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Statutory Instrument 2005 No. 3180The Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) Order 2005(The document as of February, 2008) STATUTORY INSTRUMENTS2005 No. 3180CRIMINAL LAW, ENGLAND AND WALESThe Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) Order 2005
Her Majesty, in exercise of the powers conferred upon Her by section 9 of the Criminal Justice (International Co-operation) Act 1990[1], is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows: Citation, commencement and extent 1.—(1) This Order may be cited as the Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) Order 2005, and shall come into force on 31st December 2005. (2) This Order extends to England and Wales only. Revocation 2.—(1) The Orders listed in Schedule 1 to this Order are hereby revoked. (2) Nothing in paragraph (1) applies in relation to a restraint order made or an external forfeiture order registered under the Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) Order 1991[2] before the coming into force of this Order. Action on receipt of request for restraint of property 3.—(1) Except where paragraph (2) applies, the Secretary of State may refer to the Director of Public Prosecutions or the Director of Revenue and Customs Prosecutions a request for the restraint of property made—
(b) for the purpose of facilitating the enforcement of any external forfeiture order which has yet to be made, to process it.
(b) concerns relevant property in England or Wales. (3) Where paragraph (2) applies, the Secretary of State may refer the request to the Director of the Serious Fraud Office to process it.
(b) a criminal investigation or proceedings for an offence have been started in the country from which the request was made, and (c) it appears to the court that there are reasonable grounds for believing that as a result of that investigation or those proceedings an external forfeiture order may be made against the person named in the request. (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.
(b) make provision for the purpose of enabling any person to carry on any trade, business, profession or occupation; (c) be made subject to conditions. (3) Paragraph (4) applies if—
(b) the applicant for the order applies to the court to proceed under paragraph (4) (whether as part of the application for the restraint order or at any time afterwards). (4) The court may make such order as it believes is appropriate for the purpose of ensuring that the restraint order is effective.
(b) section 78 of the Criminal Justice Act 1988[4]; (c) Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990[5]; (d) section 27 of the Drug Trafficking Act 1994[6]; (e) Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996[7]. (6) Dealing with property includes removing it from England and Wales.
(b) may be made on an application to a judge in chambers without giving notice to the other party. (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—
(b) any person affected by the order. (3) Paragraphs (4) to (6) apply to an application under paragraph (2).
(b) may vary the order. (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—
(b) within a reasonable time an external forfeiture order has not been registered under this Order. (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.
(b) any person affected by the order. (3) On an appeal under paragraph (1) or (2) the Court of Appeal may—
(b) make such order as it believes is appropriate. Appeal to House of Lords about restraint orders
(b) make such order as it believes is appropriate. Seizure in pursuance of restraint order
(b) for the discharge or variation of a restraint order; (c) on an appeal under article 7 or 8. (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.
(b) apply in relation to applications for restraint orders as they apply in relation to other pending land actions. (2) The registration Acts are—
(b) the Land Registration Act 2002[10]. (3) But no notice may be entered in the register of title under the Land Registration Act 2002 in respect of a restraint order.
(b) the relevant Director applies to the court to proceed under paragraph (2) (whether as part of the application for the restraint order or at any time afterwards). (2) The Crown Court may by order appoint a receiver in respect of any property which is specified in the restraint order.
(b) power to manage or otherwise deal with the property; (c) power to start, carry on or defend any legal proceedings in respect of the property; (d) power to realise so much of the property as is necessary to meet the receiver's remuneration and expenses. (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—
(b) make or obtain a copy, photograph or other record of anything so authorised; (c) remove anything which the receiver is required or authorised to take possession of in pursuance of an order of the court. (4) The court may by order authorise the receiver to do any of the following for the purpose of the exercise of his functions—
(b) enter into contracts; (c) sue and be sued; (d) employ agents; (e) execute powers of attorney, deeds or other instruments; (f) take any other steps the court thinks appropriate. (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.
(b) may (on the payment being made) by order transfer, grant or extinguish any interest in the property. (7) Paragraphs (2), (5) and (6) do not apply to property for the time being subject to a charge under any of these provisions—
(b) section 78 of the Criminal Justice Act 1988[12]; (c) Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990[13]; (d) section 27 of the Drug Trafficking Act 1994[14]; (e) Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996[15]. (8) The court must not—
(b) exercise the power conferred on it by paragraph (6) in respect of property, unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.
(b) carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property; (c) incurring capital expenditure in respect of the property. Restrictions relating to restraint orders
(b) any receiver appointed in respect of the property under article 12 or 22. Action on receipt of external forfeiture order in connection with criminal convictions 15.—(1) Except where paragraph (2) applies, the Secretary of State may refer an external forfeiture order concerning relevant property in England or Wales to—
(b) the Director of Revenue and Customs Prosecutions, to process it.
(b) property specified in the order was found, or was believed, to have been obtained as a result of, or in connection with, criminal conduct involving serious or complex fraud. (3) Where paragraph (2) applies, the Secretary of State may refer the order to the Director of the Serious Fraud Office to process it.
(b) any order, (c) any other document concerned with such a judgment or order or proceedings relating to it. (2) Where this paragraph applies, any statement in the judgment, order or document is admissible in evidence in proceedings under this Part.
(b) may be made on an application to a judge in chambers without giving notice to the other party. Conditions for Crown Court to give effect to external forfeiture orders
(b) section 78 of the Criminal Justice Act 1988[18]; (c) Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990[19]; (d) section 27 of the Drug Trafficking Act 1994[20]; (e) Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996[21]. (6) In paragraph (3) "appeal" includes—
(b) an application for a new trial or stay of execution. Registration of external forfeiture orders
(b) provide for notice of the registration to be given to any person affected by it; and (c) appoint the relevant Director as the enforcement authority for the order. (2) Only an external forfeiture order registered by the Crown Court may be implemented under this Order.
(b) by any other means. (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.
(b) any person affected by the registration. (3) On an appeal under paragraph (1) or (2) the Court of Appeal may—
(b) direct the Crown Court to register the external forfeiture order (or so much of it as relates to property other than to which article 18(5) applies). Appeal to House of Lords about external forfeiture orders
(b) direct the Crown Court to register the external forfeiture order (or so much of it as relates to property other than property to which article 18(5) applies). Appointment of enforcement receivers
(b) it is not satisfied. (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.
(b) power to manage or otherwise deal with the property; (c) power to realise the property, in such manner as the court may specify; (d) power to start, carry on or defend any legal proceedings in respect of the 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—
(b) make or obtain a copy, photograph or other record of anything so authorised; (c) remove anything which the receiver is required or authorised to take possession of in pursuance of an order of the court. (4) The court may by order authorise the receiver to do any of the following for the purposes of the exercise of his functions—
(b) enter into contracts; (c) sue and be sued; (d) employ agents; (e) execute powers of attorney, deeds or other instruments; (f) take any other steps the court thinks appropriate. (5) The court may order any person who has possession of the specified property to give possession of it to the receiver.
(b) may (on the payment being made) by order transfer, grant or extinguish any interest in the property. (7) The court must not—
(b) exercise the power conferred on it by paragraph (6) in respect of property, unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.
(b) carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property; (c) incurring capital expenditure in respect of the property. Satisfaction of external forfeiture order
(b) the receiver (if the order under article 22 has been made). Protection of receiver appointed under articles 12 and 22 26.—(1) If a receiver appointed under article 12 or 22—
(b) would be entitled to take the action if it were the specified property, and (c) believes on reasonable grounds that he is entitled to take the action, 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.
(b) any person who may be affected by action the receiver proposes to take. (4) On an application under this article the court may make such order as it believes is appropriate.
(b) the relevant Director; (c) any person affected by the order. (2) On an application under this article the court—
(b) may vary the order. (3) But in the case of an order under article 12 or 13—
(b) if the conditions were satisfied by virtue of the fact that an investigation had started, the court must discharge the order if within a reasonable time proceedings for the offence are not started. Management receivers: discharge
(b) the court appoints a receiver under article 22. (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.
(b) from any obligation under this Order arising from his appointment. (5) If this article applies the court may make such a consequential or incidental order as it believes is appropriate.
(b) any person affected by the order. (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.
(b) any person affected by the order; (c) the receiver. (5) The following persons may appeal to the Court of Appeal against a decision of the court on an application under article 28—
(b) any person affected by the court's decision; (c) the receiver. (6) On an appeal under this article the Court of Appeal may—
(b) make such order as it believes is appropriate. Appeal to the House of Lords about receivers
(b) make such order as it believes is appropriate. Powers of court and receiver
(b) the powers of a receiver appointed under article 12 or 22. (2) The powers—
(b) must be exercised, in a case where an external forfeiture order has not been made, with a view to securing that there is no diminution in the value of the property identified in the request; (c) must be exercised without taking account of any obligation of a defendant or a recipient of a tainted gift if the obligation conflicts with the object of satisfying any external forfeiture order against the defendant that has been or may be registered under article 19; (d) may be exercised in respect of a debt owed by the Crown. (3) Paragraph (2) has effect subject to the following rules—
(b) in the case of specified property held by a recipient of a tainted gift, the powers must be exercised with a view to realising no more than the value for the time being of the gift; (c) in a case where an external forfeiture order has not been made against the defendant, property must not be sold if the court so orders under paragraph (4). (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.
(b) which is to exercise that Court's jurisdiction under this Order. (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.
(b) (as the case may be) order the legal or other representative concerned to meet, the whole of any wasted costs or such part of them as may be determined in accordance with rules of court.
(b) which, in the light of any such act or omission occurring after they were incurred, the court considers it unreasonable to expect that party to pay. (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. General interpretation 35.In this Order—
(b) in the context of an external forfeiture order, set out in article 15(4);
External forfeiture orders
(b) for the forfeiture and destruction, or the forfeiture and other disposal, of anything in respect of which a relevant offence has been committed or which was used or intended for use in connection with the commission of such an offence, is referred to in this Order as an "external forfeiture order".
(b) the reference to an order includes any order, decree, direction or judgment, or any part thereof, however described. Designated countries
(ii) all forms of property, real or personal, heritable or moveable; (iii) things in action and other intangible or incorporeal property; (b) property is held by a person if he holds an interest in it; (2) References to an interest, in relation to property other than land, include references to a right (including a right to possession).
(b) if his criminal conduct consists of two or more such offences and they were committed on different dates, the date of the earliest. (2) For the purposes of paragraph (1), an offence which is a continuing offence is committed on the first occasion when it is committed.
(b) whose denominator is the value of the property at the time of the transfer. (3) In this Order references to a recipient of a tainted gift are to a person to whom the defendant has made the gift.
(b) section 78 of the Criminal Justice Act 1988[26]; (c) Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990[27]; (d) section 27 of the Drug Trafficking Act 1994[28]; (e) Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996[29]. Value of tainted gifts
(b) the value (at the material time) of the property found under paragraph (2). (2) The property found under this paragraph is as follows—
(b) if the recipient holds no part of the property given, the property found under this paragraph is any property which directly or indirectly represents it in his hands; (c) if the recipient holds part of the property given, the property found under this paragraph is that part and any property which directly or indirectly represents the other part in his hands. (3) The references in paragraph (1)(a) and (b) to the value are to the value found in accordance with article 41.
(ii) in a case in which the conditions in article 4 are satisfied by virtue of the fact that proceedings for an offence have been started, the person against whom those proceedings have been started (whether or not he has been convicted); (b) in relation to an external forfeiture order, the person convicted of criminal conduct.
The following Orders are hereby revoked—
(b) the Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) (Amendment) Order 1992[31]; (c) the Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) (Amendment) Order 1993[32]; (d) the Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) (Amendment) (No. 2) Order 1993[33]; (e) the Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) (Amendment) Order 1994[34]; (f) the Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) (Amendment) Order 1996[35]; (g) the Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) (Amendment) Order 1997[36]; (h) the Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) (Amendment) (No. 2) Order 1997[37]; (i) the Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) (Amendment) Order 2001[38]; (j) the Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) (Amendment) Order 2002[39]; (k) the Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) (Amendment) (No. 2) Order 2002[40]. Afghanistan Albania Algeria Andorra Angola Antigua and Barbuda Argentina Armenia Australia Austria Azerbaijan Bahamas Bahrain Bangladesh Barbados Belarus Belgium Belize Benin Bhutan Bolivia Bosnia and Herzegovina Botswana Brazil Brunei Darussalem Bulgaria Burkina Faso Burundi Cambodia Cameroon Canada Cape Verde Central African Republic Chad Chile China Colombia Comoros Congo Cook Islands Costa Rica Côte D'Ivoire Croatia Cuba Cyprus Czech Republic Denmark Djibouti Dominica Dominican Republic Ecuador Egypt El Salvador Eritrea Equatorial Guinea Estonia Ethiopia Fiji Finland France Gabon Gambia Georgia Germany Ghana Greece Grenada Guatemala Guinea Guinea-Bissau Guyana Haiti Honduras Hungary Iceland India Indonesia Iran (Islamic Republic of) Iraq Ireland Israel Italy Jamaica Japan Jordan Kazakhstan Kenya Kuwait Kyrgyzstan Lao's People's Democratic Republic Latvia Lebanon Lesotho Liberia Libyan Arab Jamahiriya Liechtenstein Lithuania Luxemburg Madagascar Malawi Malaysia Maldives Mali Malta Mauritania Mauritius Mexico Micronesia (Federal States of) Moldova Monaco Mongolia Morocco Mozambique Myanmar Namibia Nauru Nepal Netherlands New Zealand Nicaragua Niger Nigeria Norway Oman Pakistan Panama Paraguay Peru Philippines Poland Portugal Qatar Republic of Korea Romania Russian Federation Rwanda Saint Kitts & Nevis Saint Lucia Saint Vincent and the Grenadines San Marino San Tome & Principe Saudi Arabia Senegal Serbia and Montenegro Seychelles Sierra Leone Singapore Slovakia Slovenia South Africa Spain Sri Lanka Sudan Suriname Swaziland Sweden Switzerland Syrian Arab Republic Tajikistan Thailand The former Yugoslav Republic of Macedonia Togo Tonga Trinidad and Tobago Tunisia Turkey Turkmenistan Uganda Ukraine United Arab Emirates United Republic of Tanzania United States of America Uruguay Uzbekistan Venezuela Vietnam Yemen Zambia Zimbabwe (This note is not part of the Order) This Order makes provision in respect of the enforcement in England and Wales of orders made in designated countries for the forfeiture of anything in respect of which an offence has been committed or which was used in connection with the commission of such an offence. Part 2 makes provisions for prohibitions ("restraint orders") on dealing with property, situated in England and Wales, which is specified in a request by an overseas authority. In order to exercise the powers to make a restraint, the Crown Court must be satisfied that the conditions set out in article 4 are satisfied. The conditions include the requirement that a criminal investigation or proceedings have been started in the country from which the external request was made with regard to an offence. The persons responsible for applying to the Crown Court are those set out in article 3(1) and (3). Articles 6 to 11 make supplementary provision about the making of restraint orders, including provision for appeals. Articles 12 and 13 provide for the appointment and powers of receivers in respect of property subject to restraint orders. Part 3 makes provision for the registration of external forfeiture orders, which arise from a criminal conviction in the country from which the order was sent and concern relevant property in England and Wales. An application for registration is to be made by the persons listed in article 15(1) and (3). The conditions set out in article 18 must be satisfied if the Crown Court is to give effect to the external forfeiture order by registering it. Where the conditions are satisfied, the Court must register the external forfeiture order (see article 18(1)). Articles 20 and 21 provide for appeals and article 24 sets out the circumstances when a registered external forfeiture order is to be taken as satisfied. Article 22 provides for the appointment of enforcement receivers by the Director of Public Prosecutions, Director of Revenue and Customs Prosecutions and Director of the Serious Fraud Office. The powers of receivers are in respect of the property specified in the registered external forfeiture order. Article 25 imposes restrictions on actions by persons other than receivers on property that is specified in a registered external forfeiture order. Part 4 makes further provision about receivers. This includes provision protecting the receiver in respect of things done by him (article 26) and the discharge and variation of orders affecting receivers (articles 28 and 29). Articles 30 and 31 provide for the procedure on appeals about receivers to the Court of Appeal and the House of Lords. Part 5 provides for interpretation. Notes: [1] 1990 c. 5; section 9 was amended by section 21 of the Criminal Justice Act 1993 (c. 36), by section 14 of the Proceeds of Crime Act 1995 (c. 11) and by section 9 of the Serious Organised Crime and Police Act 2005 (c. 15).back [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 [3] 1986 c.32.back [4] 1988 c.33.back [5] S.I. 1990/2588 (N.I. 17).back [6] 1994 c.37.back [7] S.I. 1996/1299 (N.I. 9).back [8] 1995 c.38.back [9] 1972 c.61.back [10] 2002 c.9.back [11] 1986 c.32.back [12] 1988 c.33.back [13] S.I. 1990/2588 (N.I. 17).back [14] 1994 c.37.back [15] S.I. 1996/1299 (N.I. 9).back [16] 1998 c.42.back [17] 1986 c.32.back [18] 1988 c.33.back [19] S.I. 1990/2588 (N.I. 17).back [20] 1994 c.37.back [21] S.I. 1996/1299 (N.I. 9).back [22] 1981 c.54.back [23] 1968 c.19.back [24] 2005 c.11.back [25] 1986 c.32.back [26] 1988 c.33.back [27] S.I. 1990/2588 (N.I. 17).back [28] 1994 c.37.back [29] S.I. 1996/1299 (N.I. 9).back [30] S.I. 1991/1463.back [31] S.I. 1992/1721.back [32] S.I. 1993/1791.back [33] S.I. 1993/3148.back [34] S.I. 1994/1640.back [35] S.I. 1996/2878.back [36] S.I. 1997/1317.back [37] S.I. 1997/2977.back [38] S.I. 2001/957.back [39] S.I. 2002/255.back [40] S.I. 2002/2845.back ISBN 0 11 073637 0 -- Back --
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