The Proceeds of Crime Act 2002 (External Requests and Orders) (Amendment) Order 2015

PART 5 Amendment of Part 4A of the 2005 Order

Amendment of Part 4A of the 2005 Order

32.  Part 4A of the 2005 Order(1) (giving effect in England and Wales and Northern Ireland to external requests by means of civil proceedings) is amended as follows.

Amendment of article 141G (exclusions)

33.  In article 141G (exclusions)(2), after paragraph (4) insert—

“(4A) Where the 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 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 article 198) in addition to any conditions imposed under paragraph (4).

(4B) The court, in deciding whether to make an exclusion for the purpose of enabling a person to meet their legal expenses 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 the person 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 made available under arrangements made for the purposes of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.”.

Insertion of articles 141NA and 141NB

34.  After article 141N (compensation)(3) insert—

Legal expenses excluded from prohibition: required conditions

141NA.— (1) The Lord Chancellor may by regulations specify the required conditions for the purposes of article 141G(4A).

(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 paragraph (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 article 141NB 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 article 141NB in respect of that item and the sum is released for payment of the assessed amount.

(4) Before making regulations under this article, the Lord Chancellor must consult such persons as the Lord Chancellor considers appropriate.

Legal expenses: regulations for purposes of article 141G(4A)

141NB.— (1) The Lord Chancellor may by regulations make provision for the purposes of required conditions that make provision of the kind mentioned in article 141NA(3)(b) or (c).

(2) Regulations under this article 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 article, the Lord Chancellor must consult such persons as the Lord Chancellor considers appropriate.”.

Amendment of article 149 (property freezing orders: exclusions)

35.  In article 149 (property freezing orders: exclusions), for paragraph (3)(a) substitute—

“(a) to meet their reasonable living expenses;

(aa) to meet their reasonable legal expenses in connection with the property freezing order; or”.

Amendment of article 157 (interim receiving orders: restrictions on dealing etc with property)

36.  In article 157 (interim receiving orders: restrictions on dealing etc with property), for paragraph (3) substitute—

“(3) An exclusion may, in particular, make provision for the purpose of enabling any person—

(a) to meet their reasonable living expenses;

(b) to meet their reasonable legal expenses in connection with the interim receiving order; or

(c) to carry on any trade, business, profession or occupation.

(3A) An exclusion may be made subject to conditions.”.

(1)

Part 4A was inserted by S.I. 2013/2604.

(2)

Article 141G was inserted by S.I. 2013/2604.

(3)

Article 141N was inserted by S.I. 2013/2604.