Criminal Justice Act 1993 (c. 36)

(The document as of February, 2008)

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18 Offences in connection with laundering money from drug trafficking

(1) The following sections shall be inserted in the [1986 c. 32.] Drug Trafficking Offences Act 1986, after section 26A--

" Offences in connection with money laundering

26B Failure to disclose knowledge or suspicion of money laundering

(1) A person is guilty of an offence if--

(a) he knows, or suspects, that another person is engaged in drug money laundering,

(b) the information, or other matter, on which that knowledge or suspicion is based came to his attention in the course of his trade, profession, business or employment, and

(c) he does not disclose the information or other matter to a constable as soon as is reasonably practicable after it comes to his attention.

(2) Subsection (1) above does not make it an offence for a professional legal adviser to fail to disclose any information or other matter which has come to him in privileged circumstances.

(3) It is a defence to a charge of committing an offence under this section that the person charged had a reasonable excuse for not disclosing the information or other matter in question.

(4) Where a person discloses to a constable--

(a) his suspicion or belief that another person is engaged in drug money laundering, or

(b) any information or other matter on which that suspicion or belief is based,

the disclosure shall not be treated as a breach of any restriction imposed by statute or otherwise.

(5) Without prejudice to subsection (3) or (4) above, in the case of a person who was in employment at the relevant time, it is a defence to a charge of committing an offence under this section that he disclosed the information or other matter in question to the appropriate person in accordance with the procedure established by his employer for the making of such disclosures.

(6) A disclosure to which subsection (5) above applies shall not be treated as a breach of any restriction imposed by statute or otherwise.

(7) In this section, "drug money laundering" means doing any act which constitutes an offence under--

(a) section 23A or 24 of this Act; or

(b) section 14 of the [1990 c. 5.] Criminal Justice (International Co-operation) Act 1990 (concealing or transferring proceeds of drug trafficking);

or, in the case of an act done otherwise than in England and Wales, would constitute such an offence if done in England and Wales.

(8) For the purposes of subsection (7) above, having possession of any property shall be taken to be doing an act in relation to it.

(9) For the purposes of this section, any information or other matter comes to a professional legal adviser in privileged circumstances if it is communicated, or given, to him--

(a) by, or by a representative of, a client of his in connection with the giving by the adviser of legal advice to the client;

(b) by, or by a representative of, a person seeking legal advice from the adviser; or

(i) in contemplation of, or in connection with, legal proceedings; and

(ii) for the purpose of those proceedings.

(10) No information or other matter shall be treated as coming to a professional legal adviser in privileged circumstances if it is communicated or given with a view to furthering any criminal purpose.

(11) A person guilty of an offence under this section shall be liable--

(a) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or to both, or

(b) on conviction on indictment, to imprisonment for a term not exceeding five years or a fine or to both.

26C Tipping-off

(1) A person is guilty of an offence if--

(a) he knows or suspects that a constable is acting, or is proposing to act, in connection with an investigation which is being, or is about to be, conducted into drug money laundering, and

(b) he discloses to any other person information or any other matter which is likely to prejudice that investigation, or proposed investigation.

(2) A person is guilty of an offence if--

(a) he knows or suspects that a disclosure ("the disclosure") has been made to a constable under section 23A, 24 or 26B of this Act, and

(b) he discloses to any other person information or any other matter which is likely to prejudice any investigation which might be conducted following the disclosure.

(3) A person is guilty of an offence if--

(a) he knows or suspects that a disclosure of a kind mentioned in section 23A(8), 24(4A) or 26B(5) of this Act ("the disclosure") has been made, and

(b) he discloses to any person information or any other matter which is likely to prejudice any investigation which might be conducted following the disclosure.

(4) Nothing in subsections (1) to (3) above makes it an offence for a professional legal adviser to disclose any information or other matter--

(a) to, or to a representative of, a client of his in connection with the giving by the adviser of legal advice to the client; or

(b) to any person--

(i) in contemplation of, or in connection with, legal proceedings; and

(ii) for the purpose of those proceedings.

(5) Subsection (4) above does not apply in relation to any information or other matter which is disclosed with a view to furthering any criminal purpose.

(6) In proceedings against a person for an offence under subsection (1), (2) or (3) above, it is a defence to prove that he did not know or suspect that the disclosure was likely to be prejudicial in the way mentioned in that subsection.

(7) In this section "drug money laundering" has the same meaning as in section 26B of this Act.

(8) A person guilty of an offence under this section shall be liable--

(a) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or to both, or

(b) on conviction on indictment, to imprisonment for a term not exceeding five years or a fine or to both.

(9) No constable or other person shall be guilty of an offence under this section in respect of anything done by him in the course of acting in connection with the enforcement, or intended enforcement, of any provision of this Act or of any other enactment relating to drug trafficking or the proceeds of such trafficking. " .

(2) In section 24 of the [1986 c. 32.] Drug Trafficking Offences Act 1986 (assisting another to retain the benefit of drug trafficking), in subsection (3)(a) for the word "contract" there shall be substituted "statute or otherwise".

(3) In section 24 of the Act of 1986, the following subsection shall be inserted after subsection (4)--

" (4A) In the case of a person who was in employment at the relevant time, subsections (3) and (4) above shall have effect in relation to disclosures, and intended disclosures, to the appropriate person in accordance with the procedure established by his employer for the making of such disclosures as they have effect in relation to disclosures, and intended disclosures, to a constable. " .

19 Offences in connection with laundering money from drug trafficking: Scotland

(1) The following sections shall be inserted after section 43 of the [1987 c. 41.] Criminal Justice (Scotland) Act 1987--

" 43A Failure to disclose knowledge or suspicion of money laundering

(1) A person is guilty of an offence if--

(a) he knows, or suspects, that another person is engaged in drug money laundering,

(b) the information, or other matter, on which that knowledge or suspicion is based came to his attention in the course of his trade, profession, business or employment, and

(c) he does not disclose the information or other matter to a constable or to a person commissioned by the Commissioners of Customs and Excise as soon as is reasonably practicable after it comes to his attention.

(2) Subsection (1) above does not make it an offence for a professional legal adviser to fail to disclose any information or other matter which has come to him in privileged circumstances.

(3) It is a defence to a charge of committing an offence under this section that the person charged had a reasonable excuse for not disclosing the information or other matter in question.

(4) Where a person discloses to a constable or a person so commissioned--

(a) his suspicion or belief that another person is engaged in drug money laundering, or

(b) any information or other matter on which that suspicion or belief is based,

the disclosure shall not be treated as a breach of any restriction imposed by statute or otherwise.

(6) A disclosure to which subsection (5) above applies shall not be treated as a breach of any restriction imposed by statute or otherwise.

(7) In this section "drug money laundering" means doing any act which constitutes an offence under--

(a) section 42A or 43 of this Act; or

(b) section 14 of the [1990 c. 5.] Criminal Justice (International Co-operation) Act 1990 (concealing or transferring proceeds of drug trafficking),

or, in the case of an act done otherwise than in Scotland, would constitute such an offence if done in Scotland.

(8) For the purposes of subsection (7) above, having possession of any property shall be taken to be doing an act in relation to it.

(9) For the purposes of this section, any information or other matter comes to a professional legal adviser in privileged circumstances if it is communicated, or given, to him--

(a) by, or by a representative of, a client of his in connection with the giving by the adviser of legal advice to the client;

(b) by, or by a representative of, a person seeking legal advice from the adviser; or

(i) in contemplation of, or in connection with, legal proceedings; and

(ii) for the purpose of those proceedings.

(11) A person guilty of an offence under this section shall be liable--

(a) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or to both, or

(b) on conviction on indictment, to imprisonment for a term not exceeding five years or a fine, or to both.

43B Tipping-off

(1) A person is guilty of an offence if--

(a) he knows or suspects that a constable or a person commissioned by the Commissioners of Customs and Excise is acting, or is proposing to act, in connection with an investigation which is being, or is about to be, conducted into drug money laundering within the meaning of subsections (7) and (8) of section 43A of this Act; and

(b) he discloses to any other person information or any other matter which is likely to prejudice that investigation, or proposed investigation.

(2) A person is guilty of an offence if--

(a) he knows or suspects that a disclosure has been made to a constable, or a person so commissioned, under section 42A, 43 or 43A of this Act; and

(b) he discloses to any other person information or any other matter which is likely to prejudice any investigation which might be conducted following the disclosure.

(3) A person is guilty of an offence if--

(a) he knows or suspects that a disclosure of a kind mentioned in section 42A(8), 43(4A) or 43A(5) of this Act has been made; and

(b) he discloses to any person information or any other matter which is likely to prejudice any investigation which might be conducted following the disclosure.

(4) Nothing in subsections (1) to (3) above makes it an offence for a professional legal adviser to disclose any information or other matter--

(a) to, or to a representative of, a client of his in connection with the giving by the adviser of legal advice to the client; or

(b) to any person--

(i) in contemplation of, or in connection with, legal proceedings; and

(ii) for the purpose of those proceedings.

(5) Subsection (4) above does not apply in relation to any information or other matter which is disclosed with a view to furthering any criminal purpose.

(7) A person guilty of an offence under this section shall be liable--

(a) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or to both, or

(b) on conviction on indictment, to imprisonment for a term not exceeding five years or a fine, or to both.

(8) No constable, person so commissioned or other person shall be guilty of an offence under this section in respect of anything done by him in the course of acting in connection with the enforcement, or intended enforcement, of any provision of this Act or of any other enactment relating to drug trafficking or the proceeds of such trafficking. " .

(2) In section 43 of the Act of 1987 (assisting another to retain the proceeds of drug trafficking)--

(a) in subsection (3), after the words "trafficking or" there shall be inserted the words "discloses to a constable or a person so commissioned"; and

(b) in paragraph (a) of subsection (3), for the word "contract" there shall be substituted "statute or otherwise".

(3) After subsection (4) of that section, there shall be inserted the following subsection--

20 Prosecution by order of the Commissioners of Customs and Excise

(1) The following section shall be inserted in the [1986 c. 32.] Drug Trafficking Offences Act 1986, after section 36--

" 36A Prosecution by order of the Commissioners of Customs and Excise

(1) Proceedings for an offence to which this section applies ("a specified offence") may be instituted by order of the Commissioners.

(2) Any proceedings for a specified offence which are so instituted shall be commenced in the name of an officer.

(3) In the case of the death, removal, discharge or absence of the officer in whose name any proceedings for a specified offence were commenced, those proceedings may be continued by another officer.

(4) Where the Commissioners investigate, or propose to investigate, any matter with a view to determining--

(a) whether there are grounds for believing that a specified offence has been committed, or

(b) whether a person should be prosecuted for a specified offence,

that matter shall be treated as an assigned matter within the meaning of the [1979 c. 2.] Customs and Excise Management Act 1979.

(5) Nothing in this section shall be taken--

(a) to prevent any person (including any officer) who has power to arrest, detain or prosecute any person for a specified offence from doing so; or

(b) to prevent a court from proceeding to deal with a person brought before it following his arrest by an officer for a specified offence, even though the proceedings have not been instituted by an order made under subsection (1) above.

(6) In this section--

"the Commissioners" means the Commissioners of Customs and Excise;
"officer" means a person commissioned by the Commissioners; and
"specified offence" means--
(a)
an offence under section 23A, 24, 26B, 26C or 31 of this Act or section 14 of the [1990 c. 5.] Criminal Justice (International Co-operation) Act 1990 (concealing or transferring proceeds of drug trafficking);
(b)
attempting to commit, conspiracy to commit or incitement to commit, any such offence; or
(c)
any other offence of a kind prescribed in regulations made by the Secretary of State for the purposes of this section.

(7) The power to make regulations under subsection (6) above shall be exercisable by statutory instrument.

(8) Any such instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament. " .

(2) The following section shall be inserted in the [1987 c. 41.] Criminal Justice (Scotland) Act 1987, after section 40--

" 40A Prosecution by order of the Commissioners of Customs and Excise

(1) Summary proceedings for a specified offence may be instituted by order of the Commissioners and shall, if so instituted, be commenced in the name of an officer.

(2) In the case of the death, removal, discharge or absence of the officer in whose name any proceedings for a specified offence were commenced, those proceedings may be continued by another officer.

(3) Where the Commissioners investigate, or propose to investigate, any matter with a view to determining--

(a) whether there are grounds for believing that a specified offence has been committed, or

(b) whether a person should be prosecuted for a specified offence,

that matter shall be treated as an assigned matter within the meaning of the [1979 c. 2.] Customs and Excise Management Act 1979.

(4) Nothing in this section shall be taken--

(a) to prevent any person (including any officer) who has power to arrest, detain or prosecute any person for a specified offence from doing so; or

(5) In this section--

"the Commissioners" means the Commissioners of Customs and Excise;
"officer" means a person commissioned by the Commissioners; and
"specified offence" means--
(a)
an offence under section 42, 42A, 43, 43A or 43B of this Act or section 14 of the [1990 c. 5.] Criminal Justice (International Co-operation) Act 1990 (concealing or transferring proceeds of drug trafficking);
(b)
attempting to commit, conspiracy to commit or incitement to commit, any such offence; or
(c)
any other offence of a kind prescribed in regulations made by the Secretary of State for the purposes of this section.

(6) Regulations under subsection (5) above shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament. " .

Enforcement

21 Enforcement of certain orders

(1) In section 9 of the [1990 c. 5.] Criminal Justice (International Co-operation) Act 1990 (enforcement of overseas forfeiture orders), in subsection (1)(b), the words "or intended for use" shall be inserted after "used".

(2) In section 24A of the [1986 c. 32.] Drug Trafficking Offences Act 1986 (recognition and enforcement of certain orders), the following shall be substituted for subsection (6)--

" (6) An Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament. " .

(3) The same subsection as is inserted in section 24A of the Act of 1986 by subsection (2) shall be inserted in--

(a) section 25 of that Act (but in substitution for subsection (4));

(b) section 26 of that Act (but in substitution for subsection (5));

(d) section 30 of the Act of 1987 (but in substitution for subsection (5));

(e) section 94 of the [1988 c. 33.] Criminal Justice Act 1988 (but in substitution for subsection (4));

(f) section 95 of the Act of 1988 (but in substitution for subsection (3));

(g) section 96 of the Act of 1988 (but in substitution for subsection (5));

(h) section 9 of the [1990 c. 5.] Criminal Justice (International Co-operation) Act 1990 (but in substitution for subsection (5)).

22 Enforcement of Northern Ireland orders: drug trafficking

(1) In section 25 of the [1986 c. 32.] Drug Trafficking Offences Act 1986 (enforcement of Northern Ireland orders), in subsection (1), for "19" there shall be substituted "18" and the following subsection shall be inserted after subsection (3)--

" (3A) An Order in Council under this section may, in particular, provide for section 18 of the [1982 c. 27.] Civil Jurisdiction and Judgments Act 1982 (enforcement of United Kingdom judgments in other parts of the United Kingdom) not to apply in relation to such orders as may be prescribed by the Order. " .

(2) In section 29 of the Criminal Justice (Scotland) Act 1987 (enforcement of Northern Ireland orders), the following subsection shall be inserted after subsection (3)--

" (3A) An Order in Council under this section may, in particular, provide for section 18 of the Civil Jurisdiction and Judgments Act 1982 (enforcement of United Kingdom judgments in other parts of the United Kingdom) not to apply in relation to such orders as may be prescribed by the Order. " .

23 Transfer of certain enforcement powers to the Commissioners of Customs and Excise

(1) The functions of the Secretary of State under section 20 of the Criminal Justice (International Co-operation) Act 1990 (enforcement powers in relation to ships) are transferred to the Commissioners of Customs and Excise.

(2) The following consequential amendments shall be made in the Act of 1990--

(a) in section 20, for "Secretary of State", "he" and "his", wherever they occur, there shall be substituted, respectively, "Commissioners of Customs and Excise", "they" and "their";

(b) in section 21(3), for " Secretary of State", where first occurring, there shall be substituted "Commissioners of Customs and Excise"; and

(c) in paragraph 2(2) of Schedule 3, for "Secretary of State" there shall be substituted "Commissioners of Customs and Excise".

(3) The transfer of functions effected by this section shall not affect the validity of any action taken or begun under section 20 of the Act of 1990 before the coming into force of this section.

Miscellaneous

24 Miscellaneous amendments

(1) In section 8(6) of the [1986 c. 32.] Drug Trafficking Offences Act 1986 (restraint orders), for "the court may" there shall be substituted "the High Court or a county court may".

(2) In sections 12(1) and (2), 13(1), 15(2), 16(2), 17(2) and 19(2)(b)(i) of that Act after "High Court" there shall be inserted, in each case, "or a county court".

(3) In section 17A(2) of that Act (expenses of insolvency practitioner dealing with property subject to restraint order), for "(3)(za)" there shall be substituted "(4)".

(4) In section 18(2) of that Act (remuneration and expenses of receiver), for "(3B)" there shall be substituted "(5)".

(5) In section 27 of that Act (application for an order to make material available), in subsection (8) for "this section" there shall be substituted "subsection (1) above" and the following subsection shall be added at the end--

" (10) An application under subsection (1) or (5) above may be made ex parte to a judge in chambers. " .

(6) In section 27(5) of that Act the words "or, as the case may be, the sheriff" (which are spent) shall be omitted.

(7) Section 38(1) of that Act (interpretation) shall be amended in accordance with subsections (8) and (9).

(8) In the definition of "drug trafficking", in paragraph (d), the words "or would be such an offence if it took place in England and Wales" shall be inserted at the end and the following paragraphs shall be inserted after paragraph (d)--

" (e) acquiring, having possession of or using property in circumstances which amount to the commission of an offence under section 23A of this Act or which would be such an offence if it took place in England and Wales;

(f) conduct which is an offence under section 14 (concealing or transferring proceeds of drug trafficking) of the [1990 c. 5.] Criminal Justice (International Co-operation) Act 1990 or which would be such an offence if it took place in England and Wales;

(g) using any ship for illicit traffic in controlled drugs in circumstances which amount to the commission of an offence under section 19 of the Act of 1990; " .

(9) In the definition of "drug trafficking offence", the following paragraph shall be inserted after paragraph (c)--

" (cc) an offence under section 23A of this Act; " .

(10) In section 18(4A) of the [1982 c. 27.] Civil Jurisdiction and Judgments Act 1982 (enforcement of United Kingdom judgments in other parts of the United Kingdom), after "High Court" there shall be inserted "or a county court".

(11) In section 116(2)(aa) of the [1984 c. 60.] Police and Criminal Evidence Act 1984 (drug trafficking offences to be arrestable offences that are always serious), for "(d)" there shall be substituted "(dd)".

(12) Section 1 of the [1987 c. 41.] Criminal Justice (Scotland) Act 1987 (confiscation orders in relation to drug trafficking offences) shall be amended in accordance with subsections (13) to (15).

(13) In subsection (2) (offences in relation to which confiscation orders may be made), the following paragraph shall be inserted after paragraph (b)--

" (bb) an offence under section 42A of this Act; " .

(14) In subsection (6) (definition of "drug trafficking"), after paragraph (e) there shall be inserted the following paragraphs--

" (f) acquiring, having possession of or using property in contravention of section 42A of this Act;

(g) concealing or transferring the proceeds of drug trafficking in contravention of section 14 of the Act of 1990;

(h) using any ship for illicit traffic in controlled drugs in contravention of section 19 of the Act of 1990; " .

(15) After subsection (6) there shall be inserted the following subsection--

" (7) In paragraphs (e) to (g) of subsection (6) above, references to conduct in contravention of the enactments mentioned in those paragraphs include conduct which would contravene the enactments if it took place in Scotland. " .

25 Appeal against order forfeiting drug trafficking cash

(1) The following sections shall be inserted in the [1990 c. 5.] Criminal Justice (International Co-operation) Act 1990, after section 26--

" 26A Appeal against section 26 order

(1) This section applies where an order for the forfeiture of cash ("the forfeiture order") is made under section 26 above by a magistrates' court.

(2) Any party to the proceedings in which the forfeiture order is made (other than the applicant for the order) may, before the end of the period of 30 days beginning with the date on which it is made, appeal to the Crown Court or, in Northern Ireland, to a county court.

(3) An appeal under this section shall be by way of a rehearing.

(4) On an application made by the appellant to a magistrates' court at any time, that court may order the release of so much of the cash to which the forfeiture order relates as it considers appropriate to enable him to meet his legal expenses in connection with the appeal.

(5) The court hearing an appeal under this section may make such order as it considers appropriate.

(6) If it upholds the appeal, the court may order the release of the cash, or (as the case may be) the remaining cash, together with any accrued interest.

(7) Section 26(3) applies in relation to a rehearing on an appeal under this section as it applies to proceedings under section 26.

26B Appeal against section 26 order: Scotland

Any party to proceedings in which an order for the forfeiture of cash is made by the sheriff under section 26 above may appeal against the order to the Court of Session. " .

(2) The Act of 1990 shall be further amended as follows.

(3) In section 26 (forfeiture of drug trafficking cash), after subsection (3) there shall be inserted the following subsection--

" (4) Proceedings on an application under this section to the sheriff shall be civil proceedings. " .

(4) In section 28 (procedure), the words "or appeals" shall be inserted after the word "applications" in each place where it occurs in subsection (2).

(5) In section 30 (forfeited cash to be paid into the Consolidated Fund), the following subsection shall be added at the end--

" (3) Subsection (2) above does not apply--

(a) where an appeal is made under section 26A or 26B above, before the appeal is determined or otherwise disposed of; and

(b) in any other case--

(i) where the forfeiture was ordered by a magistrates' court, before the end of the period of 30 days mentioned in section 26A(2); or

(ii) where the forfeiture was ordered by the sheriff, before the end of any period within which, in accordance with rules of court, an appeal under section 26B must be made. " .

(6) The amendments made by this section apply only in relation to orders under section 26 of the Act of 1990 made on or after the date on which this section comes into force.

26 Disclosure of information etc. received in privileged circumstances

(1) In section 31 of the [1986 c. 32.] Drug Trafficking Offences Act 1986 (offence of prejudicing investigation), the following subsections shall be inserted after subsection (2)--

" (2A) Nothing in subsection (1) above makes it an offence for a professional legal adviser to disclose any information or other matter--

(a) to, or to a representative of, a client of his in connection with the giving by the adviser of legal advice to the client; or

(b) to any person--

(i) in contemplation of, or in connection with, legal proceedings; and

(ii) for the purpose of those proceedings.

(2B) Subsection (2A) above does not apply in relation to any information or other matter which is disclosed with a view to furthering any criminal purpose. " .

(2) The same subsections as are inserted in section 31 of the Act of 1986 by subsection (1) shall be inserted in section 42 of the [1987 c. 41.] Criminal Justice (Scotland) Act 1987 (corresponding Scottish provision).

Part IIIPART III PROCEEDS OF CRIMINAL CONDUCT

Confiscation orders

27 Confiscation orders

(1) Section 71 of the [1988 c. 33.] Criminal Justice Act 1988 (confiscation orders) shall be amended as follows.

(2) The following subsection shall be inserted after subsection (7)--

" (7A) The standard of proof required to determine any question arising under this Part of this Act as to--

(a) whether a person has benefited as mentioned in subsection (2)(b)(i) above;

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