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The Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005

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CHAPTER 2EXTERNAL ORDERS

Action on receipt of external order in connection with criminal convictions

104.—(1) Except where paragraph (2) applies, the Secretary of State may refer an external order arising from a criminal conviction in the country from which the order was sent and concerning relevant property in Northern Ireland to—

(a)the Director of the Agency;

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

to process it.

(2) This paragraph applies where it appears to the Secretary of State that—

(a)the property or sum of money specified in the order was found, or was believed, to have been obtained as a result of, or in connection with, criminal conduct involving serious or complex fraud, and

(b)the order concerns relevant property in Northern Ireland.

(3) Where paragraph (2) applies, the Secretary of State may refer the order to the Director of the Serious Fraud Office to process it.

(4) In this Chapter “the relevant Director” means the Director to whom an external order is referred under paragraph (1) or (3).

(5) Where an order concerns relevant property which is in England, Wales or Scotland as well as Northern Ireland, so much of the request as concerns such property shall be dealt with under Part 2 or 3, respectively.

Authentication by the overseas court

105.—(1) Paragraph (2) applies where an overseas court has authenticated its involvement in—

(a)any judgment,

(b)any order,

(c)any other document concerned with such a judgment or order or proceedings relating to it.

(2) Where this paragraph applies, any statement in the judgment, order or document is admissible in evidence in proceedings under this Chapter.

Applications to give effect to external orders

106.—(1) An application may be made by the relevant Director to the Crown Court to give effect to an external order.

(2) No application to give effect to such an order may be made otherwise than under paragraph (1).

(3) An application under paragraph (1)—

(a)shall include a request to appoint the relevant Director as the enforcement authority for the order;

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

Conditions for Crown Court to give effect to external orders

107.—(1) The Crown Court must decide to give effect to an external order by registering it where all of the following conditions are satisfied.

(2) The first condition is that the external order was made consequent on the conviction of the person named in the order and no appeal is outstanding in respect of that conviction.

(3) The second condition is that the external order is in force and no appeal is outstanding in respect of it.

(4) The third condition is that giving effect to the external order would not be incompatible with any of the Convention rights (within the meaning of the Human Rights Act 1998(1)) of any person affected by it.

(5) The fourth condition applies only in respect of an external order which authorises the confiscation of property other than money that is specified in the order.

(6) That condition is that the specified property must not be subject to a charge under any of the following provisions—

(a)section 9 of the Drug Trafficking Offences Act 1986(2);

(b)section 78 of the Criminal Justice Act 1988(3);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990(4);

(d)section 27 of the Drug Trafficking Act 1994(5);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996(6).

(7) In determining whether the order is an external order within the meaning of the Act, the Court must have regard to the definitions in subsections (2), (4), (5), (6), (8) and (10) of section 447 of the Act.

(8) In paragraph (3) “appeal” includes—

(a)any proceedings by way of discharging or setting aside the order; and

(b)an application for a new trial or stay of execution.

Registration of external orders

108.—(1) Where the Crown Court decides to give effect to an external order, it must—

(a)register the order in that court;

(b)provide for notice of the registration to be given to any person affected by it; and

(c)appoint the relevant Director as the enforcement authority for the order.

(2) Only an external order registered by the Crown Court may be implemented under this Chapter.

(3) The Crown Court may cancel the registration of the external order, or vary the property to which it applies, on an application by the relevant Director or any person affected by it if, or to the extent that, the court is of the opinion that any of the conditions in article 107 is not satisfied.

(4) The Crown Court must cancel the registration of the external order, on an application by the relevant Director or any person affected by it, if it appears to the court that the order has been satisfied—

(a)in the case of an order for the recovery of a sum of money specified in it, by payment of the amount due under it, or

(b)in the case of an order for the recovery of specified property, by the surrender of the property, or

(c)by any other means.

(5) Where the registration of an external order is cancelled or varied under paragraph (3) or (4), the Crown Court must provide for notice of this to be given to the relevant Director and any person affected by it.

Appeal to Court of Appeal about external orders

109.—(1) If on an application for the Crown Court to give effect to an external order by registering it, the court decides not to do so, the relevant Director may appeal to the Court of Appeal against the decision.

(2) If an application is made under article 108(3) in relation to the registration of an external order, the following persons may appeal to the Court of Appeal in respect of the Crown Court’s decision on the application—

(a)the relevant Director;

(b)any person affected by the registration.

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

(a)confirm the decision or set aside the decision to register; or

(b)direct the Crown Court to register the external order (or so much of it as relates to property other than that to which article 107(6) applies).

Appeal to House of Lords about external orders

110.—(1) An appeal lies to the House of Lords from a decision of the Court of Appeal on an appeal under article 109.

(2) An appeal under this article 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 article the House of Lords may—

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

(b)direct the Crown Court to register the external order (or so much of it as relates to property other than that to which article 107(6) applies).

Sums in currency other than sterling

111.—(1) This article applies where the external order which is registered under article 108 specifies a sum of money.

(2) If the sum of money which is specified is expressed in a currency other than sterling, the sum of money to be recovered is to be taken to be the sterling equivalent calculated in accordance with the rate of exchange prevailing at the end of the working day immediately preceding the day when the Crown Court registered the external order under article 108.

(3) The sterling equivalent must be calculated by the relevant Director.

(4) The notice referred to in article 108(1)(b) and (5) must set out the amount in sterling which is to be paid.

(5) In this article “working day” means any day other than—

(a)a Saturday or Sunday;

(b)Christmas Day;

(c)Good Friday;

(d)any day that is a bank holiday in Northern Ireland under the Banking and Financial Dealings Act 1971(7).

Time for payment

112.—(1) This article applies where the external order is for the recovery of a specified sum of money.

(2) Subject to paragraphs (3) to (6), the amount ordered to be paid under—

(a)an external order that has been registered under article 108, or

(b)where article 111(2) applies, the notice under article 108(1)(b),

must be paid on the date on which the notice under article 108(1)(b) is delivered to the person affected by it.

(3) Where there is an appeal under article 109 or 110 and a sum falls to be paid when the appeal has been determined or withdrawn, the duty to pay is delayed until the day on which the appeal is determined or withdrawn.

(4) If the person affected by an external order which has been registered shows that he needs time to pay the amount ordered to be paid, the Crown Court which registered the order may make an order allowing payment to be made in a specified period.

(5) The specified period—

(a)must start with the day on which the notice under 108(1)(b) was delivered to the person affected by the order or the day referred to in paragraph (3), as the case may be, and

(b)must not exceed six months.

(6) If within the specified period the person affected by an external order applies to the Crown Court which registered the order for the period to be extended and the court believes that there are exceptional circumstances, it may make an order extending the period.

(7) The extended period—

(a)must start with the day on which the notice under article 108(1)(b) was delivered to the person affected by it or the day referred to in paragraph (3), as the case may be, and

(b)must not exceed 12 months.

(8) An order under paragraph (6)—

(a)may be made after the end of the specified period, but

(b)must not be made after the end of the extended period.

(9) The court must not make an order under paragraph (4) or (6) unless it gives the relevant Director an opportunity to make representations.

Appointment of enforcement receivers

113.—(1) This article applies if—

(a)an external order is registered,

(b)it is not satisfied, and

(c)in the case of an external order for the recovery of a specified sum of money, any period specified by order under article 112 has expired.

(2) On the application of the relevant Director, other than the Director of the Agency, the Crown Court may by order appoint a receiver in respect of—

(a)where the external order is for the recovery of a specified sum of money, realisable property;

(b)where the external order is for the recovery of specified property, that property.

Powers of enforcement receivers in respect of monetary external orders

114.—(1) If the court appoints a receiver under article 113, it may act under this article on the application of the relevant Director, other than the Director of the Agency, where the external order is for the recovery of a specified sum of money.

(2) The court may by order confer on the receiver the following powers in relation to any 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.

(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 purposes 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 payment being made) by order transfer, grant or extinguish any interest in the property.

(7) Paragraphs (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;

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

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990;

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

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996.

(8) The court must not—

(a)confer the power mentioned in paragraph (2)(b) or (c) in respect of property, or

(b)exercise the power conferred on it by paragraph (6) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

(9) The court may order that a power conferred by an order under this article 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.

Powers of enforcement receivers in respect of external orders for the recovery of specified property

115.—(1) If the court appoints a receiver under article 113, it may act under this article on the application of the relevant Director (other that the Director of the Agency) where the external order is for the recovery of property specified in the order (“the specified property”).

(2) The court may by order confer on the receiver the following powers in relation to the specified 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.

(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 purposes 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 the specified property to give possession of it to the receiver.

(6) The court—

(a)may order a person holding an interest in the specified 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) The court must not—

(a)confer the power mentioned in paragraph (2)(b) or (c) in respect of property, or

(b)exercise the power conferred on it by paragraph (6) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

(8) The court may order that a power conferred by an order under this article is subject to such conditions and exceptions as it specifies.

(9) 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.

Appointment of Director of Agency’s receivers

116.—(1) This article applies if—

(a)an external order is registered, and

(b)the Director of the Agency is appointed as the enforcement authority for the order under article 108.

(2) If this article applies, the Crown Court must make an order for the appointment of a receiver in respect of—

(a)where the external order is for the recovery of a specified sum of money, realisable property;

(b)where the external order is for the recovery of specified property, that property.

(3) An order under paragraph (2)—

(a)must confer power on the Director to nominate the person who is to be the receiver, and

(b)takes effect when the Director nominates that person.

(4) The Director must not nominate a person under paragraph (3) unless at the time he does so—

(a)the external order is not satisfied, and

(b)in the case of an external order for the recovery of a specified sum of money, any period specified by order under article 112 has expired.

(5) A person nominated to be the receiver under paragraph (3) may be—

(a)a member of the staff of the Agency;

(b)a person providing services under arrangements made by the Director.

Powers of Director of Agency’s receivers in respect of monetary external orders

117.—(1) If the court makes an order for the appointment of a receiver under article 116, it may act under this article on the application of the Director of the Agency where the external order is for the recovery of a specified sum of money.

(2) The court may by order confer on the receiver the following powers in relation to any 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.

(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) Paragraphs (2), (5) and (6) do not apply to property for the time being subject to a charge under any of the following provisions—

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

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

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990;

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

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996.

(8) The court must not—

(a)confer the power mentioned in paragraph (2)(b) or (c) in respect of property, or

(b)exercise the power conferred on it by paragraph (6) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

(9) The court may order that a power conferred by an order under this article is subject to such conditions and exceptions as it specifies.

(10) Managing or otherwise dealing with property include—

(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.

Powers of Director of Agency’s receivers in respect of external orders for the recovery of specified property

118.—(1) If the court makes an order for the appointment of a receiver under article 116, it may act under this article on the application of the Director of the Agency where the external order is for the recovery of property specified in the order (“the specified property”).

(2) The court may by order confer on the receiver the following powers in relation to the specified 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 legal proceedings in respect of 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 the specified property to give possession of it to the receiver.

(6) The court—

(a)may order a person holding an interest in the specified 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) The court must not—

(a)confer the power mentioned in paragraph (2)(b) or (c) in respect of property, or

(b)exercise the power conferred on it by paragraph (6) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

(8) The court may order that a power conferred by an order under this article is subject to such conditions and exceptions as it specifies.

(9) 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.

Application of sums by enforcement receivers

119.—(1) This article applies to sums which are in the hands of a receiver appointed under article 113 if they are—

(a)the proceeds of the realisation of property under article 114 or 115;

(b)where article 114 applies, sums (other than those mentioned in sub-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 paragraph by virtue of article 3;

(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 external order.

(3) If the amount payable under the external 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 paragraph (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 paragraphs (3) and (4) the property concerned is—

(a)the property represented by the proceeds mentioned in paragraph (1)(a);

(b)the sums mentioned in paragraph (1)(b).

(6) The receiver applies sums as mentioned in paragraph (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 external order was registered.

Sums received by appropriate chief clerk

120.—(1) This article applies if the appropriate chief clerk receives sums on account of the amount payable under a registered external order or the value of the property specified in the order.

(2) The appropriate 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 paragraph by virtue of article 3, but

(b)are not already paid under article 119(2)(a).

(4) He must next apply them—

(a)first, in payment of the remuneration and expenses of a receiver appointed under article 101 to the extent that they have not been met by virtue of the exercise by that receiver of a power conferred under article 102(2)(d);

(b)second, in payment of the remuneration and expenses of the receiver appointed under article 113.

(5) If any amount remains after the appropriate chief clerk makes any payments required by the preceding provisions of this article, the amount must be treated for the purposes of section 20 of the Administration of Justice Act (Northern Ireland) 1954(8) (application of fines) as if it were a fine.

(6) Paragraph (4) does not apply if the receiver is a member of the staff of the Public Prosecution Service for Northern Ireland, or the Serious Fraud Office; and it is immaterial whether he is a permanent or temporary member or he is on secondment from elsewhere.

Application of sums by Director of Agency’s receivers

121.—(1) This article applies to sums which are in the hands of a receiver appointed under article 116 if they are —

(a)the proceeds of the realisation of property under article 117 or 118;

(b)where article 117 applies sums (other than those mentioned in sub-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 paragraph by virtue of article 3;

(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 external order by being paid to the Director on account of the amount payable under it.

(3) If the amount payable under the external 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 paragraph (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 paragraphs (3) and (4) the property concerned is—

(a)the property represented by the proceeds mentioned in paragraph (1)(a);

(b)the sums mentioned in paragraph (1)(b).

Application of sums received by the Director of the Agency

122.—(1) This article applies if the Director of the Agency receives sums on account of the amount payable under a registered external order or the value of the property specified in the order.

(2) The Director’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 paragraph by virtue of article 3, but

(b)are not already paid under article 121(2)(a).

(4) He must next apply them—

(a)first, in payment of the remuneration and expenses of a receiver appointed under article 101, to the extent that they have not been met by virtue of the exercise by that receiver of a power conferred under article 102(2)(d);

(b)second, in payment of the remuneration and expenses of the receiver appointed under article 116.

(5) Paragraph (4) does not apply if the receiver is a member of the staff of the Agency or a person providing services under arrangements made by the Director.

Satisfaction of external order

123.—(1) A registered external order is satisfied when no amount is due under it.

(2) Where such an order authorises the recovery of property specified in it, no further amount is due under the order when all of the specified property has been sold.

Restrictions relating to enforcement receivers

124.—(1) Paragraphs (2) and (3) apply if a court makes an order under article 113 appointing a receiver in respect of any realisable property or specified 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 paragraph (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 paragraph 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 article 113 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 paragraph (4), the court must give an opportunity to be heard to—

(a)the relevant Director (other than the Director of the Agency), and

(b)the receiver (if the order under article 113 has been made).

Restrictions relating to Director of the Agency’s receivers

125.—(1) Paragraphs (2) and (3) apply if—

(a)the Crown Court has made an order under article 116 for the appointment of a receiver in respect of any realisable property or specified property, and

(b)the order has taken effect.

(2) If the order is for the appointment of a receiver in respect of a tenancy of any premises, no landlord or other person to whom rent is payable may exercise a right within paragraph (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 paragraph 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 (whether the Crown Court or any other court) in which proceedings are pending in respect of any property is satisfied that an order under article 116 for the appointment of a receiver in respect of the property has taken effect, 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 paragraph (4), the court must give an opportunity to be heard to—

(a)the Director of the Agency, and

(b)the receiver.

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