The Iraq (United Nations Sanctions) Order 2003

Article 3

SCHEDULE 1 AMENDMENT OF THE IRAQ (UNITED NATIONS SANCTIONS) ORDER 2000

Interpretation

1.—(1) In article 2(1) of the Iraq (United Nations Sanctions) Order 2000(1) (“the Order”)—

(a) before the definition of “body corporate”, insert—

““the 2003 resolution” means resolution 1483 (2003) adopted by the Security Council of the United Nations on 22nd May 2003;”;

(b) after the definition of “body corporate”, insert—

““designated funds” means funds to which a direction under article 4(1) applies;

“designated person” means a person whose funds (including those held for him or on his behalf) are subject to a direction given by the Treasury under article 4(1);

“Development Fund for Iraq” means the Development Fund for Iraq referred to in paragraph 12 of the 2003 resolution;”;

(c) after the definition of “funds”, insert—

““immediate family member” means a parent, son, daughter, spouse or sibling of the whole or half blood;”;

(d) after the definition of “relevant institution”, insert—

““Sanctions Committee” means the committee referred to in paragraph 19 of the 2003 resolution;

“senior official” means any individual who, immediately before 20th March 2003—

(a)

was a member of the Iraqi Ba'ath Party of a rank equivalent to any person identified as mentioned in article 4(1)(a) by the Sanctions Committee; or

(b)

was entitled to exercise powers or functions equivalent to those of a person mentioned in paragraph (a); or

(c)

exercised such powers or functions for the purposes of the government of the Republic of Iraq.”.

(2) After article 2(2) of the Order, add—

“(3) For the purposes of this Order, a body (“B”) is controlled by a person or government (“P”) if—

(a) P, by virtue of his or its voting power in B or otherwise, is entitled to exercise determining influence over the management of B; or

(b) B carries on activities predominantly for the purposes of P, or subject to P’s direction or approval.”.

Making funds available to designated persons

2.  For article 3 of the Order, substitute—

“3.— (1) Any person who, except under the authority of a licence granted by the Treasury under article 5, makes any funds available to a designated person is guilty of an offence.

(2) In proceedings for an offence under this article, it is a defence for the accused to show that he took all reasonable precautions and exercised all due diligence to avoid committing the offence.”.

Freezing funds

3.  For article 4 of the Order, substitute—

“4.— (1) Where—

(a) a person is identified by the Sanctions Committee in accordance with paragraph 19 of the 2003 resolution as an individual or entity falling within paragraph 23 of that resolution; or

(b) the Treasury have reasonable grounds for suspecting that a person is or may be—

(i) a senior official;

(ii) an immediate family member of a senior official; or

(iii) an entity (wherever incorporated or constituted) that—

(aa) immediately before 20th March 2003 was owned or controlled by the government of the Republic of Iraq; or

(bb) is owned or controlled by a person referred to in paragraph (1)(a) or (1)(b)(i) or (ii),

the Treasury may by notice direct that funds held by, for, or on behalf of that person are not to be made available to any person.

(2) A notice under paragraph (1) must specify either—

(a) the period for which the direction is to have effect; or

(b) that the direction is to have effect until it is revoked by notice under paragraph (3).

(3) The Treasury may by notice revoke a direction given under paragraph (1) at any time.

(4) The Treasury must publish a notice issued under paragraph (1) or (3) in the way appearing to them to be best calculated to bring it to the attention of the public.”.

Licences

4.  In article 5(4) of the Order, for “3(a) or (b)”, substitute “3(1)”.

Transfer of designated funds

5.  After article 5 of the Order, insert—

“Transfer of designated funds

5A.— (1) Within 28 days of the publication of a notice under article 4(1), any person who holds funds to which the notice applies—

(a) must cause the transfer of those funds to the account of the Development Fund for Iraq held at the Federal Reserve Bank of New York; and

(b) notify the Treasury in writing of—

(i) the identity of the person by, for, or on whose behalf he held the funds;

(ii) the amount transferred; and

(iii) the date the transfer took place.

(2) A person who holds funds to which a notice under article 4(1) applies after the expiry of the period referred to in paragraph (1) must, as soon as possible after he becomes aware that he holds such funds—

(a) cause the transfer of those funds to the account of the Development Fund for Iraq held at the Federal Reserve Bank of New York; and

(b) notify the Treasury in writing of—

(i) the identity of the person by, for, on whose behalf he held the funds;

(ii) the amount transferred; and

(iii) the date the transfer took place.

(3) Neither paragraph (1) nor (2) applies in respect of any funds that—

(a) are required to be dealt with otherwise than in accordance with that paragraph by—

(i) an order or judgment of a court or a final and binding arbitral award made on or before the day on which the amendments to this Order made by the Iraq (United Nations Sanctions) Order 2003(2) came into force; or

(ii) a binding determination made on or before that date by a public authority or under an enactment; or

(b) on or before that date were subject to a lien, charge or other like interest created or imposed as a means of enforcing an order or judgment of a court, a final and binding arbitral award or a binding determination made by a public authority or under an enactment;

(c) are authorised by a licence granted by the Treasury under article 5 to be dealt with otherwise than in accordance with that paragraph.

(4) An obligation to transfer funds under paragraph (1) or (2) applies notwithstanding any right, obligation, restriction or immunity, whether imposed or conferred by statute or otherwise, in relation to those funds.

(5) No person may be held liable in respect of any action taken for the purpose of complying with an obligation to transfer funds under paragraph (1) or (2).

(6) Funds in respect of which paragraph (1) or (2) applies are immune from any legal process (including any measure of restraint, attachment, execution or detention) requiring them to be dealt with otherwise than in accordance with this Order.

(7) Any person who fails to comply with paragraph (1) or (2) is guilty of an offence.

(8) In proceedings for an offence under this article, it is a defence for the accused to show that he took all reasonable precautions and exercised all due diligence to avoid committing the offence.”.

Facilitation of offences under article 3

6.  In article 6 of the Order, and the cross-heading before it, omit “or 4(8)”.

Failure to disclose knowledge or suspicion of sanctions offences

7.—(1) For article 8(1)(a) of the Order, substitute—

“(a) it knows or suspects that a person is a designated person, or has committed an offence under article 3, 5(4) or 5A;”.

(2) In article 8(2)(a) of the Order, for “, 4(8)”, substitute “or 5A”.

Penalties and proceedings

8.—(1) In article 11(1) of the Order—

(a) in paragraph (1), omit “, 4(8)”;

(b) in paragraph (2), before “7”, insert “5A,”;

(c) in paragraph (3), omit “4(9),”.

Article 17

SCHEDULE 2 DISCLOSURE OF INFORMATION—LISTED TERRITORIES

• Anguilla

• Bermuda

• British Antarctic Territory

• British Indian Ocean Territory

• Cayman Islands

• Falkland Islands

• Gibraltar

• Montserrat

• Pitcairn, Henderson, Ducie and Oeno Islands

• St Helena and Dependencies

• South Georgie and the South Sandwich Islands

• The Sovereign Base Areas of Akrotiri and Dhekelia in the Island of Cyprus

• Turks and Caicos Islands

• Virgin Islands

Article 18

SCHEDULE 3 EVIDENCE AND INFORMATION

1.—(1) Without prejudice to any other provision of this Order, or any provision of any other law, the Secretary of State or the Commissioners of Customs and Excise may request any person in or resident in the United Kingdom to furnish to him or to them any information in his possession or control, or to produce to him or to them any document in his possession or control, which he or they may require for the purpose of securing compliance with or detecting evasion of this Order; and any person to whom such a request is made shall comply with it within such time and in such manner as may be specified in the request.

(2) Nothing in sub-paragraph (1) shall be taken to require any person who has acted as counsel or solicitor for any person to furnish or produce any privileged information or document in his possession in that capacity.

(3) Where a person is convicted of failing to furnish information or produce a document when requested so to do under this paragraph, the court may make an order requiring him, within such period as may be specified in the order, to furnish the information or produce the document.

(4) The power conferred by this paragraph to request any person to produce documents shall include power to take copies of or extracts from any document so produced and to request that person, or, where that person is a body corporate, any other person who is a present or past officer of, or is employed by, the body corporate, to provide an explanation of any of them.

(5) The furnishing of any information or the production of any document under this paragraph shall not be treated as a breach of any restriction imposed by statute or otherwise.

2.—(1) If any justice of the peace is satisfied by information on oath given by any constable or person authorised by the Secretary of State or the Commissioners of Customs and Excise to act for the purposes of this paragraph either generally or in a particular case—

(a) that there is reasonable ground for suspecting that an offence under this Order or, with respect to any of the matters regulated by this Order, an offence under any enactment relating to customs has been or is being committed and that evidence of the commission of the offence is to be found on any premises specified in the information, or in any vehicle, ship or aircraft so specified; or

(b) that any documents which ought to have been produced under paragraph 1 and have not been produced are to be found on any such premises or in any such vehicle, ship or aircraft,

he may grant a search warrant authorising any constable or any officer of the Customs and Excise, together with any other persons named in the warrant and any other constables, to enter the premises specified in the information or, as the case may be, any premises upon which the vehicle, ship or aircraft so specified may be, at any time within one month from the date of the warrant and to search the premises, or, as the case may be, the vehicle, ship or aircraft.

(2) Any authorised person who has entered any premises or any vehicle, ship or aircraft in accordance with sub-paragraph (1) may do any or all of the following things—

(a) inspect and search those premises or the vehicle, ship or aircraft for any material which he has reasonable grounds to believe may be evidence in relation to an offence referred to in this paragraph;

(b) seize anything on the premises or on the vehicle, ship or aircraft which he has reasonable grounds for believing is evidence in relation to an offence referred to in this paragraph;

(c) seize anything on the premises or on the vehicle, ship or aircraft which he has reasonable grounds to believe are required to be produced in accordance with paragraph 1; or

(d) seize anything that is necessary to be seized in order to prevent it being concealed, lost, damaged, altered or destroyed.

(3) Any information required in accordance with sub-paragraph (2) which is contained in a computer and is accessible from the premises or from any vehicle, ship or aircraft must be produced in a form in which it can be taken away and in which it is visible and legible.

(4) A constable or officer of the Customs and Excise lawfully on the premises or on the vehicle, ship or aircraft by virtue of a warrant issued under sub-paragraph (1) may—

(a) search any person whom he has reasonable grounds to believe may be in the act of committing an offence referred to in this paragraph; and

(b) seize anything he finds in a search referred to in paragraph (a), if he has reasonable grounds for believing that it is evidence of an offence referred to in this paragraph:

Provided that no person shall be searched in pursuance of this sub-paragraph except by a person of the same sex.

(5) Where, by virtue of this paragraph, a person is empowered to enter any premises, vehicle, ship or aircraft he may use such force as is reasonably necessary for that purpose.

(6) Any documents or articles of which possession is taken under this paragraph may be retained for a period of three months or, if within that period there are commenced any proceedings for such an offence as aforesaid to which they are relevant, until the conclusion of those proceedings.

(7) In the application of this paragraph to Scotland any reference to a justice of the peace includes a reference to the sheriff; and any reference to information on oath is a reference to evidence on oath.

3.  A person authorised by the Secretary of State to exercise any power for the purposes of this Schedule shall, if requested to do so, produce evidence of his authority before exercising that power.

4.  No information furnished or document produced (including any copy of an extract made of any document produced) by a person in pursuance of a request made under this Schedule and no document seized under paragraph 2(2) shall be disclosed except:

(a) with the consent of the person by whom the information was furnished or the document was produced or the person from whom the document was seized:

Provided that a person who has obtained information or is in possession of a document only in his capacity as servant or agent of another person may not give consent for the purposes of this sub-paragraph but such consent may instead be given by any person who is entitled to that information or to the possession of that document in his own right; or

(b) to any person who would have been empowered under this Schedule to request that it be furnished or produced or to any person holding or acting in any office under or in the service of—

(i) the Crown in respect of the Government of the United Kingdom;

(ii) the Government of the Isle of Man;

(iii) the States of Guernsey or Alderney or the Chief Pleas of Sark;

(iv) the States of Jersey; or

(v) the Government of any territory listed in Schedule 2 to this Order;

(c) on the authority of the Secretary of State, to any organ of the United Nations or to any person in the service of the United Nations or of the Government of any other country for the purpose of assisting the United Nations or that Government in securing compliance with or detecting evasion of measures in relation to Iraq decided upon by the Security Council of the United Nations; or

(d) with a view to the institution of, or otherwise for the purposes of, any proceedings—

(i) in the United Kingdom, for an offence under this Order or, with respect to any of the matters regulated by this Order, for an offence against any enactment relating to customs; or

(ii) for any offence under any law making provision with respect to such matters that is in force in any of the Channel Islands, the Isle of Man or any territory listed in Schedule 2.

5.  Any person who—

(a) without reasonable excuse, refuses or fails within the time and in the manner specified (or, if no time has been specified, within a reasonable time) to comply with any request made under this Schedule by any person who is empowered to make it; or

(b) furnishes any information or produces any document which to his knowledge is false in a material particular; or recklessly furnishes any document or information which is false in a material particular to such a person in response to such a request; or

(c) otherwise wilfully obstructs any person in the exercise of his powers under this Schedule; or

(d) with intent to evade the provisions of this Schedule, destroys, mutilates, defaces, secretes or removes any document,

shall be guilty of an offence under this Order.

(1)

S.I. 2000/3241, as amended by S.I. 2001/3649.

(2)

S.I. 2003/.