Commissioners for His Majesty’s Revenue and Customs or an officer of Revenue and Customs in proceedings under this Chapter if the Director—

(a)is asked by, or on behalf of, the Commissioners for His Majesty’s Revenue and Customs or (as the case may be) an officer of Revenue and Customs to do so, and

(b)considers it appropriate to do so.

(3)The Directors may charge fees for the provision of services under this section.

(4)The references in subsection (1) to an accredited financial investigator do not include an accredited financial investigator who is an officer of Revenue and Customs but the references in subsection (2) to an officer of Revenue and Customs do include an accredited financial investigator who is an officer of Revenue and Customs.

CHAPTER 3FU.K.Conversion of cryptoassets

ConversionU.K.

303Z54Detained cryptoassets: conversionU.K.

(1)Subsection (2) applies while any cryptoassets are detained in pursuance of an order under section 303Z30 or 303Z32 (including where cryptoassets are subject to forfeiture proceedings).

(2)A person within subsection (3) may apply to the relevant court for an order requiring all of the cryptoassets detained pursuant to the order to be converted into money.

(3)The following persons are within this subsection—

(a)an enforcement officer;

(b)a person from whom the cryptoassets were seized.

(4)In deciding whether to make an order under this section, the court must have regard to whether the cryptoassets (as a whole) are likely to suffer a significant loss in value during the period before they are released or forfeited (including the period during which an appeal against an order for forfeiture may be made).

(5)Before making an order under this section the court must give an opportunity to be heard to—

(a)the parties to the proceedings, and

(b)any other person who may be affected by its decision.

(6)As soon as practicable after an order is made under this section, an enforcement officer must convert the cryptoassets, or arrange for the cryptoassets to be converted, into money.

(7)The conversion of cryptoassets under subsection (6) must be carried out, so far as practicable, in the manner best calculated to maximise the amount of money obtained for the cryptoassets.

(8)At the first opportunity after the cryptoassets are converted, the enforcement officer must arrange for the amount of money obtained for the cryptoassets to be paid into an interest-bearing account and held there.

(9)Interest accruing on the amount is to be added to it on its forfeiture or release.

(10)Where cryptoassets are converted into money in accordance with an order made under this section—

(a)the cryptoassets are no longer to be treated as being detained in pursuance of an order under section 303Z30 or 303Z32, and

(b)any application made under section 303Z41(2) in relation to the cryptoassets which has not yet been determined or otherwise disposed of (including under section 303Z44 or 303Z45) is to be treated as if it were an application made under section 303Z60(2) in relation to the converted cryptoassets.

(11)An order made under this section must provide for notice to be given to persons affected by the order.

(12)No appeal may be made against an order made under this section.

303Z55Frozen crypto wallet: conversionU.K.

(1)This section applies while a crypto wallet freezing order under section 303Z37 has effect (including where cryptoassets held in a crypto wallet that is subject to a crypto wallet freezing order are subject to forfeiture proceedings).

(2)A person within subsection (3) may apply to the relevant court for an order requiring all of the cryptoassets held in the crypto wallet to be converted into money.

(3)The following persons are within this subsection—

(a)an enforcement officer;

(b)a person by or for whom the crypto wallet is administered.

(4)In deciding whether to make an order under this section, the court must have regard to whether the cryptoassets (as a whole) are likely to suffer a significant loss in value during the period before—

(a)the crypto wallet freezing order ceases to have effect, or

(b)the cryptoassets are forfeited (including the period during which an appeal against an order for forfeiture may be made).

(5)Before making an order under this section the court must give an opportunity to be heard to—

(a)the parties to the proceedings, and

(b)any other person who may be affected by its decision.

(6)As soon as practicable after an order is made under this section, the UK-connected cryptoasset service provider that administers the crypto wallet must convert the cryptoassets, or arrange for the cryptoassets to be converted, into money.

(7)The conversion of cryptoassets under subsection (6) must be carried out, so far as practicable, in the manner best calculated to maximise the amount of money obtained for the cryptoassets.

(8)At the first opportunity after the cryptoassets are converted, the UK-connected cryptoasset service provider must arrange for the amount of money obtained for the cryptoassets to be paid into an interest-bearing account nominated by an enforcement officer and held there.

(9)But—

(a)the UK-connected cryptoasset service provider may deduct any reasonable expenses incurred by the provider in connection with the conversion of the cryptoassets, and

(b)the amount to be treated as the proceeds of the conversion of the cryptoassets is to be reduced accordingly.

(10)Interest accruing on the amount obtained for the cryptoassets is to be added to it on its forfeiture or release.

(11)Where cryptoassets are converted in accordance with an order made under this section—

(a)the crypto wallet freezing order ceases to have effect,

(b)any application made under section 303Z41(2) in relation to the cryptoassets which has not yet been determined or otherwise disposed of (including under section 303Z44 or 303Z45) is to be treated as if it were an application made under section 303Z60(2) in relation to the converted cryptoassets, and

(c)any application made under section 303Z46(2) in relation to the crypto wallet which has not yet been determined or otherwise disposed of may not be proceeded with.

(12)An order made under this section must provide for notice to be given to persons affected by the order.

(13)No appeal may be made against an order made under this section.

303Z56Conversion: existing forfeiture proceedingsU.K.

(1)Where—

(a)cryptoassets are forfeited under section 303Z41 or 303Z45, and

(b)before the cryptoassets are realised or destroyed in accordance with section 303Z48, an order is made under section 303Z54 requiring the cryptoassets to be converted into money,

section 303Z62(1) applies in relation to the converted cryptoassets as if they had been detained under section 303Z57 and forfeited under section 303Z60 (and accordingly section 303Z48 ceases to apply).

(2)Where—

(a)cryptoassets are forfeited under section 303Z41 or 303Z45, and

(b)before the cryptoassets are realised or destroyed in accordance with section 303Z48, an order is made under section 303Z55 requiring the cryptoassets to be converted into money,

section 303Z62(2) applies in relation to the converted cryptoassets as if they had been detained under section 303Z58 and forfeited under section 303Z60 (and accordingly section 303Z48 ceases to apply).

(3)Where—

(a)an appeal may be made under section 303Z47(1) or (2) in relation to the determination of an application under section 303Z41(2) for the forfeiture of cryptoassets (including where section 303Z44 or 303Z45 applies), and

(b)an order is made under section 303Z54 or 303Z55 requiring the cryptoassets to be converted into money,

the appeal may instead be made under section 303Z61 (within the time allowed by section 303Z47(4)) as if it were an appeal against the determination of an application under section 303Z60.

(4)Where—

(a)an appeal is made under section 303Z47(1) or (2) in relation to the determination of an application under section 303Z41(2) for the forfeiture of cryptoassets (including where section 303Z44 or 303Z45 applies), and

(b)before the appeal is determined or otherwise disposed of, an order is made under section 303Z54 or 303Z55 requiring the cryptoassets to be converted into money,

the appeal is to be treated as if it had been made under section 303Z61(1) in relation to the determination of an application under section 303Z60 for the forfeiture of the converted cryptoassets.

DetentionU.K.

303Z57Detained cryptoassets: detention of proceeds of conversionU.K.

(1)This section applies where cryptoassets are converted into money in accordance with an order under section 303Z54.

(2)The proceeds of the conversion (the “converted cryptoassets”) may be detained initially until the end of the period that the cryptoassets could, immediately before the conversion, have been detained under Chapter 3C (ignoring the possibility of any extension of that period).

(3)The period for which the converted cryptoassets may be detained may be extended by an order made by the relevant court.

(4)An order under subsection (3) may not authorise the detention of the converted cryptoassets beyond the end of the period of 2 years beginning with the relevant date; but this is subject to subsection (5).

(5)The relevant court may make an order for the period of 2 years in subsection (4) to be extended to a period of up to 3 years beginning with the relevant date.

(6)In subsections (4) and (5) “the relevant date” means the date on which the first order under section 303Z30 or 303Z32 (as the case may be) was made in relation to the cryptoassets.

(7)An application for an order under subsection (3) or (5) may be made—

(a)in relation to England and Wales and Northern Ireland, by—

(i)the Commissioners for His Majesty’s Revenue and Customs,

(ii)a constable,

(iii)an SFO officer, or

(iv)an accredited financial investigator who falls within a description specified in an order made for the purposes of this Chapter by the Secretary of State or the Welsh Ministers under section 453, and

(b)in relation to Scotland, by the Scottish Ministers in connection with their functions under section 303Z41 or by a procurator fiscal.

(8)The relevant court may make an order under subsection (3) only if satisfied that there are reasonable grounds for suspecting that the converted cryptoassets to be further detained—

(a)are recoverable property, or

(b)are intended by any person for use in unlawful conduct.

(9)The relevant court may make an order under subsection (5) only if satisfied that a request for assistance is outstanding in relation to the cryptoassets mentioned in subsection (1).

(10)A “request for assistance” in subsection (9) means a request for assistance in obtaining evidence (including information in any form or article) in connection with the cryptoassets, made—

(a)by a judicial authority in the United Kingdom under section 7 of the Crime (International Co-operation) Act 2003,

(b)by an enforcement officer, to an authority exercising equivalent functions in a foreign country,

(c)by the Scottish Ministers in connection with their functions under this Part, to an authority exercising equivalent functions in a foreign country, or

(d)by a person under section 375A or 408A (evidence overseas).

Modifications etc. (not altering text)

303Z58Frozen crypto wallets: detention of proceeds of conversionU.K.

(1)This section applies where cryptoassets held in a crypto wallet subject to a crypto wallet freezing order are converted into money in accordance with an order under section 303Z55.

(2)The proceeds of the conversion (the “converted cryptoassets”) may be detained initially until the end of the period that the crypto wallet freezing order was, immediately before the conversion, due to have effect under Chapter 3D (ignoring the possibility of any extension of that period).

(3)The period for which the converted cryptoassets may be detained may be extended by an order made by the relevant court.

(4)An order under subsection (3) may not authorise the detention of the converted cryptoassets beyond the end of the period of 2 years beginning with the day on which the crypto wallet freezing order was made; but this is subject to subsection (5).

(5)The relevant court may make an order for the period of 2 years in subsection (4) to be extended to a period of up to 3 years beginning with the day on which the crypto wallet freezing order was made.

(6)An application for an order under subsection (3) or (5) may be made—

(a)in relation to England and Wales and Northern Ireland, by—

(i)the Commissioners for His Majesty’s Revenue and Customs,

(ii)a constable,

(iii)an SFO officer, or

(iv)an accredited financial investigator who falls within a description specified in an order made for the purposes of this Chapter by the Secretary of State or the Welsh Ministers under section 453, and

(b)in relation to Scotland, by the Scottish Ministers in connection with their functions under section 303Z41 or by a procurator fiscal.

(7)The relevant court may make an order under subsection (3) only if satisfied that there are reasonable grounds for suspecting that the converted cryptoassets to be further detained—

(a)are recoverable property, or

(b)are intended by any person for use in unlawful conduct.

(8)The relevant court may make an order under subsection (5) only if satisfied that a request for assistance is outstanding in relation to the cryptoassets mentioned in subsection (1).

(9)A “request for assistance” in subsection (8) means a request for assistance in obtaining evidence (including information in any form or article) in connection with the cryptoassets, made—

(a)by a judicial authority in the United Kingdom under section 7 of the Crime (International Co-operation) Act 2003,

(b)by an enforcement officer, to an authority exercising equivalent functions in a foreign country,

(c)by the Scottish Ministers in connection with their functions under this Part, to an authority exercising equivalent functions in a foreign country, or

(d)by a person under section 375A or 408A (evidence overseas).

Modifications etc. (not altering text)

ReleaseU.K.

303Z59Release of detained converted cryptoassetsU.K.

(1)This section applies while any converted cryptoassets are detained under section 303Z57 or 303Z58.

(2)The relevant court may direct the release of the whole or any part of the converted cryptoassets if the following condition is met.

(3)The condition is that, on an application by the relevant person, the court is not satisfied that there are reasonable grounds for suspecting that the converted cryptoassets to be released—

(a)are recoverable property, or

(b)are intended by any person for use in unlawful conduct.

(4)In subsection (3) “the relevant person” means—

(a)in the case of converted cryptoassets detained under section 303Z57, the person from whom the cryptoassets mentioned in subsection (1) of that section were seized, and

(b)in the case of converted cryptoassets detained under section 303Z58, any person affected by the crypto wallet freezing order mentioned in subsection (1) of that section.

(5)A person within subsection (6) may, after notifying the magistrates’ court or sheriff under whose order converted cryptoassets are being detained, release the whole or any part of the converted cryptoassets if satisfied that the detention is no longer justified.

(6)The following persons are within this subsection—

(a)in relation to England and Wales or Northern Ireland, an enforcement officer;

(b)in relation to Scotland—

(i)the Scottish Ministers,

(ii)an officer of Revenue and Customs,

(iii)a constable, and

(iv)a procurator fiscal.

Modifications etc. (not altering text)

ForfeitureU.K.

303Z60Forfeiture orderU.K.

(1)This section applies while any converted cryptoassets are detained under section 303Z57 or 303Z58.

(2)An application for the forfeiture of some or all of the converted cryptoassets may be made—

(a)to a magistrates’ court by a person within subsection (3), or

(b)to the sheriff by the Scottish Ministers.

(3)The following persons are within this subsection—

(a)the Commissioners for His Majesty’s Revenue and Customs,

(b)a constable,

(c)an SFO officer, and

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

(4)The court or sheriff may order the forfeiture of some or all of the converted cryptoassets if satisfied that the converted cryptoassets to be forfeited—

(a)are recoverable property, or

(b)are intended by any person for use in unlawful conduct.

(5)But in the case of recoverable property which belongs to joint tenants, one of whom is an excepted joint owner, the order may not apply to so much of it as the court thinks is attributable to the excepted joint owner’s share.

(6)Where an application for forfeiture is made under this section, the converted cryptoassets are to continue to be detained under section 303Z57 or 303Z58 (and may not be released under any power conferred by this Chapter) until any proceedings in pursuance of the application (including any proceedings on appeal) are concluded.

Modifications etc. (not altering text)

303Z61Appeal against decision under section 303Z60U.K.

(1)Any party to proceedings for an order for the forfeiture of converted cryptoassets under section 303Z60 who is aggrieved by an order under that section or by the decision of the court not to make such an order may appeal—

(a)from an order or decision of a magistrates’ court in England and Wales, to the Crown Court;

(b)from an order or decision of the sheriff, to the Sheriff Appeal Court;

(c)from an order or decision of a magistrates’ court in Northern Ireland, to a county court.

(2)An appeal under subsection (1) must be made before the end of the period of 30 days starting with the day on which the court makes the order or decision.

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

(4)If the court upholds an appeal against an order forfeiting the converted cryptoassets, it may order the release of some or all of the converted cryptoassets.

303Z62Application of forfeited converted cryptoassetsU.K.

(1)Converted cryptoassets detained under section 303Z57 and forfeited under section 303Z60, and any accrued interest on them, must be applied as follows—

(a)first, they must be applied in making any payment of reasonable expenses incurred by an enforcement officer in connection with the safe storage of the cryptoassets mentioned in section 303Z57(1) during the period the cryptoassets were detained under Chapter 3C;

(b)second, they must be applied in making any payment of reasonable expenses incurred by an enforcement officer in connection with the conversion of those cryptoassets under section 303Z54(6);

(c)third, they must be applied in making any payment of reasonable expenses incurred by an enforcement officer in connection with the detention of the converted cryptoassets under this Chapter;

(d)fourth, they must be paid—

(i)if forfeited by a magistrates’ court in England and Wales or Northern Ireland, into the Consolidated Fund, and

(ii)if forfeited by the sheriff, into the Scottish Consolidated Fund.

(2)Converted cryptoassets detained under section 303Z58 and forfeited under section 303Z60, and any accrued interest on them, must be applied as follows—

(a)first, they must be applied in making any payment of reasonable expenses incurred by an enforcement officer in connection with the detention of the converted cryptoassets under this Chapter;

(b)second, they must be paid—

(i)if forfeited by a magistrates’ court in England and Wales or Northern Ireland, into the Consolidated Fund, and

(ii)if forfeited by the sheriff, into the Scottish Consolidated Fund.

(3)But converted cryptoassets are not to be applied or paid under subsection (1) or (2)—

(a)before the end of the period within which an appeal under section 303Z61 may be made, or

(b)if a person appeals under that section, before the appeal is determined or otherwise disposed of.

SupplementaryU.K.

303Z63Victims and other ownersU.K.

(1)This section applies where converted cryptoassets are detained under this Chapter.

(2)Where this section applies, a person (“P”) who claims that the relevant cryptoassets belonged to P immediately before—

(a)the relevant cryptoassets were seized, or

(b)the crypto wallet freezing order was made in relation to the crypto wallet in which the relevant cryptoassets were held,

may apply to the relevant court for some or all of the converted cryptoassets to be released to P.

(3)The application may be made in the course of proceedings under section 303Z57, 303Z58 or 303Z60 or at any other time.

(4)The relevant court may order the converted cryptoassets to which the application relates to be released to the applicant if it appears to the relevant court that the condition in subsection (5) is met.

(5)The condition in this subsection is that—

(a)the applicant was deprived of the relevant cryptoassets, or of property which they represent, by unlawful conduct,

(b)the relevant cryptoassets the applicant was deprived of were not, immediately before the applicant was deprived of them, recoverable property, and

(c)the relevant cryptoassets belonged to the applicant immediately before—

(i)the relevant cryptoassets were seized, or

(ii)the crypto wallet freezing order was made in relation to the crypto wallet in which the relevant cryptoassets were held.

(6)If subsection (7) applies, the relevant court may order the converted cryptoassets to which the application relates to be released to the applicant or to the person from whom the relevant cryptoassets were seized.

(7)This subsection applies where—

(a)the applicant is not the person from whom the relevant cryptoassets were seized,

(b)it appears to the relevant court that the relevant cryptoassets belonged to the applicant immediately before—

(i)the relevant cryptoassets were seized, or

(ii)the crypto wallet freezing order was made in relation to the crypto wallet in which the relevant cryptoassets were held,

(c)the relevant court is satisfied that the release condition is met in relation to the converted cryptoassets, and

(d)no objection to the making of an order under subsection (6) has been made by the person from whom the relevant cryptoassets were seized.

(8)The release condition is met—

(a)if the conditions in this Chapter for the detention of the converted cryptoassets are no longer met, or

(b)in relation to converted cryptoassets which are subject to an application for forfeiture under section 303Z60, if the court or sheriff decides not to make an order under that section in relation to the converted cryptoassets.

(9)Where subsection (2)(b) applies, references in this section to a person from whom relevant cryptoassets were seized include a reference to a person by or for whom the crypto wallet mentioned in that provision was administered immediately before the crypto wallet freezing order was made in relation to the crypto wallet.

(10)In this section “the relevant cryptoassets” means—

(a)in relation to converted cryptoassets detained under section 303Z57, some or all of the cryptoassets mentioned in subsection (1) of that section, and

(b)in relation to converted cryptoassets detained under section 303Z58, some or all of the cryptoassets mentioned in subsection (1) of that section.

303Z64CompensationU.K.

(1)This section applies if no order is made under section 303Z60 in respect of converted cryptoassets detained under this Chapter.

(2)Where this section applies, the following may make an application to the relevant court for compensation—

(a)a person to whom the relevant cryptoassets belonged immediately before they were seized;

(b)a person from whom the relevant cryptoassets were seized;

(c)a person by or for whom the crypto wallet mentioned in section 303Z58(1) was administered immediately before the crypto wallet freezing order was made in relation to the crypto wallet.

(3)If the relevant court is satisfied that—

(a)the applicant has suffered loss as a result of—

(i)the conversion of the relevant cryptoassets into money, or

(ii)the detention of the converted cryptoassets, and

(b)the circumstances are exceptional,

the relevant court may order compensation to be paid to the applicant.

(4)The amount of compensation to be paid is the amount the relevant court thinks reasonable, having regard to the loss suffered and any other relevant circumstances.

(5)If the relevant cryptoassets were seized, or the relevant crypto wallet freezing order was applied for, by an officer of Revenue and Customs, the compensation is to be paid by the Commissioners for His Majesty’s Revenue and Customs.

(6)If the relevant cryptoassets were seized, or the relevant crypto wallet freezing order was applied for, by a constable, the compensation is to be paid as follows—

(a)in the case of a constable of a police force in England and Wales, it is to be paid out of the police fund from which the expenses of the police force are met;

(b)in the case of a constable of the Police Service of Scotland, it is to be paid by the Scottish Police Authority;

(c)in the case of a police officer within the meaning of the Police (Northern Ireland) Act 2000, it is to be paid out of money provided by the Chief Constable of the Police Service of Northern Ireland.

(7)If the relevant cryptoassets were seized, or the relevant crypto wallet freezing order was applied for, by an SFO officer, the compensation is to be paid by the Director of the Serious Fraud Office.

(8)If the relevant cryptoassets were seized, or the relevant crypto wallet freezing order was applied for, by a National Crime Agency officer, the compensation is to be paid by the National Crime Agency.

(9)If the relevant cryptoassets were seized, or the relevant crypto wallet freezing order was applied for, by an accredited financial investigator who was not an officer of Revenue and Customs, a constable, an SFO officer or a National Crime Agency officer, the compensation is to be paid as follows—

(a)in the case of an investigator who was—

(i)a member of the civilian staff of a police force (including the metropolitan police force), within the meaning of Part 1 of the Police Reform and Social Responsibility Act 2011, or

(ii)a member of staff of the City of London police force,

it is to be paid out of the police fund from which the expenses of the police force are met,

(b)in the case of an investigator who was a member of staff of the Police Service of Northern Ireland, it is to be paid out of money provided by the Chief Constable of the Police Service of Northern Ireland,

(c)in the case of an investigator who was a member of staff of a department of the Government of the United Kingdom, it is to be paid by the Minister of the Crown in charge of the department or by the department,

(d)in the case of an investigator who was a member of staff of a Northern Ireland department, it is to be paid by the department,

(e)in the case of an investigator who was exercising a function of the Welsh Revenue Authority, it is to be paid by the Welsh Revenue Authority, and

(f)in any other case, it is to be paid by the employer of the investigator.

(10)The Secretary of State may by regulations amend subsection (9).

(11)The power in subsection (10) is exercisable by the Department of Justice (and not by the Secretary of State) so far as it may be used to make provision that—

(a)would be within the legislative competence of the Northern Ireland Assembly if contained in an Act of that Assembly, and

(b)would not, if contained in a Bill for an Act of the Northern Ireland Assembly, result in the Bill requiring the consent of the Secretary of State.

(12)In this section—

  • “the relevant cryptoassets” means—

    (a)

    in relation to converted cryptoassets detained under section 303Z57, the cryptoassets mentioned in subsection (1) of that section;

    (b)

    in relation to converted cryptoassets detained under section 303Z58, the cryptoassets mentioned in subsection (1) of that section;

  • “the relevant crypto wallet freezing order”, in relation to converted cryptoassets detained under section 303Z58, means the crypto wallet freezing order mentioned in subsection (1) of that section.

Modifications etc. (not altering text)

303Z65Powers for prosecutors to appear in proceedingsU.K.

(1)The Director of Public Prosecutions or the Director of Public Prosecutions for Northern Ireland may appear for a constable or an accredited financial investigator in proceedings under this Chapter if the Director—

(a)is asked by, or on behalf of, a constable or (as the case may be) an accredited financial investigator to do so, and

(b)considers it appropriate to do so.

(2)The Director of Public Prosecutions may appear for the Commissioners for His Majesty’s Revenue and Customs or an officer of Revenue and Customs in proceedings under this Chapter if the Director—

(a)is asked by, or on behalf of, the Commissioners for His Majesty’s Revenue and Customs or (as the case may be) an officer of Revenue and Customs to do so, and

(b)considers it appropriate to do so.

(3)The Directors may charge fees for the provision of services under this section.

(4)The references in subsection (1) to an accredited financial investigator do not include an accredited financial investigator who is an officer of Revenue and Customs but the references in subsection (2) to an officer of Revenue and Customs do include an accredited financial investigator who is an officer of Revenue and Customs.

InterpretationU.K.

303Z66InterpretationU.K.

(1)In this Chapter—

  • “converted cryptoassets” is to be read in accordance with sections 303Z57 and 303Z58;

  • “crypto wallet freezing order” has the same meaning as in Chapter 3D (see section 303Z36);

  • “enforcement officer” has the meaning given by section 303Z20;

  • “relevant court” means—

    (a)

    in England and Wales and Northern Ireland, a magistrates’ court, and

    (b)

    in Scotland, the sheriff;

  • “relevant financial institution” has the meaning given by section 303Z1(6);

  • “UK-connected cryptoasset service provider” has the meaning given by section 303Z36.

(2)Section 303Z36(4)(b) applies in relation to this Chapter as it applies in relation to Chapter 3D.

(3)In this Chapter references to the conversion of cryptoassets into money are references to the conversion of cryptoassets into—

(a)cash, or

(b)money held in an account maintained with a relevant financial institution.]

Chapter 4U.K.General

Modifications etc. (not altering text)

C90Pt. 5 Ch. 4: power to modify conferred (25.4.2013) by Crime and Courts Act 2013 (c. 22), s. 61(11)(f), Sch. 25 para. 7

Recoverable propertyU.K.

304 Property obtained through unlawful conductU.K.

(1)Property obtained through unlawful conduct is recoverable property.

(2)But if property obtained through unlawful conduct has been disposed of (since it was so obtained), it is recoverable property only if it is held by a person into whose hands it may be followed.

(3)Recoverable property obtained through unlawful conduct may be followed into the hands of a person obtaining it on a disposal by—

(a)the person who through the conduct obtained the property, or

(b)a person into whose hands it may (by virtue of this subsection) be followed.

305 Tracing property, etc.U.K.

(1)Where property obtained through unlawful conduct (“the original property”) is or has been recoverable, property which represents the original property is also recoverable property.

(2)If a person enters into a transaction by which—

(a)he disposes of recoverable property, whether the original property or property which (by virtue of this Chapter) represents the original property, and

(b)he obtains other property in place of it,

the other property represents the original property.

(3)If a person disposes of recoverable property which represents the original property, the property may be followed into the hands of the person who obtains it (and it continues to represent the original property).

306 Mixing propertyU.K.

(1)Subsection (2) applies if a person’s recoverable property is mixed with other property (whether his property or another’s).

(2)The portion of the mixed property which is attributable to the recoverable property represents the property obtained through unlawful conduct.

(3)Recoverable property is mixed with other property if (for example) it is used—

(a)to increase funds held in a bank account,

(b)in part payment for the acquisition of an asset,

(c)for the restoration or improvement of land,

[F1039(ca)for the discharge (in whole or in part) of a mortgage, charge or other security,]

(d)by a person holding a leasehold interest in the property to acquire the freehold.

Textual Amendments

F1039S. 306(3)(ca) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 34(10), 58(1)(6); S.I. 2018/78, reg. 3(s)

307 Recoverable property: accruing profitsU.K.

(1)This section applies where a person who has recoverable property obtains further property consisting of profits accruing in respect of the recoverable property.

(2)The further property is to be treated as representing the property obtained through unlawful conduct.

308 General exceptionsU.K.

(1)If—

(a)a person disposes of recoverable property, and

(b)the person who obtains it on the disposal does so in good faith, for value and without notice that it was recoverable property,

the property may not be followed into that person’s hands and, accordingly, it ceases to be recoverable.

(2)If recoverable property is vested, forfeited or otherwise disposed of in pursuance of powers conferred by virtue of this Part, it ceases to be recoverable.

(3)If—

(a)in pursuance of a judgment in civil proceedings (whether in the United Kingdom or elsewhere), the defendant makes a payment to the claimant or the claimant otherwise obtains property from the defendant,

(b)the claimant’s claim is based on the defendant’s unlawful conduct, and

(c)apart from this subsection, the sum received, or the property obtained, by the claimant would be recoverable property,

the property ceases to be recoverable.

In relation to Scotland, “claimant” and “defendant” are to be read as “pursuer” and “defender”.

(4)If—

(a)a payment is made to a person in pursuance of a compensation order under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)), section 249 of the Criminal Procedure (Scotland) Act 1995 (c. 46) or [F1040Chapter 2 of Part 7 of the Sentencing Code] [F1041 or in pursuance of a service compensation order under the Armed Forces Act 2006], and

(b)apart from this subsection, the sum received would be recoverable property,

the property ceases to be recoverable.

[F1042(4A)If—

(a)a payment is made to a person in pursuance of a slavery and trafficking reparation order under section 8 of the Modern Slavery Act 2015, and

(b)apart from this subsection, the sum received would be recoverable property,

the property ceases to be recoverable.]

[F1043(4A)If—

(a)a payment is made to a person in pursuance of a slavery and trafficking reparation order under Schedule 2 to the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015, and

(b)apart from this subsection, the sum received would be recoverable property,

the property ceases to be recoverable.]

(5)If—

(a)a payment is made to a person in pursuance of a restitution order under section 27 of the Theft Act (Northern Ireland) 1969 (c. 16 (N.I.)) or [F1044Chapter 3 of Part 7 of the Sentencing Code] or a person otherwise obtains any property in pursuance of such an order, and

(b)apart from this subsection, the sum received, or the property obtained, would be recoverable property,

the property ceases to be recoverable.

(6)If—

(a)in pursuance of an order made by the court under section 382(3) or 383(5) of the Financial Services and Markets Act 2000 (c. 8) (restitution orders), an amount is paid to or distributed among any persons in accordance with the court’s directions, and

(b)apart from this subsection, the sum received by them would be recoverable property,

the property ceases to be recoverable.

(7)If—

(a)in pursuance of a requirement of the [F1045Financial Conduct Authority, the Prudential Regulation Authority or the Bank of England under or by virtue of] section 384(5) of the Financial Services and Markets Act 2000 (power F1046... to require restitution), an amount is paid to or distributed among any persons, and

(b)apart from this subsection, the sum received by them would be recoverable property,

the property ceases to be recoverable.

[F1047(7A)If—

(a)a payment is made to a person in pursuance of an unlawful profit order under section 4 of the Prevention of Social Housing Fraud Act 2013, and

(b)apart from this subsection, the sum received would be recoverable property,

the property ceases to be recoverable.]

(8)Property is not recoverable while a restraint order applies to it, that is—

(a)an order under section 41, 120 or 190, or

(b)an order under any corresponding provision of an enactment mentioned in section 8(7)(a) to (g).

[F1048(8A)Property is not recoverable while it is detained under or by virtue of section 44A, 47J, 47K, 47M, 47P, 122A, 127J, 127K, 127M, 127P, 193A, 195J, 195K, 195M or 195P.]

(9)Property is not recoverable if it has been taken into account in deciding the amount of a person’s benefit from criminal conduct for the purpose of making a confiscation order, that is—

(a)an order under section 6, 92 or 156, or

(b)an order under a corresponding provision of an enactment mentioned in section 8(7)(a) to (g),

and, in relation to an order mentioned in paragraph (b), the reference to the amount of a person’s benefit from criminal conduct is to be read as a reference to the corresponding amount under the enactment in question.

(10)Where—

(a)a person enters into a transaction to which section 305(2) applies, and

(b)the disposal is one to which subsection (1) or (2) applies,

this section does not affect the recoverability (by virtue of section 305(2)) of any property obtained on the transaction in place of the property disposed of.

Textual Amendments

F1041Words in s. 308(4)(a) inserted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 16 para. 197; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F1046Words in s. 308(7)(a) omitted (1.4.2013) by virtue of Financial Services Act 2012 (c. 21), s. 122(3), Sch. 18 para. 94(3)(b) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F1048S. 308(8A) inserted (1.6.2015 for specified purposes, 1.3.2016 in so far as not already in force) by Policing and Crime Act 2009 (c. 26), s. 116(1), Sch. 7 para. 78; S.I. 2015/983, arts. 2(2)(e), 3(o); S.I. 2016/147, art. 3(i)

Modifications etc. (not altering text)

C91S. 308(4) modified (24.4.2009 for specified purposes, 31.10.2009 in so far as not already in force) by The Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (S.I. 2009/1059), art. 1(3), Sch. 1 para. 51

309 Other exemptionsU.K.

(1)An order may provide that property is not recoverable or (as the case may be) associated property if—

(a)it is prescribed property, or

(b)it is disposed of in pursuance of a prescribed enactment or an enactment of a prescribed description.

(2)An order may provide that if property is disposed of in pursuance of a prescribed enactment or an enactment of a prescribed description, it is to be treated for the purposes of section 278 as if it had been disposed of in pursuance of a recovery order.

(3)An order under this section may be made so as to apply to property, or a disposal of property, only in prescribed circumstances; and the circumstances may relate to the property or disposal itself or to a person who holds or has held the property or to any other matter.

(4)In this section, an order means an order made by the Secretary of State after consultation with the Scottish Ministers [F1049and the Department of Justice], and prescribed means prescribed by the order.

Textual Amendments

310 Granting interestsU.K.

(1)If a person grants an interest in his recoverable property, the question whether the interest is also recoverable is to be determined in the same manner as it is on any other disposal of recoverable property.

(2)Accordingly, on his granting an interest in the property (“the property in question”)—

(a)where the property in question is property obtained through unlawful conduct, the interest is also to be treated as obtained through that conduct,

(b)where the property in question represents in his hands property obtained through unlawful conduct, the interest is also to be treated as representing in his hands the property so obtained.

InsolvencyU.K.

311 InsolvencyU.K.

(1)Proceedings for a recovery order may not be taken or continued in respect of property to which subsection (3) applies unless the appropriate court gives leave and the proceedings are taken or (as the case may be) continued in accordance with any terms imposed by that court.

(2)An application for an order for the further detention of any cash to which subsection (3) applies may not be made under section 295 unless the appropriate court gives leave.

[F1050(2A)An application for an order for the further detention of any property to which subsection (3) applies may not be made under section 303L unless the appropriate court gives leave.

(2B)An application for the making of an account freezing order under section 303Z3 in respect of an account in which is held money to which subsection (3) applies, or an application under section 303Z4 for the extension of the period specified in such an order, may not be made unless the appropriate court gives leave.]

(3)This subsection applies to recoverable property, or property associated with it, if—

(a)it is an asset of a company being wound up in pursuance of a resolution for voluntary winding up,

(b)it is an asset of a company and a voluntary arrangement under Part 1 of the 1986 Act, or Part 2 of the 1989 Order, has effect in relation to the company,

(c)an order under [F1051section 286 of the 1986 Act, Article 259 of the 1989 Order or section 54 of the 2016 Act] (appointment of interim trustee or interim receiver) has effect in relation to the property,

(d)it is an asset comprised in the estate of an individual who has been [F1052made] bankrupt or, in relation to Scotland, of a person whose estate has been sequestrated,

(e)it is an asset of an individual and a voluntary arrangement under Part 8 of the 1986 Act, or Part 8 of the 1989 Order, has effect in relation to him, or

(f)in relation to Scotland, it is property comprised in the estate of a person who has granted a trust deed within the meaning of the [F10532016] Act.

(4)An application under this section, or under any provision of the 1986 Act or the 1989 Order, for leave to take proceedings for a recovery order [F1054, or to apply for an account freezing order under section 303Z3,] may be made without notice to any person.

(5)Subsection (4) does not affect any requirement for notice of an application to be given to any person acting as an insolvency practitioner or to the official receiver (whether or not acting as an insolvency practitioner).

(6)References to the provisions of the 1986 Act in sections 420 and 421 of that Act, or to the provisions of the 1989 Order in Articles 364 or 365 of that Order, (insolvent partnerships and estates of deceased persons) include subsections (1) to (3) above.

(7)In this section—

F1055(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)the 1986 Act means the Insolvency Act 1986 (c. 45),

(c)the 1989 Order means the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)),

[F1056(d)the 2016 Act means the Bankruptcy (Scotland) Act 2016]

and in subsection (8) “the applicable enactment” means whichever enactment mentioned in paragraphs [F1057(b) to (d)] is relevant to the resolution, arrangement, order or trust deed mentioned in subsection (3).

(8)In this section—

(a)an asset means any property within the meaning of the applicable enactment or, where the [F10582016 Act is the applicable enactment, any property comprised in an estate to which that] Act applies,

(b)the appropriate court means the court which, in relation to the resolution, arrangement, order or trust deed mentioned in subsection (3), is the court for the purposes of the applicable enactment or, in relation to Northern Ireland, the High Court,

(c)acting as an insolvency practitioner has the same meaning as in section 433,

(d)other expressions used in this section and in the applicable enactment have the same meaning as in that enactment.

Textual Amendments

F1050S. 311(2A)(2B) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. for specified purposes, 16.4.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 34(2); S.I. 2018/78, reg. 5(3)(a)(i)(ii); S.I. 2021/724, reg. 4(g)

F1054Words in s. 311(4) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. for specified purposes, 16.4.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 34(3); S.I. 2018/78, reg. 5(3)(a)(i)(ii); S.I. 2021/724, reg. 4(g)

[F1059Chapters 3C to 3F: supplementaryU.K.

Textual Amendments

F1059S. 311A and cross-heading inserted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 6(6); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

311AFinancial investigatorsU.K.

(1)This section applies where an accredited financial investigator of a particular description—

(a)applies for an order under section 303Z28, 303Z32, 303Z57 or 303Z58 (further detention of cryptoassets etc),

(b)applies for forfeiture under section 303Z41 or 303Z60 (forfeiture of cryptoassets etc), or

(c)brings an appeal under, or relating to, Chapter 3E or 3F (cryptoassets etc).

(2)Any subsequent step in the application or appeal, or any further application or appeal relating to the same matter, may be taken, made or brought by a different accredited financial investigator of the same description.]

Delegation of enforcement functionsU.K.

312 Performance of functions of Scottish Ministers by constables in ScotlandU.K.

(1)In Scotland, a constable engaged in temporary service with the Scottish Ministers in connection with their functions under this Part may perform functions, other than those specified in subsection (2), on behalf of the Scottish Ministers.

(2)The specified functions are the functions conferred on the Scottish Ministers by—

(a)sections 244(1) and (2) and 256(1) and (7) (proceedings in the Court of Session),

(b)section 267(2) (trustee for civil recovery),

(c)sections [F1060271] and 272(5) (agreements about associated and joint property),

(d)section 275(3) (pension schemes),

(e)section 282(1) (exemptions),

(f)section 283(5) and (8) (compensation),

(g)section 287(2) (financial threshold),

(h)section 293(1) (code of practice),

(i)section 298(1) (forfeiture),

(j)section 303(1) (minimum amount).

[F1061(k)section 303B(3) (listed asset);

(l)section 303H(1) (code of practice);

(m)section 303O(1)(b) (forfeiture);

(n)section 303Y(3) (minimum value);

(o)section 303Z8(3) (minimum amount);

(p)section 303Z14(2)(b) (forfeiture).]

[F1062(q)section 303Z20(3) (cryptoassets);

(r)section 303Z25 (codes of practice);

(s)section 303Z28(5)(b) (further detention of seized cryptoasset-related items);

(t)section 303Z32(5)(b) (further detention of seized cryptoassets);

(u)section 303Z34(4) and (5)(b)(i) (release of cryptoassets and cryptoasset-related items);

(v)section 303Z35(5) (crypto wallets);

(w)section 303Z41(2)(b) (forfeiture of cryptoassets);

(x)section 303Z42(10) (forfeiture of cryptoassets: supplementary);

(y)section 303Z44 (agreements about associated and joint property);

(z)section 303Z45(10) (associated and joint property: default of agreement);

(z1)section 303Z46(2) (continuation of crypto wallet freezing order pending appeal);

(z2)section 303Z47(1) (sections 303Z41 to 303Z45: appeals);

(z3)section 303Z57(7)(b) (detained cryptoassets: detention of proceeds of conversion);

(z4)section 303Z58(6)(b) (frozen crypto wallets: detention of proceeds of conversion);

(z5)section 303Z60(2) (forfeiture of converted cryptoassets);

(z6)section 303Z61(1) (appeal against decision under section 303Z60).]

Textual Amendments

F1060Word in s. 312(2)(c) substituted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 6(7)(a); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

F1061S. 312(2)(k)-(p) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. for specified purposes, 16.4.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 35; S.I. 2018/78, reg. 5(3)(b)(i)(ii); S.I. 2021/724, reg. 4(g)

F1062S. 312(2)(q)-(z6) inserted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 6(7)(b); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

Commencement Information

I270S. 312 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

F1063313 Restriction on performance of Director’s functions by policeU.K.

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

Textual Amendments

Commencement Information

I271S. 313 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

InterpretationU.K.

314 Obtaining and disposing of propertyU.K.

(1)References to a person disposing of his property include a reference—

(a)to his disposing of a part of it, or

(b)to his granting an interest in it,

(or to both); and references to the property disposed of are to any property obtained on the disposal.

(2)A person who makes a payment to another is to be treated as making a disposal of his property to the other, whatever form the payment takes.

(3)Where a person’s property passes to another under a will or intestacy or by operation of law, it is to be treated as disposed of by him to the other.

(4)A person is only to be treated as having obtained his property for value in a case where he gave unexecuted consideration if the consideration has become executed consideration.

315 Northern Ireland courtsU.K.

In relation to the practice and procedure of courts in Northern Ireland, expressions used in this Part are to be read in accordance with rules of court.

316 General interpretationU.K.

(1)In this Part—

  • [F1064“account forfeiture notice” (in Chapter 3B) has the meaning given by section 303Z9(3),]

  • [F1064“account freezing order” (in Chapter 3B) account forfeiture notice ” (in Chapter 3B) has the meaning given by section 303Z1(3)(a),]

  • “associated property” [F1065(in Chapter 2)] has the meaning given by section 245,

  • [F1064“bank” (in Chapter 3B) has the meaning given by section 303Z7,]

  • [F1064“building society” (in Chapter 3B) has the meaning given by section 303Z1(6),]

  • “cash” has the meaning given by section 289(6) or (7),

  • “constable”, in relation to Northern Ireland, means a police officer within the meaning of the Police (Northern Ireland) Act 2000 (c. 32),

  • “country” includes territory,

  • “the court” (except in sections 253(2) and (3) and 262(2) and (3) and [F1066Chapters 3, 3A [F1067, 3B, 3C, 3D, 3E and 3F]] ) means the High Court or (in relation to proceedings in Scotland) the Court of Session,

  • [F1068“cryptoasset” has the meaning given by section 303Z20;]

  • [F1068“crypto wallet” has the meaning given by section 303Z20;]

  • “dealing” with property includes disposing of it, taking possession of it or removing it from the United Kingdom,

  • [F1069“the Department of Justice” means the Department of Justice in Northern Ireland;]

  • [F1070“electronic money institution” (in Chapter 3B) has the meaning given by section 303Z1(6),]

  • “enforcement authority”—

    (a)

    [F1071in relation to England and Wales, means [F1072the Financial Conduct Authority,] [F1073Her Majesty's Revenue and Customs,] [F1074the National Crime Agency], the Director of Public Prosecutions F1075... or the Director of the Serious Fraud Office,]

    (b)

    in relation to Scotland, means the Scottish Ministers,

    (c)

    [F1076in relation to Northern Ireland, means [F1077the Financial Conduct Authority,] [F1078Her Majesty's Revenue and Customs,] [F1074the National Crime Agency], the Director of the Serious Fraud Office or the Director of Public Prosecutions for Northern Ireland,]

  • [F1064“enforcement officer” (in Chapter 3B) has the meaning given by section 303Z1(6),]

  • “excepted joint owner” has the meaning given by section 270(4),

  • “interest”, in relation to land—

    (a)

    in the case of land in England and Wales or Northern Ireland, means any legal estate and any equitable interest or power,

    (b)

    in the case of land in Scotland, means any estate, interest, servitude or other heritable right in or over land, including a heritable security,

  • “interest”, in relation to property other than land, includes any right (including a right to possession of the property),

  • “interim administration order” has the meaning given by section 256(2),

  • “interim receiving order” has the meaning given by section 246(2),

  • [F1068“justice of the peace”, in relation to Northern Ireland, means lay magistrate;]

  • [F1064“listed asset” (in Chapter 3A) has the meaning given by section 303B,]

  • “the minimum amount” (in Chapter 3) has the meaning given by section 303,

  • [F1064“the minimum amount” (in Chapter 3B) has the meaning given by section 303Z8]

  • [F1064“the minimum value” (in Chapter 3A) has the meaning given by section 303Y,

  • “part”, in relation to property, includes a portion,

  • [F1070“payment institution” (in Chapter 3B) has the meaning given by section 303Z1(6),]

  • [F1079“PPO receiver” has the meaning given by section 255G(2);]

  • “premises” has the same meaning as in the Police and Criminal Evidence Act 1984 (c. 60),

  • [F1080 “prohibitory property order” has the meaning given by section 255A(2);

  • “property freezing order” has the meaning given by section 245A(2);]

  • “property obtained through unlawful conduct” has the meaning given by section 242,

  • “recoverable property” is to be read in accordance with sections 304 to 310,

  • “recovery order” means an order made under section 266,

  • [F1064“relevant court” has the meaning given by section 303Z1(6),]

  • [F1070“relevant financial institution” (in Chapter 3B) has the meaning given by section 303Z1[F1081(6)],]

  • [F1064“relevant officer” (in Chapter 3A) has the meaning given by section 303C(9),]

  • “respondent” means—

    (a)

    where proceedings are brought by the enforcement authority by virtue of Chapter 2, the person against whom the proceedings are brought,

    (b)

    where no such proceedings have been brought but the enforcement authority has applied for [F1082a property freezing order, an interim receiving order, a prohibitory property order or an] interim administration order, the person against whom he intends to bring such proceedings,

  • [F1064“senior officer” (in Chapter 3B) has the meaning given by section 303Z2(4),]

  • “share”, in relation to an excepted joint owner, has the meaning given by section 270(4),

  • “unlawful conduct” has the meaning given by section 241,

  • “value” means market value.

(2)The following provisions apply for the purposes of this Part.

(3)For the purpose of deciding whether or not property was recoverable at any time (including times before commencement), it is to be assumed that this Part was in force at that and any other relevant time.

(4)Property is all property wherever situated and includes—

(a)money,

(b)all forms of property, real or personal, heritable or moveable,

(c)things in action and other intangible or incorporeal property.

(5)Any reference to a person’s property (whether expressed as a reference to the property he holds or otherwise) is to be read as follows.

(6)In relation to land, it is a reference to any interest which he holds in the land.

(7)In relation to property other than land, it is a reference—

(a)to the property (if it belongs to him), or

(b)to any other interest which he holds in the property.

(8)References to the satisfaction of the enforcement authority’s right to recover property obtained through unlawful conduct are to be read in accordance with section 279.

[F1083(8A)In relation to an order in England and Wales or Northern Ireland which is a recovery order, a property freezing order, an interim receiving order or an order under section 276, references to the enforcement authority are, unless the context otherwise requires, references to the enforcement authority which is seeking, or (as the case may be) has obtained, the order.]

[F1084(8B)An enforcement authority in relation to [F1085a part of the United Kingdom] may take proceedings there for an order under Chapter 2 of this Part in respect of any property or person, whether or not the property or person is (or is domiciled, resident or present) in that part of the United Kingdom.]

(9)Proceedings against any person for an offence are concluded when—

(a)the person is convicted or acquitted,

(b)the prosecution is discontinued or, in Scotland, the trial diet is deserted simpliciter, or

(c)the jury is discharged without a finding [F1086otherwise than in circumstances where the proceedings are continued without a jury].

[F1087(10)References (in Chapter 3B) to an account being operated by or for a person are to be read in accordance with section 303Z1(3)(b).]]

Textual Amendments

F1064Words in s. 316(1) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. for specified purposes, 16.4.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 36(2)(c); S.I. 2018/78, reg. 5(3)(a)(i)(ii); S.I. 2021/724, reg. 4(g)

F1065Words in s. 316(1) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. for specified purposes, 16.4.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 36(2)(a); S.I. 2018/78, reg. 5(3)(a)(i)(ii); S.I. 2021/724, reg. 4(g)

F1066Words in s. 316(1) substituted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. for specified purposes, 16.4.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 36(2)(b); S.I. 2018/78, reg. 5(3)(a)(i)(ii); S.I. 2021/724, reg. 4(g)

F1067Words in s. 316(1) substituted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 7(a); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

F1068Words in s. 316(1) inserted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 7(b); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

F1070Words in s. 316(1) inserted (27.4.2017 (retrospective except as it extends to N.I.), 28.6.2021 for N.I.) by Financial Services Act 2021 (c. 22), s. 33(2)(3), Sch. 12 para. 21 (with s. 33(4)); S.I. 2021/739, reg. 2

F1072Words in s. 316(1) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 20(2)(a), 58(1)(6); S.I. 2018/78, reg. 3(f); S.I. 2021/724, reg. 2(1)(i)

F1073Words in s. 316(1) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 19(2)(a), 58(1)(6); S.I. 2018/78, reg. 3(f); S.I. 2021/724, reg. 2(1)(i)

F1077Words in s. 316(1) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 20(2)(b), 58(1)(6); S.I. 2018/78, reg. 3(f); S.I. 2021/724, reg. 2(1)(i)

F1078Words in s. 316(1) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 19(2)(b), 58(1)(6); S.I. 2018/78, reg. 3(f); S.I. 2021/724, reg. 2(1)(i)

F1086Words in s. 316(9)(c) inserted (24.7.2006 for E.W., 8.1.2007 in so far as not already in force) by Criminal Justice Act 2003 (c. 44), s. 336(3)(4), Sch. 36 para. 78; S.I. 2006/1835, art. 2(h), S.I. 2006/3422, art. 2(1)(c)

F1087S. 316(10) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. for specified purposes, 16.4.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 36(3); S.I. 2018/78, reg. 5(3)(a)(i)(ii); S.I. 2021/724, reg. 4(g)

Modifications etc. (not altering text)

C92S. 316(8B): power to modify conferred (25.4.2013) by Crime and Courts Act 2013 (c. 22), s. 61(11)(f), Sch. 25 para. 4(2)(f)

Part 6U.K.Revenue Functions

Modifications etc. (not altering text)

C93Pt. 6: power to repeal conferred (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 102; S.I. 2008/755, art. 2(1)(a) (with arts. 3-14)

General functionsU.K.

317 [F1088The National Crime Agency's] general Revenue functionsU.K.

(1)For the purposes of this section the qualifying condition is that [F1089the National Crime Agency] has reasonable grounds to suspect that—

(a)income arising or a gain accruing to a person in respect of a chargeable period is chargeable to income tax or is a chargeable gain (as the case may be) and arises or accrues as a result of the person’s or another’s criminal conduct (whether wholly or partly and whether directly or indirectly), or

(b)a company is chargeable to corporation tax on its profits arising in respect of a chargeable period and the profits arise as a result of the company’s or another person’s criminal conduct (whether wholly or partly and whether directly or indirectly).

(2)If the qualifying condition is satisfied [F1089the National Crime Agency] may serve on the Commissioners of Inland Revenue (the Board) a notice which—

(a)specifies the person or the company (as the case may be) and the period, and

(b)states that [F1089the National Crime Agency] intends to carry out, in relation to the person or the company (as the case may be) and in respect of the period, such of the general Revenue functions as are specified in the notice.

(3)Service of a notice under subsection (2) vests in [F1089the National Crime Agency], in relation to the person or the company (as the case may be) and in respect of the period, such of the general Revenue functions as are specified in the notice; but this is subject to section 318.

(4)[F1089the National Crime Agency]—

(a)may at any time serve on the Board a notice of withdrawal of the notice under subsection (2);

(b)must serve such a notice of withdrawal on the Board if the qualifying condition ceases to be satisfied.

(5)A notice under subsection (2) and a notice of withdrawal under subsection (4) may be in respect of one or more periods.

(6)Service of a notice under subsection (4) divests [F1089the National Crime Agency] of the functions concerned in relation to the person or the company (as the case may be) and in respect of the period or periods specified in the notice.

(7)The vesting of a function in [F1089the National Crime Agency] under this section does not divest the Board or an officer of the Board of the function.

(8)If—

(a)apart from this section the Board’s authorisation would be required for the exercise of a function, and

(b)the function is vested in [F1089the National Crime Agency] under this section,

the authorisation is not required in relation to the function as so vested.

(9)It is immaterial whether a chargeable period or any part of it falls before or after the passing of this Act.

Textual Amendments

Commencement Information

I272S. 317 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

318 Revenue functions regarding employmentU.K.

(1)Subsection (2) applies if—

(a)[F1090the National Crime Agency] serves a notice or notices under section 317(2) in relation to a company and in respect of a period or periods, and

(b)the company is an employer.

(2)The general Revenue functions vested in [F1090the National Crime Agency] do not include functions relating to any requirement which—

(a)is imposed on the company in its capacity as employer, and

(b)relates to a year of assessment which does not fall wholly within the period or periods.

(3)Subsection (4) applies if—

(a)[F1090the National Crime Agency] serves a notice or notices under section 317(2) in relation to an individual and in respect of a year or years of assessment, and

(b)the individual is a self-employed earner.

(4)The general Revenue functions vested in [F1090the National Crime Agency] do not include functions relating to any liability to pay Class 2 contributions in respect of a period which does not fall wholly within the year or years of assessment.

(5)In this section in its application to Great Britain—

(a)“self-employed earner” has the meaning given by section 2(1)(b) of the Social Security Contributions and Benefits Act 1992 (c. 4);

(b)“Class 2 contributions” must be construed in accordance with section 1(2)(c) of that Act.

(6)In this section in its application to Northern Ireland—

(a)“self-employed earner” has the meaning given by section 2(1)(b) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (c. 7);

(b)“Class 2 contributions” must be construed in accordance with section 1(2)(c) of that Act.

Textual Amendments

Commencement Information

I273S. 318 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

319 Source of incomeU.K.

(1)For the purpose of the exercise by [F1091the National Crime Agency] of any function vested in [F1092 it] by virtue of this Part it is immaterial that [F1091the National Crime Agency] cannot identify a source for any income.

(2)An assessment made by [F1091the National Crime Agency] under section 29 of the Taxes Management Act 1970 (c. 9) (assessment where loss of tax discovered) in respect of income charged to tax under [F1093Chapter 8 of Part 5 of the Income Tax (Trading and Other Income) Act 2005] must not be reduced or quashed only because it does not specify (to any extent) the source of the income.

(3)If [F1091the National Crime Agency] serves on the Board a notice of withdrawal under section 317(4), any assessment made by [F1091the National Crime Agency] under section 29 of the Taxes Management Act 1970 is invalid to the extent that it does not specify a source for the income.

(4)Subsections (2) and (3) apply in respect of years of assessment whenever occurring.

Textual Amendments

Commencement Information

I274S. 319 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

F1094320 AppealsU.K.

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

Textual Amendments

Commencement Information

I275S. 320 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

Inheritance tax functionsU.K.

321 [F1095The National Crime Agency's] functions: transfers of valueU.K.

(1)For the purposes of this section the qualifying condition is that [F1096the National Crime Agency] has reasonable grounds to suspect that—

(a)there has been a transfer of value within the meaning of the Inheritance Tax Act 1984 (c. 51), and

(b)the value transferred by [F1097the transfer of value] is attributable (in whole or part) to criminal property.

(2)If the qualifying condition is satisfied [F1096the National Crime Agency] may serve on the Board a notice which—

(a)specifies the transfer of value, and

(b)states that [F1096the National Crime Agency] intends to carry out the Revenue inheritance tax functions in relation to the transfer.

(3)Service of a notice under subsection (2) vests in [F1096the National Crime Agency] the Revenue inheritance tax functions in relation to the transfer.

(4)[F1096the National Crime Agency]—

(a)may at any time serve on the Board a notice of withdrawal of the notice under subsection (2);

(b)must serve such a notice of withdrawal on the Board if the qualifying condition ceases to be satisfied.

(5)Service of a notice under subsection (4) divests [F1096the National Crime Agency] of the Revenue inheritance tax functions in relation to the transfer.

(6)The vesting of a function in [F1096the National Crime Agency] under this section does not divest the Board or an officer of the Board of the function.

(7)It is immaterial whether a transfer of value is suspected to have occurred before or after the passing of this Act.

Textual Amendments

Commencement Information

I276S. 321 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

322 [F1098The National Crime Agency's] functions: certain settlementsU.K.

(1)For the purposes of this section the qualifying condition is that [F1099the National Crime Agency] has reasonable grounds to suspect that—

(a)all or part of the property comprised in a settlement is relevant property for the purposes of Chapter 3 of Part 3 of the Inheritance Tax Act 1984 (settlements without interest in possession), and

(b)the relevant property is (in whole or part) criminal property.

(2)If the qualifying condition is satisfied [F1099the National Crime Agency] may serve on the Board a notice which—

(a)specifies the settlement concerned,

(b)states that [F1099the National Crime Agency] intends to carry out the Revenue inheritance tax functions in relation to the settlement, and

(c)states the period for which [F1099the National Crime Agency] intends to carry them out.

(3)Service of a notice under subsection (2) vests in [F1099the National Crime Agency] the Revenue inheritance tax functions in relation to the settlement for the period.

(4)[F1099the National Crime Agency]—

(a)may at any time serve on the Board a notice of withdrawal of the notice under subsection (2);

(b)must serve such a notice of withdrawal on the Board if the qualifying condition ceases to be satisfied.

(5)Service of a notice under subsection (4) divests [F1099the National Crime Agency] of the Revenue inheritance tax functions in relation to the settlement for the period.

(6)The vesting of a function in [F1099the National Crime Agency] under this section does not divest the Board or an officer of the Board of the function.

(7)It is immaterial whether the settlement is commenced or a charge to tax arises or a period or any part of it falls before or after the passing of this Act.

Textual Amendments

Commencement Information

I277S. 322 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

GeneralU.K.

323 FunctionsU.K.

(1)The general Revenue functions are such of the functions vested in the Board or in an officer of the Board as relate to any of the following matters—

(a)income tax;

(b)capital gains tax;

(c)corporation tax;

(d)national insurance contributions;

(e)statutory sick pay;

(f)statutory maternity pay;

[F1100(g)F1101... statutory paternity pay;

F1102(ga). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(h)statutory adoption pay;

[F1103(ha)statutory shared parental pay;]

[F1104(hb)statutory parental bereavement pay;]

[F1105(hc)statutory neonatal care pay;]

(i)student loans.

(2)The Revenue inheritance tax functions are such functions vested in the Board or in an officer of the Board as relate to inheritance tax.

(3)But the general Revenue functions and the Revenue inheritance tax functions do not include any of the following functions—

(a)functions relating to the making of subordinate legislation (within the meaning given by section 21(1) of the Interpretation Act 1978 (c. 30));

(b)the function of the prosecution of offences;

(c)the function of authorising an officer for the purposes of section 20BA of the Taxes Management Act 1970 (c. 9) (orders for delivery of documents);

(d)the function of giving information under that section;

F1106(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1106(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)For the purposes of this section in its application to Great Britain—

(a)national insurance contributions are contributions payable under Part 1 of the Social Security Contributions and Benefits Act 1992 (c. 4);

(b)“statutory sick pay” must be construed in accordance with section 151(1) of that Act;

(c)“statutory maternity pay” must be construed in accordance with section 164(1) of that Act;

[F1107(d)[F1108 “statutory paternity pay” ] must be construed in accordance with sections 171ZA and 171ZB of that Act;

F1109(da). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(e)“statutory adoption pay” must be construed in accordance with section 171ZL of that Act;

[F1110(ea)statutory shared parental pay” must be construed in accordance with sections 171ZU and 171ZV of that Act;]

[F1111(eb)“statutory parental bereavement pay” must be construed in accordance with section 171ZZ6 of that Act;]

[F1112(ec)“statutory neonatal care pay” must be construed in accordance with section 171ZZ16 of that Act;]

(f)“student loans” must be construed in accordance with the Education (Student Loans) (Repayment) Regulations 2000 (S.I. 2000/944).

(5)For the purposes of this section in its application to Northern Ireland—

(a)national insurance contributions are contributions payable under Part 1 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (c. 7);

(b)“statutory sick pay” must be construed in accordance with section 147(1) of that Act;

(c)“statutory maternity pay” must be construed in accordance with section 160(1) of that Act;

(d)[F1113statutory paternity pay] must be construed in accordance with any Northern Ireland legislation which corresponds to Part 12ZA of the Social Security Contributions and Benefits Act 1992;

(e)“statutory adoption pay” must be construed in accordance with any Northern Ireland legislation which corresponds to Part 12ZB of that Act;

[F1114(ea)statutory shared parental pay” must be construed in accordance with any Northern Ireland legislation which corresponds to Part 12ZC of that Act;]

[F1115(eb)“statutory parental bereavement pay” must be construed in accordance with any Northern Ireland legislation which corresponds to Part 12ZD of that Act;]

[F1116(ec)“statutory neonatal care pay” must be construed in accordance with any Northern Ireland legislation which corresponds to Part 12ZE of that Act;]

(f)“student loans” must be construed in accordance with the Education (Student Loans) (Repayment) Regulations (Northern Ireland) 2000 (S.R. 2000/121).

Textual Amendments

F1100S. 323(1)(g)(ga) substituted for s. 323(1)(g) (6.4.2010) by Work and Families Act 2006 (c. 18), s. 19(2), Sch. 1 para. 59(2); S.I. 2010/495, art. 4(d)

F1107S. 323(4)(d)(da) substituted for s. 323(4)(d) (6.4.2010) by Work and Families Act 2006 (c. 18), s. 19(2), Sch. 1 para. 59(3); S.I. 2010/495, art. 4(d)

F1113Words in s. 323(5)(d) substituted (15.3.2015 being the date on which 1992 c. 7, Pt. 12ZC comes into force by virtue of S.R. 2015/86, art. 3(1)(d)) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 7 para. 60(4)(a); S.I. 2014/1640, art. 8(d) (with art. 18)

F1114S. 323(5)(ea) inserted (15.3.2015 being the date on which 1992 c. 7, Pt. 12ZC comes into force by virtue of S.R. 2015/86, art. 3(1)(d)) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 7 para. 60(4)(b); S.I. 2014/1640, art. 8(d) (with art. 18)

Commencement Information

I278S. 323 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

324 Exercise of Revenue functionsU.K.

(1)This section applies in relation to the exercise by [F1117the National Crime Agency] of—

(a)general Revenue functions;

(b)Revenue inheritance tax functions.

(2)[F1118Section 2B(2)] does not apply.

(3)[F1117the National Crime Agency] must apply—

(a)any interpretation of the law which has been published by the Board;

(b)any concession which has been published by the Board and which is available generally to any person falling within its terms.

(4)[F1117the National Crime Agency] must also take account of any material published by the Board which does not fall within subsection (3).

(5)[F1117the National Crime Agency] must provide the Board with such documents and information as [F1119the Board] consider appropriate.

(6)“Concession” includes any practice, interpretation or other statement in the nature of a concession.

Textual Amendments

Commencement Information

I279S. 324 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

325 DeclarationsU.K.

F1120(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F1121(2)Every [F1122National Crime Agency officer] who is assigned to carry out [F1123any function of the National Crime Agency] under this Part must, as soon as practicable after being so assigned, make a declaration in the form set out in Schedule 8 before a person nominated by the [F1124Director General of the National Crime Agency] for the purpose.]

Textual Amendments

Commencement Information

I280S. 325 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

326 InterpretationU.K.

(1)Criminal conduct is conduct which—

(a)constitutes an offence in any part of the United Kingdom, or

(b)would constitute an offence in any part of the United Kingdom if it occurred there.

(2)But criminal conduct does not include conduct constituting an offence relating to a matter under the care and management of the Board.

(3)In applying subsection (1) it is immaterial whether conduct occurred before or after the passing of this Act.

(4)Property is criminal property if it constitutes a person’s benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly); and it is immaterial—

(a)who carried out the conduct;

(b)who benefited from it.

(5)A person benefits from conduct if he obtains property as a result of or in connection with the conduct.

(6)If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage.

(7)References to property or a pecuniary advantage obtained in connection with conduct include references to property or a pecuniary advantage obtained in both that connection and some other.

(8)If a person benefits from conduct his benefit is the property obtained as a result of or in connection with the conduct.

(9)Property is all property wherever situated and includes—

(a)money;

(b)all forms of property, real or personal, heritable or moveable;

(c)things in action and other intangible or incorporeal property.

(10)The following rules apply in relation to property—

(a)property is obtained by a person if he obtains an interest in it;

(b)references to an interest, in relation to land in England and Wales or Northern Ireland, are to any legal estate or equitable interest or power;

(c)references to an interest, in relation to land in Scotland, are to any estate, interest, servitude or other heritable right in or over land, including a heritable security;

(d)references to an interest, in relation to property other than land, include references to a right (including a right to possession).

(11)Any reference to an officer of the Board includes a reference to—

(a)a collector of taxes;

(b)an inspector of taxes.

(12)Expressions used in this Part and in the Taxes Acts have the same meaning as in the Taxes Acts (within the meaning given by section 118 of the Taxes Management Act 1970 (c. 9)).

(13)This section applies for the purposes of this Part.

Commencement Information

I281S. 326 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

Part 7U.K.Money Laundering

Modifications etc. (not altering text)

OffencesU.K.

327 Concealing etcU.K.

(1)A person commits an offence if he—

(a)conceals criminal property;

(b)disguises criminal property;

(c)converts criminal property;

(d)transfers criminal property;

(e)removes criminal property from England and Wales or from Scotland or from Northern Ireland.

(2)But a person does not commit such an offence if—

(a)he makes an authorised disclosure under section 338 and (if the disclosure is made before he does the act mentioned in subsection (1)) he has the appropriate consent;

(b)he intended to make such a disclosure but had a reasonable excuse for not doing so;

(c)the act he does is done in carrying out a function he has relating to the enforcement of any provision of this Act or of any other enactment relating to criminal conduct or benefit from criminal conduct.

[F1125(2A)Nor does a person commit an offence under subsection (1) if—

(a)he knows, or believes on reasonable grounds, that the relevant criminal conduct occurred in a particular country or territory outside the United Kingdom, and

(b)the relevant criminal conduct—

(i)was not, at the time it occurred, unlawful under the criminal law then applying in that country or territory, and

(ii)is not of a description prescribed by an order made by the Secretary of State.

(2B) In subsection (2A) “ the relevant criminal conduct ” is the criminal conduct by reference to which the property concerned is criminal property. ]

[F1126(2C)A deposit-taking body [F1127, electronic money institution or payment institution] that does an act mentioned in paragraph (c) or (d) of subsection (1) does not commit an offence under that subsection if—

(a)it does the act in operating an account maintained with it, and

(b)the value of the criminal property concerned is less than the threshold amount determined under section 339A for the act.]

[F1128(2D)A person (“P”) who does an act mentioned in paragraph (c) or (d) of subsection (1) does not commit an offence under that subsection if—

(a)P is carrying on business in the regulated sector that is not excluded business,

(b)P does the act, in the course of that business—

(i)in transferring or handing over to a customer or client money or other property of, or owing to, the customer or client, and

(ii)for the purposes of the termination of P’s business relationship with the customer or client,

(c)the total value of the criminal property so transferred or handed over to the customer or client by P for those purposes is less than the threshold amount determined under section 339A for the act, and

(d)before the act is done, P has complied with the customer due diligence duties.

(2E)For the purposes of subsection (2D)—

(a)business is “excluded” if it is of a description specified in regulations made by the Secretary of State for the purposes of this paragraph;

(b)a reference to property being transferred or handed over to the customer or client includes a reference to property being transferred or handed over to another person at the direction of the customer or client;

(c)“customer due diligence duties” means all duties imposed on P in relation to the customer or client by regulation 28(2), (3), (3A), (4), (8) or (10) of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (S.I. 2017/692) (customer due diligence measures).]

[F1129(2F)A person (“P”) who does an act mentioned in paragraph (c), (d) or (e) of subsection (1) does not commit an offence under that subsection if—

(a)P is carrying on business in the regulated sector,

(b)P does the act in the course of that business, on behalf of a customer or client, in operating an account or accounts maintained with P or in connection with holding any property for the customer or client,

(c)at the time of the act, P knows or suspects that part but not all of the funds in the account or accounts, or of the property so held, is criminal property (“the relevant criminal property”),

(d)it is not possible, at the time the act takes place, to identify the part of the funds or property that is the relevant criminal property, and

(e)the value of the funds in the account or accounts, or of the property so held, is not, as a direct or indirect result of the act, less than the value of the relevant criminal property at the time of the act.

(2G)Where subsection (2F) applies—

(a)if P does the act in operating an account or accounts, the funds in the account or accounts immediately after the act are assumed to include the relevant criminal property, and

(b)if P does the act in connection with holding any property for the customer or client, such of that property as is held by P immediately after the act is assumed to include the relevant criminal property.]

(3)Concealing or disguising criminal property includes concealing or disguising its nature, source, location, disposition, movement or ownership or any rights with respect to it.

Textual Amendments

F1129S. 327(2F)(2G) inserted (26.10.2023 for specified purposes, 15.1.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), ss. 183(2), 219(1)(2)(b); S.I. 2023/1206, reg. 3(f)

Commencement Information

I282S. 327 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

328 ArrangementsU.K.

(1)A person commits an offence if he enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person.

(2)But a person does not commit such an offence if—

(a)he makes an authorised disclosure under section 338 and (if the disclosure is made before he does the act mentioned in subsection (1)) he has the appropriate consent;

(b)he intended to make such a disclosure but had a reasonable excuse for not doing so;

(c)the act he does is done in carrying out a function he has relating to the enforcement of any provision of this Act or of any other enactment relating to criminal conduct or benefit from criminal conduct.

[F1130(3)Nor does a person commit an offence under subsection (1) if—

(a)he knows, or believes on reasonable grounds, that the relevant criminal conduct occurred in a particular country or territory outside the United Kingdom, and

(b)the relevant criminal conduct—

(i)was not, at the time it occurred, unlawful under the criminal law then applying in that country or territory, and

(ii)is not of a description prescribed by an order made by the Secretary of State.

(4) In subsection (3) “ the relevant criminal conduct ” is the criminal conduct by reference to which the property concerned is criminal property. ]

[F1131(5)A deposit-taking body [F1132, electronic money institution or payment institution] that does an act mentioned in subsection (1) does not commit an offence under that subsection if—

(a)it does the act in operating an account maintained with it, and

(b)the arrangement facilitates the acquisition, retention, use or control of criminal property of a value that is less than the threshold amount determined under section 339A for the act.]

[F1133(6)A person (“P”) who does an act mentioned in subsection (1) does not commit an offence under that subsection if—

(a)P is carrying on business in the regulated sector that is not excluded business,

(b)P does the act, in the course of that business—

(i)in transferring or handing over to a customer or client money or other property of, or owing to, the customer or client, and

(ii)for the purposes of the termination of P’s business relationship with the customer or client,

(c)the total value of the criminal property so transferred or handed over to the customer or client by P for those purposes is less than the threshold amount determined under section 339A for the act, and

(d)before the act is done, P has complied with the customer due diligence duties.

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

(a)business is “excluded” if it is of a description specified in regulations made by the Secretary of State for the purposes of this subsection;

(b)a reference to property being transferred or handed over to the customer or client includes a reference to property being transferred or handed over to another person at the direction of the customer or client;

(c)“customer due diligence duties” means all duties imposed on P in relation to the customer or client by regulation 28(2), (3), (3A), (4), (8) or (10) of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (S.I. 2017/692) (customer due diligence measures).]

[F1134(8)A person (“P”) who does an act mentioned in subsection (1) does not commit an offence under that subsection if—

(a)P is carrying on business in the regulated sector,

(b)P does the act in the course of that business, on behalf of a customer or client, in operating an account or accounts maintained with P or in connection with holding any property for the customer or client,

(c)at the time of the act, P knows or suspects that part but not all of the funds in the account or accounts, or of the property so held, is criminal property (“the relevant criminal property”),

(d)it is not possible, at the time the act takes place, to identify the part of the funds or property that is the relevant criminal property, and

(e)the value of the funds in the account or accounts, or of the property so held, is not, as a direct or indirect result of the act, less than the value of the relevant criminal property at the time of the act.

(9)Where subsection (8) applies—

(a)if P does the act in operating an account or accounts, the funds in the account or accounts immediately after the act are assumed to include the relevant criminal property, and

(b)if P does the act in connection with holding any property for the customer or client, such of that property as is held by P immediately after the act is assumed to include the relevant criminal property.]

Textual Amendments

F1134S. 328(8)(9) inserted (26.10.2023 for specified purposes, 15.1.2024 in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), ss. 183(3), 219(1)(2)(b); S.I. 2023/1206, reg. 3(f)

Commencement Information

I283S. 328 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)

329 Acquisition, use and possessionU.K.

(1)A person commits an offence if he—

(a)acquires criminal property;

(b)uses criminal property;

(c)has possession of criminal property.

(2)But a person does not commit such an offence if—

(a)he makes an authorised disclosure under section 338 and (if the disclosure is made before he does the act mentioned in subsection (1)) he has the appropriate consent;

(b)he intended to make such a disclosure but had a reasonable excuse for not doing so;

(c)he acquired or used or had possession of the property for adequate consideration;

(d)the act he does is done in carrying out a function he has relating to the enforcement of any provision of this Act or of any other enactment relating to criminal conduct or benefit from criminal conduct.

[F1135(2A)Nor does a person commit an offence under subsection (1) if—

(a)he knows, or believes on reasonable grounds, that the relevant criminal conduct occurred in a particular country or territory outside the United Kingdom, and

(b)the relevant criminal conduct—

(i)was not, at the time it occurred, unlawful under the criminal law then applying in that country or territory, and

(ii)is not of a description prescribed by an order made by the Secretary of State.

(2B) In subsection (2A) “ the relevant criminal conduct ” is the criminal conduct by reference to which the property concerned is criminal property. ]