Made | 15th November 2005 | ||
Laid before Parliament | 25th November 2005 | ||
Coming into force | 31st December 2005 |
to process it.
(2) This paragraph applies where it appears to the Secretary of State that the request—
(3) Where paragraph (2) applies, the Secretary of State may refer the request to the Director of the Serious Fraud Office to process it.
(4) In this Order the "relevant Director" means the Director to whom a request is referred under paragraph (1) or (3).
(5) The relevant Director may ask the overseas authority which made the request for such further information as may be necessary to determine whether the request is likely to satisfy the conditions in article 4.
(6) A request under paragraph (5) may include a request for statements which may be used as evidence.
Conditions for Crown Court to give effect to request
4.
—(1) On an application by a relevant Director, the Crown Court may exercise the powers conferred by article 5 if the following conditions are satisfied.
(2) The conditions are that—
(3) If these conditions are satisfied by virtue of a criminal investigation having been started, references in this Order to the defendant are to the alleged offender.
Restraint orders
5.
—(1) If the conditions set out in article 4 are satisfied, the Crown Court may make an order ("a restraint order") prohibiting any specified person from dealing with relevant property which is identified in the request and specified in the order.
(2) A restraint order may be made subject to exceptions, and an exception may in particular—
(3) Paragraph (4) applies if—
(4) The court may make such order as it believes is appropriate for the purpose of ensuring that the restraint order is effective.
(5) A restraint order does not affect property for the time being subject to a charge under any of these provisions—
(6) Dealing with property includes removing it from England and Wales.
Application, discharge and variation of restraint orders
6.
—(1) A restraint order—
(2) An application to discharge or vary a restraint order or an order under article 5(4) may be made to the Crown Court by—
(3) Paragraphs (4) to (6) apply to an application under paragraph (2).
(4) The court—
(5) If the conditions in article 4 were satisfied by virtue of the fact that proceedings were started, the court must discharge the order if—
(6) If the conditions in article 4 were satisfied by virtue of the fact that an investigation was started, the court must discharge the order if within a reasonable time proceedings for the offence are not started.
Appeal to Court of Appeal about restraint orders
7.
—(1) If on an application for a restraint order the Crown Court decides not to make one, the relevant Director may appeal to the Court of Appeal against the decision.
(2) If an application is made under article 6(2) in relation to a restraint order or an order under article 5(4), the following persons may appeal to the Court of Appeal in respect of the Crown Court's decision on the application—
(3) On an appeal under paragraph (1) or (2) the Court of Appeal may—
Appeal to House of Lords about restraint orders
8.
—(1) An appeal lies to the House of Lords from a decision of the Court of Appeal on an appeal under article 7.
(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—
Seizure in pursuance of restraint order
9.
—(1) If a restraint order is in force a constable or a relevant officer of Revenue and Customs may seize any property which is specified in it to prevent its removal from England and Wales.
(2) Property seized under paragraph (1) must be dealt with in accordance with the directions of the court which made the order.
Hearsay evidence in restraint proceedings
10.
—(1) Evidence must not be excluded in restraint proceedings on the ground that it is hearsay (of whatever degree).
(2) Sections 2 to 4 of the Civil Evidence Act 1995[8] apply in relation to restraint proceedings as those sections apply in relation to civil proceedings.
(3) Restraint proceedings are proceedings—
(4) Hearsay is a statement which is made otherwise than by a person while giving oral evidence in the proceedings and which is rendered as evidence of the matters stated.
(5) Nothing in this article affects the admissibility of evidence which is admissible apart from this article.
Supplementary (restraint orders)
11.
—(1) The registration Acts—
(2) The registration Acts are—
(3) But no notice may be entered in the register of title under the Land Registration Act 2002 in respect of a restraint order.
Appointment of management receivers
12.
—(1) Paragraph (2) applies if—
(2) The Crown Court may by order appoint a receiver in respect of any property which is specified in the restraint order.
Powers of management receivers
13.
—(1) If the court appoints a receiver under article 12 it may act under this article on the application of the relevant Director.
(2) The court may by order confer on the receiver the following powers in relation to any property which is specified in the restraint order—
(3) The court may by order confer on the receiver power to enter any premises in England and Wales and to do any of the following—
(4) The court may by order authorise the receiver to do any of the following for the purpose of the exercise of his functions—
(5) The court may order any person who has possession of property which is specified in the restraint order to give possession of it to the receiver.
(6) The court—
(7) Paragraphs (2), (5) and (6) do not apply to property for the time being subject to a charge under any of these provisions—
(8) The court must not—
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—
Restrictions relating to restraint orders
14.
—(1) Paragraphs (2) to (4) apply if a court makes a restraint order.
(2) No distress may be levied against any property which is specified in the order except with the leave of the Crown Court and subject to any terms the Crown Court may impose.
(3) If the order applies to a tenancy of any premises, no landlord or other person to whom rent is payable may exercise a right within paragraph (4) except with the leave of the Crown Court and subject to any terms the Crown Court may impose.
(4) 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.
(5) If a court in which proceedings are pending in respect of any property is satisfied that a restraint order has been applied for or made in respect of the property, the court may either stay the proceedings or allow them to continue on any terms it thinks fit.
(6) Before exercising any power conferred by paragraph (5), the court must give an opportunity to be heard to—
to process it.
(2) This paragraph applies where it appears to the Secretary of State that —
(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 Part "the relevant Director" means the Director to whom an external forfeiture order is referred under paragraph (1) or (3).
Authentication by the overseas court
16.
—(1) Paragraph (2) applies where an overseas court has authenticated its involvement in—
(2) Where this paragraph applies, any statement in the judgment, order or document is admissible in evidence in proceedings under this Part.
Applications to give effect to external forfeiture orders
17.
—(1) An application may be made by the relevant Director to the Crown Court to give effect to an external forfeiture 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) —
Conditions for Crown Court to give effect to external forfeiture orders
18.
—(1) The Crown Court must decide to give effect to an external forfeiture order if it is satisfied that all of the following conditions are met.
(2) The first condition is that the external forfeiture 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 forfeiture order is in force and no appeal is outstanding in respect of it.
(4) The third condition is that giving effect to the external forfeiture order would not be incompatible with any of the Convention rights (within the meaning of the Human Rights Act 1998[16]) of any person affected by it.
(5) The fourth condition is that the property whose confiscation is specified in the external forfeiture order must not be subject to a charge under any of the following provisions—
(6) In paragraph (3) "appeal" includes—
Registration of external forfeiture orders
19.
—(1) Where the Crown Court decides to give effect to an external forfeiture order, it must
(2) Only an external forfeiture order registered by the Crown Court may be implemented under this Order.
(3) The Crown Court may cancel the registration of the external forfeiture 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 18 is not satisfied.
(4) The Crown Court must cancel the registration of the external forfeiture 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—
(5) Where the registration of an external forfeiture 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 forfeiture orders
20.
—(1) If on an application for the Crown Court to give effect to an external forfeiture 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 19(3) or (4) in relation to the registration of an external forfeiture order, the following persons may appeal to the Court of Appeal in respect of the Crown Court's decision on the application—
(3) On an appeal under paragraph (1) or (2) the Court of Appeal may—
Appeal to House of Lords about external forfeiture orders
21.
—(1) An appeal lies to the House of Lords from a decision of the Court of Appeal on an appeal under article 20.
(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—
Appointment of enforcement receivers
22.
—(1) This article applies if—
(2) On the application of the relevant Director, the Crown Court may by order appoint a receiver in respect of the property in respect of which the external forfeiture order specifies the recovery.
Powers of enforcement receivers in respect of external forfeiture orders for the recovery of specified property
23.
—(1) If the court appoints a receiver under article 22, it may act under this article on the application of the relevant Director where the external forfeiture 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—
(3) The court may by order confer on the receiver power to enter any premises in England and Wales and to do any of the following—
(4) The court may by order authorise the receiver to do any of the following for the purposes of the exercise of his functions—
(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—
(7) The court must not—
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—
Satisfaction of external forfeiture order
24.
A registered external forfeiture order is satisfied when the property specified in it has been forfeited and disposed of in accordance with that order.
Restrictions relating to enforcement receivers
25.
—(1) Paragraphs (2) to (4) apply if a court makes an order under article 22 appointing a receiver in respect of any specified property.
(2) No distress may be levied against the property except with the leave of the Crown Court and subject to any terms the Crown Court may impose.
(3) 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 (4) except with the leave of the Crown Court and subject to any terms the Crown Court may impose.
(4) 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.
(5) If a court in which proceedings are pending in respect of any property is satisfied that an order under article 22 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.
(6) Before exercising any power conferred by paragraph (5), the court must give an opportunity to be heard to—
he is not liable to any person in respect of any loss or damage resulting from the action, except so far as the loss or damage is caused by his negligence.
(2) Any amount due in respect of the remuneration and expenses of a receiver so appointed shall be paid by the person on whose application the receiver was appointed.
Further applications by receivers
27.
—(1) This article applies to a receiver appointed under article 12 or 22.
(2) The receiver may apply to the Crown Court for an order giving directions as to the exercise of his powers.
(3) The following persons may apply to the Crown Court—
(4) On an application under this article the court may make such order as it believes is appropriate.
Discharge and variation of receiver orders
28.
—(1) The following persons may apply to the Crown Court to vary or discharge an order made under article 12, 13, 22 or 23—
(2) On an application under this article the court—
(3) But in the case of an order under article 12 or 13—
Management receivers: discharge
29.
—(1) This article applies if—
(2) The court must order the management receiver to transfer to the other receiver all property held by the management receiver by virtue of the powers conferred on him by article 13.
(3) Paragraph (2) does not apply to property which the management receiver holds by virtue of the exercise by him of his power under article 13(2)(d).
(4) If the management receiver complies with an order under paragraph (2) he is discharged—
(5) If this article applies the court may make such a consequential or incidental order as it believes is appropriate.
Appeal to Court of Appeal about receivers
30.
—(1) If on an application for an order under any of articles 12, 13, 22 or 23 the court decides not to make one, the person who applied for the order may appeal to the Court of Appeal against the decision.
(2) If the court makes an order under any of articles 12, 13, 22 or 23, the following persons may appeal to the Court of Appeal in respect of the court's decision—
(3) If on an application for an order under article 27 the court decides not to make one, the person who applied for the order may appeal to the Court of Appeal against the decision.
(4) If the court makes an order under article 27 the following persons may appeal to the Court of Appeal in respect of the court's decision—
(5) The following persons may appeal to the Court of Appeal against a decision of the court on an application under article 28—
(6) On an appeal under this article the Court of Appeal may—
Appeal to the House of Lords about receivers
31.
—(1) An appeal lies to the House of Lords from a decision of the Court of Appeal on an appeal under article 30.
(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—
Powers of court and receiver
32.
—(1) This article applies to—
(2) The powers—
(3) Paragraph (2) has effect subject to the following rules—
(4) If on an application by the defendant or the recipient of a tainted gift, the court decides that property cannot be replaced it may order that it must not be sold.
(5) An order under paragraph (4) may be revoked or varied.
Procedure on appeal to Court of Appeal under this Order
33.
—(1) An appeal to the Court of Appeal under this Order lies only with the leave of that Court.
(2) Subject to rules of court made under section 53(1) of the Supreme Court Act 1981[22] (distribution of business between civil and criminal divisions) the criminal division of the Court of Appeal is the division—
(3) In relation to appeals to the Court of Appeal under this Order, the Secretary of State may make an order containing provision corresponding to any provision in the Criminal Appeal Act 1968[23], subject to any specified modifications.
(4) Subject to any rules of court, the costs of and incidental to all proceedings on an appeal to the criminal division of the Court of Appeal under article 7, 20 or 30 are in the discretion of the court.
(5) The court shall have full power to determine by whom and to what extent the costs are to be paid.
(6) In any proceedings mentioned in paragraph (4), the court may—
the whole of any wasted costs or such part of them as may be determined in accordance with rules of court.
(7) In paragraph (6) "wasted costs" means any costs incurred by a party—
(8) "Legal or other representative", in relation to a party to proceedings, means any person exercising a right of audience or right to conduct litigation on his behalf.
Procedure on appeal to House of Lords under this Order
34.
—(1) Section 33(3) of the Criminal Appeal Act 1968 (limitation on appeal from criminal division of the Court of Appeal) does not prevent an appeal to the House of Lords under this Order.
(2) In relation to appeals to the House of Lords under this Order, the Secretary of State may make an order containing provision corresponding to any provision in the Criminal Appeal Act 1968, subject to any specified modifications.
External forfeiture orders
36.
—(1) An order made—
is referred to in this Order as an "external forfeiture order".
(2) In paragraph (1)–
Designated countries
37.
The countries or territories set out in Schedule 2 to this Order are hereby designated for the purposes of section 9 of the Criminal Justice (International Co-operation) Act 1990.
Property
38.
—(1) In this Order—
(b) property is held by a person if he holds an interest in it;
(c) property is obtained by a person if he obtains an interest in it;
(d) property is transferred by one person to another if the first one transfers or grants an interest in it to the second;
(e) references to property held by a person include references to property vested in his trustee in bankruptcy;
(f) references to property held by a person beneficially in property include references to an interest which would be held by him beneficially if the property were not so vested;
(g) references to an interest, in relation to land in England and Wales, are to any legal estate or equitable interest or power.
(2) References to an interest, in relation to property other than land, include references to a right (including a right to possession).
(3) Property is "relevant property" if there are reasonable grounds to believe that it may be needed to satisfy an external forfeiture order which has been made or which may be made.
Tainted gifts
39.
—(1) In this Order, a gift is tainted if it was made by the defendant at any time after—
(2) For the purposes of paragraph (1), an offence which is a continuing offence is committed on the first occasion when it is committed.
(3) A gift may be a tainted gift whether it was made before or after the coming into force of this Order.
Gifts and their recipients
40.
—(1) In this Order, a defendant is to be treated as making a gift if he transfers property to another person for a consideration whose value is significantly less than the value of the property at the time of the transfer.
(2) If paragraph (1) applies, the property given is to be treated as such share in the property transferred as is represented by the fraction—
(3) In this Order references to a recipient of a tainted gift are to a person to whom the defendant has made the gift.
Value: the basic rule
41.
—(1) Subject to article 42, this article applies where it is necessary under this Order to decide the value at any time of property then held by a person.
(2) Its value is the market value of the property at that time.
(3) But if at that time another person holds an interest in the property its value, in relation to the person mentioned in paragraph (1), is the market value of his interest at that time, ignoring any charging order under a provision listed in paragraph (4).
(4) Those provisions are—
Value of tainted gifts
42.
—(1) The value at any time (the material time) of a tainted gift is the greater of the following—
(2) The property found under this paragraph is as follows—
(3) The references in paragraph (1)(a) and (b) to the value are to the value found in accordance with article 41.
Meaning of "defendant"
43.
In this Order "defendant"—
(b) in relation to an external forfeiture order, the person convicted of criminal conduct.
A.K.Galloway
Clerk of the Privy Council
[2] S.I. 1991/1463, as amended by S.I. 1992/1721, 1993/1791, 1993/3148, 1994/1640, 1996/2878, 1997/1317, 1997/2977, 2001/957, 2002/255 and 2002/2845.back
[5] S.I. 1990/2588 (N.I. 17).back
[7] S.I. 1996/1299 (N.I. 9).back
[13] S.I. 1990/2588 (N.I. 17).back
[15] S.I. 1996/1299 (N.I. 9).back
[19] S.I. 1990/2588 (N.I. 17).back
[21] S.I. 1996/1299 (N.I. 9).back
[27] S.I. 1990/2588 (N.I. 17).back
[29] S.I. 1996/1299 (N.I. 9).back