The Proceeds of Crime Act 2002 (External Requests and Orders) (Amendment) Order 2013

EXPLANATORY NOTE

(This note is not part of the Order)

This Order makes provision for a prohibition on dealing with relevant property which is the subject of an external request, within the meaning of section 447(1) of the Proceeds of Crime Act 2002 (c. 29) (“the 2002 Act”), by means of proceedings before the High Court (in England, Wales or Northern Ireland) or the Court of Session (in Scotland). The provisions correspond (subject to specified modifications) to the civil recovery provisions in the 2002 Act. Overseas requests that are criminal in nature will continue to be dealt with through the provisions in the Crime (International Co-operation) Act 2003 (c. 32).

Article 3 inserts new Parts 4A and 4B into the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (S.I. 2005/3181) (“the 2005 Order”).

In relation to England, Wales and Northern Ireland, articles 141A and 141B provide that the Secretary of State may refer to an enforcement authority an external request to prohibit dealing with relevant property in England and Wales or Northern Ireland. The enforcement authority may obtain from the High Court a prohibition order in certain circumstances. The external request may concern relevant property whether or not proceedings have been brought for an offence in connection with the property in the country sending the request.

Articles 141C and 141D explain where proceedings are to take place and the powers of the High Court to prohibit a person from dealing with relevant property by way of a prohibition order.

Article 141E identifies who can make an application for a prohibition order and it enables the High Court to vary or set aside a prohibition order.

Article 141F sets out when relevant property will not be the subject of a prohibition order.

Article 141G provides that the High Court may exclude property from the prohibition order and make exclusions from the prohibition on dealing with property to which the prohibition order applies.

Article 141H provides restrictions on proceedings and remedies in respect of property to which a prohibition order applies.

Articles 141I and 141J enables the High Court to appoint a receiver in respect of property to which a prohibition order applies and deals with the powers of the receiver. The application for the receiver is made by the enforcement authority whether as part of the application for a prohibition order or at any time afterwards.

Article 141K provides for the supervision of the receiver and enables the receiver, any party to the proceedings and anyone else affected by the receiver’s actions to ask the High Court to clarify the receiver’s powers.

Articles 141L and 141M ensure that where a prohibition order affecting land is applied for, its effect may be reinforced by taking action at the Land Registry to prevent disposal of the land in question.

Article 141N deals with the case where property has been made subject to a prohibition order but the prohibition order is set aside or varied. The person whose property it is may, in certain circumstances, seek compensation at the discretion of the High Court.

Article 141O provides that the enforcement authority may not apply for a prohibition order unless it reasonably believes that the aggregate value of the relevant property which will be the subject of the prohibition order is not less than £10,000. This ensures that prohibition orders will not be used in minor or trivial cases.

Article 141P and 141Q sets out the interrelationship between prohibition orders and insolvency proceedings.

Articles 141ZA to 141ZM of Part 4B make similar provision for Scotland to that in Part 4A for England, Wales and Northern Ireland.

Article 4 sets a limitation period within which proceedings may be brought and widens the scope of when proceedings are deemed to have been brought.

Article 5 makes similar provision to article 4 but in relation to the Limitation (Northern Ireland) Order 1989 (S.I. 1989/1339 (NI 11)).

Article 6 makes similar provision to articles 4 and 5 but in relation to the Prescription and Limitation (Scotland) Act 1973 (c.52).