The Criminal Procedure Rules 2015

Overseas confiscation orders

49.13.—(1) This rule applies where—

(a) the Crown Court can give effect to an overseas confiscation order under regulation 15 of the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014(1);

(b) the Director of Public Prosecutions or the Director of the Serious Fraud Office receives a request from a court or authority in another European Union member State to give effect to such an order; and

(c) the Director serves on the Crown Court officer—

(i) the certificate which accompanied the request for enforcement of the order, and

(ii) a copy of the confiscation order to which that certificate relates.

(2) The court—

(a) must not consider the order unless the Director—

(i) is present, or

(ii) has had a reasonable opportunity to make representations;

(b) subject to that, may consider the order—

(i) at a hearing, which must be in private unless the court otherwise directs, or

(ii) without a hearing.

(3) If the court decides to give effect to the order, the court must—

(a) direct its registration as an order of the Crown Court; and

(b) give directions for notice of the order to be given to any person affected by it.

(4) Paragraph (5) applies where a person affected by the order, or the Director, wants the court to cancel the registration or vary the property to which the order applies.

(5) Such a person must—

(a) apply in writing as soon as practicable after becoming aware of the grounds for doing so;

(b) serve the application on the court officer and, as applicable—

(i) the other party, and

(ii) any other person who will or may be affected;

(c) explain, as applicable—

(i) when the overseas confiscation order ceased to have effect in the European Union member State in which it was made,

(ii) why continuing to give effect to that order would be statute-barred, provided that the criminal conduct that gave rise to the order falls within the jurisdiction of England and Wales,

(iii) why continuing to give effect to that order would be impossible as a consequence of an immunity under the law of England and Wales,

(iv) why continuing to give effect to that order would be incompatible with a Convention right within the meaning of the Human Rights Act 1998,

(v) why therefore it is appropriate for the registration to be cancelled or varied;

(d) include with the application any evidence in support;

(e) propose the terms of any variation; and

(f) ask for a hearing, if one is wanted, and explain why it is needed.

[Note. See regulations 13, 14 and 15 of the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014(2).

An overseas confiscation order is an order made by a court or authority in a European Union member State for the confiscation of property which is in England and Wales, or is the property of a resident of England and Wales, and which the court or authority considers—

(a) was used or intended to be used for the purposes of criminal conduct; or

(b) is the proceeds of criminal conduct.

Where this rule applies, the Crown Court—

(a) may decide not to give effect to an overseas confiscation order only if that would be—

(i) statute-barred, provided that the criminal conduct that gave rise to the order falls within the jurisdiction of England and Wales,

(ii) impossible as a consequence of an immunity under the law of England and Wales, or

(iii) incompatible with a Convention right within the meaning of the Human Rights Act 1998;

(b) may postpone giving effect to an overseas confiscation order in respect of any property—

(i) in order to avoid prejudicing a criminal investigation which is taking place in the United Kingdom,

(ii) where the court considers that there is a risk that the amount recovered through the execution of the order in England and Wales may exceed the amount specified in the order because of the simultaneous execution of the order in more than one member State,

(iii) if, under an order made by a court in criminal proceedings in the UK, the property may not be dealt with, or the property is subject to proceedings for such an order, or

(iv) if a person affected by the order has applied to cancel the registration, or vary the property to which it applies;

(c) may cancel a registration, or vary the property to which an order applies, if or to the extent that—

(i) any of the circumstances listed in paragraph (a) of this note applies, or

(ii) the order has ceased to have effect in the member State in which it was made.]

Under regulation 15(7) of the 2014 Regulations, no challenge to the substantive reasons in relation to which an overseas restraint order has been made by an appropriate court or authority in a European Union member State may be considered by the court.

Regulation 3 of the 2014 Regulations applies also where this rule applies. See the note to rule 49.12.]

(1)

S.I. 2014/3141.

(2)

S.I. 2014/3141.