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SCHEDULE 4 |
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FORFEITURE
ORDERS |
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PART
I |
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ENGLAND
AND WALES |
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Interpretation |
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1.
In this Part of this Schedule-
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"forfeiture
order" means an order made by a court in England and Wales under
section 23, and
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"forfeited
property" means the money or other property to which a forfeiture
order applies.
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Implementation of forfeiture orders |
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2.
- (1) Where a court in England and Wales makes a forfeiture order
it may make such other provision as appears to it to be necessary
for giving effect to the order, and in particular it may-
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(a) require
any of the forfeited property to be paid or handed over to the
proper officer or to a constable designated for the purpose by
the chief officer of police of a police force specified in the
order;
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(b) direct
any of the forfeited property other than money or land to be sold
or otherwise disposed of in such manner as the court may direct
and the proceeds (if any) to be paid to the proper officer;
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(c) appoint
a receiver to take possession, subject to such conditions and
exceptions as may be specified by the court, of any of the forfeited
property, to realise it in such manner as the court may direct
and to pay the proceeds to the proper officer;
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(d) direct
a specified part of any forfeited money, or of the proceeds of
the sale, disposal or realisation of any forfeited property, to
be paid by the proper officer to a specified person falling within
section 23(7).
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(2)
A forfeiture order shall not come into force until there is no further
possibility of it being varied, or set aside, on appeal (disregarding
any power of a court to grant leave to appeal out of time).
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(3)
In sub-paragraph (1)(b) and (d) a reference to the proceeds of the
sale, disposal or realisation of property is a reference to the
proceeds after deduction of the costs of sale, disposal or realisation.
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(4)
Section 140 of the Magistrates' Courts Act 1980 (disposal of non-pecuniary
forfeitures) shall not apply.
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3.
- (1) A receiver appointed under paragraph 2 shall be entitled to
be paid his remuneration and expenses by the proper officer out
of the proceeds of the property realised by the receiver and paid
to the proper officer under paragraph 2(1)(c).
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(2)
If and so far as those proceeds are insufficient, the receiver shall
be entitled to be paid his remuneration and expenses by the prosecutor.
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(3)
A receiver appointed under paragraph 2 shall not be liable to any
person in respect of any loss or damage resulting from action-
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(a) which
he takes in relation to property which is not forfeited property,
but which he reasonably believes to be forfeited property,
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(b) which
he would be entitled to take if the property were forfeited property,
and
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(c) which
he reasonably believes that he is entitled to take because of
his belief that the property is forfeited property.
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(4)
Sub-paragraph (3) does not apply in so far as the loss or damage
is caused by the receiver's negligence.
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4.
- (1) In paragraphs 2 and 3 "the proper officer" means-
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(a) where
the forfeiture order is made by a magistrates' court, the justices'
chief executive for that court,
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(b) where
the forfeiture order is made by the Crown Court and the defendant
was committed to the Crown Court by a magistrates' court, the
justices' chief executive for the magistrates' court, and
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(c) where
the forfeiture order is made by the Crown Court and the proceedings
were instituted by a bill of indictment preferred by virtue of
section 2(2)(b) of the Administration of Justice (Miscellaneous
Provisions) Act 1933, the justices' chief executive for the magistrates'
court for the place where the trial took place.
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(2)
The proper officer shall issue a certificate in respect of a forfeiture
order if an application is made by-
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(a) the prosecutor
in the proceedings in which the forfeiture order was made,
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(b) the defendant
in those proceedings, or
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(c) a person
whom the court heard under section 23(7) before making the order.
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(3)
The certificate shall state the extent (if any) to which, at the
date of the certificate, effect has been given to the forfeiture
order.
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Restraint orders |
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5.
- (1) The High Court may make a restraint order under this paragraph
where-
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(a) proceedings
have been instituted in England and Wales for an offence under
any of sections 15 to 18,
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(b) the proceedings
have not been concluded,
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(c) an application
for a restraint order is made to the High Court by the prosecutor,
and
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(d) a forfeiture
order has been made, or it appears to the High Court that a forfeiture
order may be made, in the proceedings for the offence.
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(2)
The High Court may also make a restraint order under this paragraph
where-
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(a) it is
satisfied that a person is to be charged in England and Wales
with an offence under any of sections 15 to 18,
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(b) an application
for a restraint order is made to the High Court by the person
who the High Court is satisfied will have the conduct of the proposed
proceedings for the offence, and
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(c) it appears
to the High Court that a forfeiture order may be made in those
proceedings.
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(3)
A restraint order prohibits a person to whom notice of it is given,
subject to any conditions and exceptions specified in the order,
from dealing with property in respect of which a forfeiture order
has been or could be made in the proceedings referred to in sub-paragraph
(1) or (2).
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(4)
An application for a restraint order may be made to a judge in chambers
without notice.
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(5)
In this paragraph a reference to dealing with property includes
a reference to removing the property from Great Britain.
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6.
- (1) A restraint order shall provide for notice of it to be given
to any person affected by the order.
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(2)
A restraint order may be discharged or varied by the High Court
on the application of a person affected by it.
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(3)
In particular, a restraint order shall be discharged on an application
under sub-paragraph (2)-
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(a) in the
case of an order made under paragraph 5(2), if the proceedings
in respect of the offence are not instituted within such time
as the High Court considers reasonable, and
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(b) in any
case, if the proceedings for the offence have been concluded.
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7.
- (1) A constable may seize any property subject to a restraint
order for the purpose of preventing it from being removed from Great
Britain.
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(2)
Property seized under this paragraph shall be dealt with in accordance
with the High Court's directions.
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8.
- (1) The Land Charges Act 1972 and the Land Registration Act 1925-
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(a) shall
apply in relation to restraint orders as they apply in relation
to orders affecting land made by the court for the purpose of
enforcing judgments or recognizances, and
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(b) shall
apply in relation to applications for restraint orders as they
apply in relation to other pending land actions.
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(2)
Where a restraint order is made under paragraph 5(1) or an application
for such an order is made, the prosecutor in the proceedings for
the offence shall be treated for the purposes of section 57 of the
Land Registration Act 1925 (inhibitions) as a person interested
in respect of any registered land to which the restraint order or
the application for the restraint order relates.
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(3)
Where a restraint order is made under paragraph 5(2) or an application
for such an order is made, the person who the High Court is satisfied
will have the conduct of the proposed proceedings shall be treated
for the purposes of section 57 of that Act as a person interested
in respect of any registered land to which the restraint order or
the application for the restraint order relates.
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Compensation |
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9.
- (1) This paragraph applies where a restraint order is discharged
under paragraph 6(3)(a).
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(2)
This paragraph also applies where a forfeiture order or a restraint
order is made in or in relation to proceedings for an offence under
any of sections 15 to 18 which-
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(a) do not
result in conviction for an offence under any of those sections,
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(b) result
in conviction for an offence under any of those sections in respect
of which the person convicted is subsequently pardoned by Her
Majesty, or
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(c) result
in conviction for an offence under any of those sections which
is subsequently quashed.
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(3)
A person who had an interest in any property which was subject to
the order may apply to the High Court for compensation.
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(4)
The High Court may order compensation to be paid to the applicant
if satisfied-
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(a) that there
was a serious default on the part of a person concerned in the
investigation or prosecution of the offence,
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(b) that the
person in default was or was acting as a member of a police force,
or was a member of the Crown Prosecution Service or was acting
on behalf of the Service,
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(c) that the
applicant has suffered loss in consequence of anything done in
relation to the property by or in pursuance of the forfeiture
order or restraint order, and
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(d) that,
having regard to all the circumstances, it is appropriate to order
compensation to be paid.
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(5)
The High Court shall not order compensation to be paid where it
appears to it that proceedings for the offence would have been instituted
even if the serious default had not occurred.
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(6)
Compensation payable under this paragraph shall be paid-
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(a) where
the person in default was or was acting as a member of a police
force, out of the police fund out of which the expenses of that
police force are met, and
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(b) where
the person in default was a member of the Crown Prosecution Service,
or was acting on behalf of the Service, by the Director of Public
Prosecutions.
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10.
- (1) This paragraph applies where-
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(a) a forfeiture
order or a restraint order is made in or in relation to proceedings
for an offence under any of sections 15 to 18, and
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(b) the proceedings
result in a conviction which is subsequently quashed on an appeal
under section 7(2) or (5).
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(2)
A person who had an interest in any property which was subject to
the order may apply to the High Court for compensation.
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(3)
The High Court may order compensation to be paid to the applicant
if satisfied-
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(a) that the
applicant has suffered loss in consequence of anything done in
relation to the property by or in pursuance of the forfeiture
order or restraint order, and
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(b) that,
having regard to all the circumstances, it is appropriate to order
compensation to be paid.
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(4)
Compensation payable under this paragraph shall be paid by the Secretary
of State.
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Proceedings for an offence: timing |
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11.
- (1) For the purposes of this Part of this Schedule proceedings
for an offence are instituted-
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(a) when a
justice of the peace issues a summons or warrant under section
1 of the Magistrates' Courts Act 1980 in respect of the offence;
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(b) when a
person is charged with the offence after being taken into custody
without a warrant;
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(c) when a
bill of indictment charging a person with the offence is preferred
by virtue of section 2(2)(b) of the Administration of Justice
(Miscellaneous Provisions) Act 1933.
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(2)
Where the application of sub-paragraph (1) would result in there
being more than one time for the institution of proceedings they
shall be taken to be instituted at the earliest of those times.
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(3)
For the purposes of this Part of this Schedule proceedings are concluded-
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(a) when a
forfeiture order has been made in those proceedings and effect
has been given to it in respect of all the forfeited property,
or
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(b) when no
forfeiture order has been made in those proceedings and there
is no further possibility of one being made as a result of an
appeal (disregarding any power of a court to grant leave to appeal
out of time).
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Enforcement of orders made elsewhere in the British Islands |
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12.
In the following provisions of this Part of this Schedule-
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"a Scottish
order" means-
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(a) an order
made in Scotland under section 23 ("a Scottish forfeiture order"),
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(b) an order
made under paragraph 18 ("a Scottish restraint order"), or
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(c) an order
made under any other provision of Part II of this Schedule in
relation to a Scottish forfeiture or restraint order;
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"a Northern
Ireland order" means-
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(a) an order
made in Northern Ireland under section 23 ("a Northern Ireland
forfeiture order"),
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(b) an order
made under paragraph 33 ("a Northern Ireland restraint order"),
or
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(c) an order
made under any other provision of Part III of this Schedule
in relation to a Northern Ireland forfeiture or restraint order;
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"an Islands
order" means an order made in any of the Islands under a provision
of the law of that Island corresponding to-
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(a) section
23 ("an Islands forfeiture order"),
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(b) paragraph
5 ("an Islands restraint order"), or
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(c) any
other provision of this Part of this Schedule.
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13.
- (1) Subject to the provisions of this paragraph, a Scottish, Northern
Ireland or Islands order shall have effect in the law of England
and Wales.
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(2)
But such an order shall be enforced in England and Wales only in
accordance with-
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(a) the provisions
of this paragraph, and
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(b) any provision
made by rules of court as to the manner in which, and the conditions
subject to which, such orders are to be enforced there.
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(3)
On an application made to it in accordance with rules of court for
registration of a Scottish, Northern Ireland or Islands order, the
High Court shall direct that the order shall, in accordance with
such rules, be registered in that court.
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(4)
Rules of court shall also make provision-
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(a) for cancelling
or varying the registration of a Scottish, Northern Ireland or
Islands forfeiture order when effect has been given to it, whether
in England and Wales or elsewhere, in respect of all or, as the
case may be, part of the money or other property to which the
order applies;
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(b) for cancelling
or varying the registration of a Scottish, Northern Ireland or
Islands restraint order which has been discharged or varied by
the court by which it was made.
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(5)
If a Scottish, Northern Ireland or Islands forfeiture order is registered
under this paragraph the High Court shall have, in relation to that
order, the same powers as a court has under paragraph 2(1) to give
effect to a forfeiture order made by it and-
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(a) paragraph
3 shall apply accordingly,
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(b) any functions
of a justices' chief executive shall be exercised by the appropriate
officer of the High Court, and
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(c) after
making any payment required by virtue of paragraph 2(1)(d) or
3, the balance of any sums received by the appropriate officer
of the High Court by virtue of an order made under this sub-paragraph
shall be paid by him to the Secretary of State.
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(6)
If a Scottish, Northern Ireland or Islands restraint order is registered
under this paragraph-
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(a) paragraphs
7 and 8 shall apply as they apply to a restraint order under paragraph
5, and
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(b) the High
Court shall have power to make an order under section 33 of the
Supreme Court Act 1981 (extended power to order inspection of
property, &c.) in relation to proceedings brought or likely
to be brought for a Scottish, Northern Ireland or Islands restraint
order as if those proceedings had been brought or were likely
to be brought in the High Court.
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(7)
In addition, if a Scottish, Northern Ireland or Islands order is
registered under this paragraph-
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(a) the High
Court shall have, in relation to its enforcement, the same power
as if the order had originally been made in the High Court,
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(b) proceedings
for or with respect to its enforcement may be taken as if the
order had originally been made in the High Court, and
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(c) proceedings
for or with respect to contravention of such an order, whether
before or after such registration, may be taken as if the order
had originally been made in the High Court.
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(8)
The High Court may also make such orders or do otherwise as seems
to it appropriate for the purpose of-
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(a) assisting
the achievement in England and Wales of the purposes of a Scottish,
Northern Ireland or Islands order, or
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(b) assisting
a receiver or other person directed by a Scottish, Northern Ireland
or Islands order to sell or otherwise dispose of property.
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(9)
The following documents shall be received in evidence in England
and Wales without further proof-
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(a) a document
purporting to be a copy of a Scottish, Northern Ireland or Islands
order and to be certified as such by a proper officer of the court
by which it was made, and
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(b) a document
purporting to be a certificate for purposes corresponding to those
of paragraph 4(2) and (3) and to be certified by a proper officer
of the court concerned.
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Enforcement of orders made in designated countries |
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14.
- (1) Her Majesty may by Order in Council make provision for the
purpose of enabling the enforcement in England and Wales of external
orders.
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(2)
An "external order" means an order-
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(a) which
is made in a country or territory designated for the purposes
of this paragraph by the Order in Council, and
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(b) which
makes relevant provision.
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(3)
"Relevant provision" means-
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(a) provision
for the forfeiture of terrorist property ("an external forfeiture
order"), or
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(b) provision
prohibiting dealing with property which is subject to an external
forfeiture order or in respect of which such an order could be
made in proceedings which have been or are to be instituted in
the designated country or territory ("an external restraint order").
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(4)
An Order in Council under this paragraph may, in particular, include
provision-
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(a) which,
for the purpose of facilitating the enforcement of any external
order that may be made, has effect at times before there is an
external order to be enforced;
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(b) for matters
corresponding to those for which provision is made by, or can
be made under, paragraph 13(1) to (8) in relation to the orders
to which that paragraph applies;
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(c) for the
proof of any matter relevant for the purposes of anything falling
to be done in pursuance of the Order in Council.
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(5)
An Order in Council under this paragraph may also make provision
with respect to anything falling to be done on behalf of the United
Kingdom in a designated country or territory in relation to proceedings
in that country or territory for or in connection with the making
of an external order.
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(6)
An Order in Council under this paragraph-
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(a) may make
different provision for different cases, and
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(b) shall
not be made unless a draft of it has been laid before and approved
by resolution of each House of Parliament.
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PART
II |
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SCOTLAND |
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Implementation of forfeiture orders |
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15.
In this Part of this Schedule-
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"forfeiture
order" means an order made by a court in Scotland under section
23, and
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"forfeited
property" means the money or other property to which a forfeiture
order applies.
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16.
- (1) Where a court in Scotland makes a forfeiture order it may
make such other provision as appears to it to be necessary for giving
effect to the order, and in particular it may-
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(a) direct
any of the forfeited property other than money or land to be sold
or otherwise disposed of in such manner as the court may direct;
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(b) appoint
an administrator to take possession, subject to such conditions
and exceptions as may be specified by the court, of any of the
forfeited property and to realise it in such manner as the court
may direct;
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(c) direct
a specified part of any forfeited money, or of the proceeds of
the sale, disposal or realisation of any forfeited property, to
be paid to a specified person falling within section 23(7).
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(2)
A forfeiture order shall not come into force so long as an appeal
is pending against the order or against the conviction on which
it was made; and for this purpose where an appeal is competent but
has not been brought it shall be treated as pending until the expiry
of a period of fourteen days from the date when the order was made.
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(3)
Any balance remaining after making any payment required under sub-paragraph
(1)(c) or paragraph 17 shall be treated for the purposes of section
211(5) of the Criminal Procedure (Scotland) Act 1995 (fines payable
to the Treasury) as if it were a fine imposed in the High Court
of Justiciary.
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(4)
The clerk of court shall, on the application of-
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(a) the prosecutor
in the proceedings in which a forfeiture order is made,
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(b) the accused
in those proceedings, or
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(c) a person
whom the court heard under section 23(7) before making the order,
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certify
in writing the extent (if any) to which, at the date of the certificate,
effect has been given to the order in respect of the money or other
property to which it applies.
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(5)
In sub-paragraph (1) references to the proceeds of the sale, disposal
or realisation of property are references to the proceeds after
deduction of the costs of sale, disposal or realisation.
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Administrators |
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17.
- (1) The Court of Session may by rules of court prescribe the powers
and duties of an administrator appointed under paragraph 16.
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(2)
An administrator appointed under paragraph 16 shall be entitled
to be paid his remuneration and expenses out of the proceeds of
the property realised by him or, if and so far as those proceeds
are insufficient, by the Lord Advocate.
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(3)
The accountant of court shall supervise an administrator appointed
under paragraph 16 in the exercise of the powers conferred, and
discharge of the duties imposed, on him under or by virtue of that
paragraph.
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(4)
An administrator appointed under paragraph 16 shall not be liable
to any person in respect of any loss or damage resulting from action-
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(a) which
he takes in relation to property which is not forfeited property,
but which he reasonably believes to be forfeited property,
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(b) which
he would be entitled to take if the property were forfeited property,
and
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(c) which
he takes reasonably believing that he is entitled to take because
of his belief that the property is forfeited property.
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(5)
Sub-paragraph (4) does not apply in so far as the loss or damage
is caused by the administrator's negligence.
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Restraint orders |
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18.
- (1) The Court of Session, on an application made by the Lord Advocate,
may make a restraint order under this paragraph where-
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(a) proceedings
have been instituted in Scotland for an offence under any of sections
15 to 18,
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(b) the proceedings
have not been concluded, and
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(c) a forfeiture
order has been made, or it appears to the court that a forfeiture
order may be made, in the proceedings for the offence.
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(2)
The Court of Session may also, on such an application, make a restraint
order under this paragraph where-
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(a) it is
satisfied that a person is to be prosecuted in Scotland for an
offence under any of sections 15 to 18, and
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(b) it appears
to the Court of Session that a forfeiture order may be made in
proceedings for the offence.
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(3)
A restraint order prohibits a person to whom notice of it is given,
subject to any conditions and exceptions specified in the order,
from dealing with property in respect of which a forfeiture order
has been or could be made in the proceedings referred to in sub-paragraph
(1) or (2).
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(4)
An application for a restraint order may be made ex parte in chambers.
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(5)
For the purposes of this paragraph, dealing with property includes
removing the property from Great Britain.
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19.
- (1) A restraint order shall provide for notice of it to be given
to any person affected by the order.
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(2)
A restraint order may be recalled or varied by the Court of Session
on the application of any person affected by it.
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(3)
A restraint order shall be recalled-
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(a) in the
case of an order made under paragraph 18(2), if the proceedings
in respect of the offence are not instituted within such time
as the Court of Session considers reasonable, or
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(b) in the
case of an order made under paragraph 18(1) or (2), when proceedings
for the offence are concluded.
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(4)
When proceedings for the offence are concluded the Lord Advocate
shall forthwith apply to the Court for recall of the order.
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20.
- (1) A constable may seize any property subject to a restraint
order for the purpose of preventing it from being removed from Great
Britain.
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(2)
Property seized under this paragraph shall be dealt with in accordance
with the Court's directions.
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21.
- (1) On the application of the Lord Advocate, the Court of Session
may, in respect of heritable property in Scotland affected by a
restraint order (whether such property generally or particular such
property) grant warrant for inhibition against any person interdicted
by the order.
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(2)
Subject to this Part of this Schedule, a warrant under sub-paragraph
(1)-
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(a) shall
have effect as if granted on the dependence of an action for debt
at the instance of the Lord Advocate against the person and may
be executed, recalled, loosed or restricted accordingly;
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(b) shall
have the effect of letters of inhibition and shall forthwith be
registered by the Lord Advocate in the register of inhibitions
and adjudications.
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(3)
Section 155 of the Titles to Land Consolidation (Scotland) Act 1868
(effective date of inhibition) shall apply in relation to an inhibition
for which warrant has been granted under sub-paragraph (2)(a) as
that section applies to an inhibition by separate letters or contained
in a summons.
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(4)
The execution of an inhibition under sub-paragraph (2) in respect
of property shall not prejudice the exercise of an administrator's
powers under or for the purposes of this Part of this Schedule in
respect of that property.
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(5)
No inhibition executed under sub-paragraph (2) shall have effect
once, or in so far as, the restraint order affecting the property
in respect of which the warrant for the inhibition has been granted
has ceased to have effect in respect of that property, and the Lord
Advocate shall-
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(a) apply
for the recall, or as the case may be restriction, of the inhibition
or arrestment accordingly; and
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(b) ensure
that recall, or restriction, of an inhibition on such application
is reflected in the register of inhibitions and adjudications.
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22.
- (1) On the application of the Lord Advocate, the court may, in
respect of moveable property affected by a restraint order (whether
such property generally or particular such property), grant warrant
for arrestment if the property would be arrestable if the person
entitled to it were a debtor.
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(2)
A warrant under sub-paragraph (1) shall have effect as if granted
on the dependence of an action for debt at the instance of the Lord
Advocate against the person and may be executed, recalled, loosed
or restricted accordingly.
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(3)
The execution of an arrestment under sub-paragraph (2) in respect
of property shall not prejudice the exercise of an administrator's
powers under or for the purposes of this Part of this Schedule in
respect of that property.
|
|
(4)
No arrestment executed under sub-paragraph (2) shall have effect
once, or in so far as, the restraint order affecting the property
in respect of which the warrant for such arrestment has been granted
has ceased to have effect in respect of that property; and the Lord
Advocate shall apply to the court for an order recalling, or as
the case may be, restricting the arrestment accordingly.
|
|
Compensation |
|
23.
- (1) This paragraph applies where a restraint order is recalled
under paragraph 19(3)(a).
|
|
(2)
This paragraph also applies where a forfeiture order or a restraint
order is made in or in relation to proceedings for an offence under
any of sections 15 to 18 which-
|
|
(a) do not
result in conviction for an offence under any of those sections,
|
|
(b) result
in conviction for an offence under any of those sections in respect
of which the person convicted is subsequently pardoned by Her
Majesty, or
|
|
(c) result
in conviction for an offence under any of those sections which
is subsequently quashed.
|
|
(3)
A person who had an interest in any property which was subject to
the order may apply to the Court of Session for compensation.
|
|
(4)
The Court of Session may order compensation to be paid to the applicant
if it is satisfied-
|
|
(a) that there
was a serious default on the part of a person concerned in the
investigation or prosecution of the offence,
|
|
(b) that the
person in default was a constable of a police force or a constable
acting with the powers of such a constable, or was a procurator
fiscal or was acting on behalf of the Lord Advocate,
|
|
(c) that the
applicant has suffered loss in consequence of anything done in
relation to the property by or in pursuance of the forfeiture
order or the restraint order, and
|
|
(d) having
regard to all the circumstances, it is appropriate to order compensation
to be paid.
|
|
(5)
The Court of Session shall not order compensation to be paid where
it appears to it that the proceedings for the offence would have
been instituted even if the serious default had not occurred.
|
|
(6)
Compensation payable under this paragraph shall be paid-
|
|
(a) where
the person in default was a constable of a police force, out of
the police fund out of which the expenses of that police force
are met;
|
|
(b) where
the person in default was a constable other than is mentioned
in paragraph (a) above, but with the powers of such a constable,
by the body under whose authority he acts; and
|
|
(c) where
the person in default was a procurator fiscal or was acting on
behalf of the Lord Advocate, by the Lord Advocate.
|
|
(7)
This paragraph is without prejudice to any right which may otherwise
exist to institute proceedings in respect of delictual liability
disclosed by such circumstances as are mentioned in paragraphs (a)
to (c) of sub-paragraph (2).
|
|
24.
- (1) This paragraph applies where-
|
|
(a) a forfeiture
order or a restraint order is made in or in relation to proceedings
for an offence under any of sections 15 to 18, and
|
|
(b) the proceedings
result in a conviction which is subsequently quashed on an appeal
under section 7(2) or (5) as applied by section 8(1).
|
|
(2)
A person who had an interest in any property which was subject to
the order may apply to the Court of Session for compensation.
|
|
(3)
The Court of Session may order compensation to be paid to the applicant
if satisfied-
|
|
(a) that the
applicant has suffered loss in consequence of anything done in
relation to the property by or in pursuance of the forfeiture
order or restraint order, and
|
|
(b) that,
having regard to all the circumstances, it is appropriate to order
compensation to be paid.
|
|
(4)
Compensation payable under this paragraph shall be paid by the Secretary
of State.
|
|
Proceedings for an offence: timing |
|
25.
- (1) For the purposes of this Part of this Schedule proceedings
for an offence are instituted-
|
|
(a) when a
person is arrested for the offence,
|
|
(b) when a
warrant to arrest or cite a person is granted,
|
|
(c) when an
indictment or complaint is served on a person in respect of the
offence.
|
|
(2)
Where the application of sub-paragraph (1) would result in there
being more than one time for the institution of proceedings they
shall be taken to be instituted at the earliest of those times.
|
|
(3)
For the purposes of this Part of this Schedule proceedings are concluded-
|
|
(a) when a
forfeiture order has been made in those proceedings and effect
has been given to it in respect of all the money or other property
to which it applies, or
|
|
(b) when (disregarding
any power of a court to extend the period within which an appeal
may be made) there is no further possibility of a forfeiture order
being made in the proceedings.
|
|
Enforcement of orders made elsewhere in the British Islands |
|
26.
In the following provisions of this Part of this Schedule-
|
|
"an England
and Wales order" means-
|
|
(a) an order
made in England and Wales under section 23 ("an England and
Wales forfeiture order"),
|
|
(b) an order
made under paragraph 5 ("an England and Wales restraint order"),
or
|
|
(c) an order
made under any other provision of Part I of this Schedule in
relation to an England and Wales forfeiture or restraint order;
|
|
"a Northern
Ireland order" means-
|
|
(a) an order
made in Northern Ireland under section 23 ("a Northern Ireland
forfeiture order"),
|
|
(b) an order
made under paragraph 33 ("a Northern Ireland restraint order"),
or
|
|
(c) an order
made under any other provision of Part III of this Schedule
in relation to a Northern Ireland forfeiture or restraint order;
|
|
"an Islands
order" means an order made in any of the Islands under a provision
of the law of that Island corresponding to-
|
|
(a) section
23 ("an Islands forfeiture order"),
|
|
(b) paragraph
18 ("an Islands restraint order"), or
|
|
(c) any
other provision of this Part of this Schedule.
|
|
27.
- (1) Subject to the provisions of this paragraph, an England and
Wales order, Northern Ireland order or Islands order shall have
effect in the law of Scotland.
|
|
(2)
But such an order shall be enforced in Scotland only in accordance
with-
|
|
(a) the provisions
of this paragraph, and
|
|
(b) any provision
made by rules of court as to the manner in which, and the conditions
subject to which, such orders are to be enforced there.
|
|
(3)
On an application made to it in accordance with rules of court for
registration of an England and Wales order, Northern Ireland order
or Islands order, the Court of Session shall direct that the order
shall, in accordance with such rules, be registered in that court.
|
|
(4)
Rules of court shall also make provision-
|
|
(a) for cancelling
or varying the registration of an England and Wales, Northern
Ireland or Islands forfeiture order when effect has been given
to it, whether in Scotland or elsewhere, in respect of all or,
as the case may be, part of the money or other property to which
the order applies,
|
|
(b) for cancelling
or varying the registration of an England and Wales, Northern
Ireland or Islands restraint order which has been discharged or
varied by the court by which it was made.
|
|
(5)
If an England and Wales, Northern Ireland or Islands forfeiture
order is registered under this paragraph the Court of Session shall
have, in relation to that order, the same powers as a court has
under paragraph 16(1) above in relation to a forfeiture order made
by it and paragraphs 16(3) to (5) and 17 apply accordingly.
|
|
(6)
If an England and Wales, Northern Ireland or Islands forfeiture
order is registered under this paragraph-
|
|
(a) paragraphs
20 and 21 above shall apply as they apply to a restraint order,
and
|
|
(b) the Court
of Session shall have the like power to make an order under section
1 of the Administration of Justice (Scotland) Act 1972 (extended
power to order inspection of documents, &c.) in relation to
proceedings brought or likely to be brought for an England and
Wales, Northern Ireland or Islands restraint order as if those
proceedings had been brought or were likely to be brought in the
Court of Session.
|
|
(7)
In addition, if an England and Wales order, Northern Ireland order
or Islands order is registered under this paragraph-
|
|
(a) the Court
of Session shall have, in relation to its enforcement, the same
power,
|
|
(b) proceedings
for or with respect to its enforcement may be taken, and
|
|
(c) proceedings
for or with respect to any contravention of such an order (whether
before or after such registration) may be taken,
|
|
as
if the order had originally been made in the Court of Session.
|
|
(8)
The Court of Session may also make such orders or do otherwise as
seems to it appropriate for the purpose of-
|
|
(a) assisting
the achievement in Scotland of the purposes of an England and
Wales order, Northern Ireland order or Islands order, or
|
|
(b) assisting
any receiver or other person directed by any such order to sell
or otherwise dispose of property.
|
|
(9)
The following documents shall, in Scotland, be sufficient evidence
of their contents-
|
|
(a) a document
purporting to be a copy of an England and Wales order, Northern
Ireland order or Islands order and to be certified as such by
a proper officer of the court by which it was made, and
|
|
(b) a document
purporting to be a certificate for purposes corresponding to those
of paragraph 16(4) and to be certified by a proper officer of
the court concerned.
|
|
(10)
Nothing in any England and Wales order, Northern Ireland order or
Islands order prejudices any enactment or rule of law in respect
of the recording of deeds relating to heritable property in Scotland
or the registration of interests in such property.
|
|
Enforcement of orders made in designated countries |
|
28.
- (1) Her Majesty may by Order in Council make provision for the
purpose of enabling the enforcement in Scotland of external orders.
|
|
(2)
An "external order" means an order-
|
|
(a) which
is made in a country or territory designated for the purposes
of this paragraph by the Order in Council, and
|
|
(b) which
makes relevant provision.
|
|
(3)
"Relevant provision" means-
|
|
(a) provision
for the forfeiture of terrorist property ("an external forfeiture
order"); or
|
|
(b) provision
prohibiting dealing with property which is subject to an external
forfeiture order or in respect of which such an order could be
made in proceedings which have been or are to be instituted in
the designated country or territory ("an external restraint order").
|
|
(4)
An Order in Council under this paragraph may, in particular, include
provision-
|
|
(a) which,
for the purpose of facilitating the enforcement of any external
order that may be made, has effect at times before there is an
external order to be enforced,
|
|
(b) for matters
corresponding to those for which provision is made by, or can
be made under, paragraph 27(1) to (8) in relation to the orders
to which that paragraph applies, and
|
|
(c) for the
proof of any matter relevant for the purposes of anything falling
to be done in pursuance of the Order in Council.
|
|
(5)
An Order in Council under this paragraph may also make provision
with respect to anything falling to be done on behalf of the United
Kingdom in a designated country or territory in relation to proceedings
in that country or territory for or in connection with the making
of an external order.
|
|
(6)
An Order under this paragraph-
|
|
(a) may make
different provision for different cases, and
|
|
(b) shall
not be made unless a draft of it has been laid before and approved
by resolution of each House of Parliament.
|
|
|
PART
III |
|
NORTHERN
IRELAND |
|
Interpretation |
|
29.
In this Part of this Schedule-
|
|
"forfeiture
order" means an order made by a court in Northern Ireland under
section 23, and
|
|
"forfeited
property" means the money or other property to which a forfeiture
order applies.
|
|
Implementation of forfeiture orders |
|
30.
- (1) Where a court in Northern Ireland makes a forfeiture order
it may make such other provision as appears to it to be necessary
for giving effect to the order, and in particular it may-
|
|
(a) require
any of the forfeited property to be paid or handed over to the
proper officer or to a member of the Royal Ulster Constabulary
designated for the purpose by the Chief Constable;
|
|
(b) direct
any of the forfeited property other than money or land to be sold
or otherwise disposed of in such manner as the court may direct
and the proceeds (if any) to be paid to the proper officer;
|
|
(c) appoint
a receiver to take possession, subject to such conditions and
exceptions as may be specified by the court, of any of the forfeited
property, to realise it in such manner as the court may direct
and to pay the proceeds to the proper officer;
|
|
(d) direct
a specified part of any forfeited money, or of the proceeds of
the sale, disposal or realisation of any forfeited property, to
be paid by the proper officer to a specified person falling within
section 23(7).
|
|
(2)
A forfeiture order shall not come into force until there is no further
possibility of it being varied, or set aside, on appeal (disregarding
any power of a court to grant leave to appeal out of time).
|
|
(3)
In sub-paragraph (1)(b) and (d) a reference to the proceeds of the
sale, disposal or realisation of property is a reference to the
proceeds after deduction of the costs of sale, disposal or realisation.
|
|
(4)
Article 58 of the Magistrates' Courts (Northern Ireland) Order 1981
(disposal of non-pecuniary forfeitures) shall not apply.
|
|
31.
- (1) A receiver appointed under paragraph 30 shall be entitled
to be paid his remuneration and expenses by the proper officer out
of the proceeds of the property realised by the receiver and paid
to the proper officer under paragraph 30(1)(c).
|
|
(2)
If and so far as those proceeds are insufficient, the receiver shall
be entitled to be paid his remuneration and expenses by the prosecutor.
|
|
(3)
A receiver appointed under paragraph 30 shall not be liable to any
person in respect of any loss or damage resulting from action-
|
|
(a) which
he takes in relation to property which is not forfeited property,
but which he reasonably believes to be forfeited property,
|
|
(b) which
he would be entitled to take if the property were forfeited property,
and
|
|
(c) which
he reasonably believes that he is entitled to take because of
his belief that the property is forfeited property.
|
|
(4)
Sub-paragraph (3) does not apply in so far as the loss or damage
is caused by the receiver's negligence.
|
|
32.
- (1) In paragraphs 30 and 31 "the proper officer" means-
|
|
(a) where
the forfeiture order is made by a court of summary jurisdiction,
the clerk of petty sessions, and
|
|
(b) where
the forfeiture order is made by the Crown Court, the appropriate
officer of the Crown Court.
|
|
(2)
The proper officer shall issue a certificate in respect of a forfeiture
order if an application is made by-
|
|
(a) the prosecutor
in the proceedings in which the forfeiture order was made,
|
|
(b) the defendant
in those proceedings, or
|
|
(c) a person
whom the court heard under section 23(7) before making the order.
|
|
(3)
The certificate shall state the extent (if any) to which, at the
date of the certificate, effect has been given to the forfeiture
order.
|
|
(4)
Any balance in the hands of the proper officer after making any
payment required under paragraph 30(1)(d) or 31 shall be treated
for the purposes of section 20 of the Administration of Justice
(Northern Ireland) Act 1954 (application of fines, &c.) as if
it were a fine.
|
|
Restraint orders |
|
33.
- (1) The High Court may make a restraint order under this paragraph
where-
|
|
(a) proceedings
have been instituted in Northern Ireland for an offence under
any of sections 15 to 18,
|
|
(b) the proceedings
have not been concluded,
|
|
(c) an application
for a restraint order is made to the High Court by the prosecutor,
and
|
|
(d) a forfeiture
order has been made, or it appears to the High Court that a forfeiture
order may be made, in the proceedings for the offence.
|
|
(2)
The High Court may also make a restraint order under this paragraph
where-
|
|
(a) it is
satisfied that a person is to be charged in Northern Ireland with
an offence under any of sections 15 to 18,
|
|
(b) an application
for a restraint order is made to the High Court by the person
who the High Court is satisfied will have the conduct of the proposed
proceedings for the offence, and
|
|
(c) it appears
to the High Court that a forfeiture order may be made in those
proceedings.
|
|
(3)
A restraint order prohibits a person to whom notice of it is given,
subject to any conditions and exceptions specified in the order,
from dealing with property in respect of which a forfeiture order
has been or could be made in the proceedings referred to in sub-paragraph
(1) or (2).
|
|
(4)
An application for a restraint order may be made to a judge in chambers
without notice.
|
|
(5)
For the purposes of this paragraph a reference to dealing with property
includes a reference to removing the property from Northern Ireland.
|
|
34.
- (1) A restraint order shall provide for notice of it to be given
to any person affected by the order.
|
|
(2)
A restraint order may be discharged or varied by the High Court
on the application of a person affected by it.
|
|
(3)
In particular, a restraint order shall be discharged on an application
under sub-paragraph (2)-
|
|
(a) in the
case of an order made under paragraph 33(2), if the proceedings
in respect of the offence are not instituted within such time
as the High Court considers reasonable, and
|
|
(b) in any
case, if the proceedings for the offence have been concluded.
|
|
35.
- (1) A constable may seize any property subject to a restraint
order for the purpose of preventing it from being removed from Northern
Ireland.
|
|
(2)
Property seized under this paragraph shall be dealt with in accordance
with the High Court's directions.
|
|
36.
- (1) The power to make a restraint order under the provisions of
paragraph 33 shall be exercisable by the Secretary of State in any
case in which it appears to him that the information which it would
be necessary to provide in support of an application to the High
Court or a judge under those provisions would, if disclosed, be
likely to place any person in danger or prejudice the capability
of members of the Royal Ulster Constabulary to investigate an offence
under any of sections 15 to 18.
|
|
(2)
In their application by virtue of sub-paragraph (1) paragraphs 33
to 35 shall have effect with the necessary modifications and as
if references to the High Court were references to the Secretary
of State.
|
|
(3)
An order made by the Secretary of State by virtue of this paragraph
may be varied or discharged by the High Court under paragraph 34.
|
|
37.
- (1) A person commits an offence if he contravenes a restraint
order.
|
|
(2)
It is a defence for a person charged with an offence under this
paragraph to prove that he had a reasonable excuse for the contravention.
|
|
(3)
A person guilty of an offence under this paragraph shall be liable-
|
|
(a) on conviction
on indictment, to imprisonment for a term not exceeding 14 years,
to a fine or to both, or
|
|
(b) on summary
conviction, to imprisonment for a term not exceeding six months,
to a fine not exceeding the statutory maximum, or to both.
|
|
(4)
Nothing in this paragraph shall be taken to prejudice any power
of the High Court to deal with the contravention of a restraint
order as a contempt of court.
|
|
38.
- (1) The prosecutor shall be treated for the purposes of section
66 of the Land Registration Act (Northern Ireland) 1970 (cautions)
as a person interested in respect of any registered land to which
a restraint order or an application for such an order relates.
|
|
(2)
On the application of the prosecutor, the Registrar of Titles shall,
in respect of any registered land to which a restraint order or
an application for such an order relates, make an entry inhibiting
any dealing with the land without the consent of the High Court.
|
|
(3)
Subsections (2) and (4) of section 67 of the Land Registration Act
(Northern Ireland) 1970 (inhibitions) shall apply to an entry made
on the application of the prosecutor under sub-paragraph (2) as
they apply to an entry made on the application of any person interested
in the registered land under subsection (1) of that section.
|
|
(4)
In this paragraph-
|
|
"registered
land" has the meaning assigned to it by section 45(1)(a) of the
Interpretation Act (Northern Ireland) 1954,
|
|
"Registrar
of Titles" and "entry" have the same meanings as in the Land Registration
Act (Northern Ireland) 1970, and
|
|
"prosecutor"
in a case where a restraint order is made under paragraph 33(2)
or an application for such an order is made, means the person
who the High Court is satisfied has or will have the conduct of
the proposed proceedings.
|
|
Compensation |
|
39.
- (1) This paragraph applies where a restraint order is discharged
under paragraph 34(3)(a).
|
|
(2)
This paragraph also apples where a forfeiture order or a restraint
order is made in or in relation to proceedings for an offence under
any of sections 15 to 18 which-
|
|
(a) do not
result in conviction for an offence under any of those sections,
|
|
(b) result
in conviction for an offence under any of those sections in respect
of which the person convicted is subsequently pardoned by Her
Majesty, or
|
|
(c) result
in a conviction for an offence under any of those sections which
is subsequently quashed.
|
|
(3)
A person who had an interest in any property which was subject to
the order may apply to the High Court for compensation.
|
|
(4)
The High Court may order compensation to be paid to the applicant
if satisfied-
|
|
(a) that there
was a serious default on the part of a person concerned in the
investigation or prosecution of the offence,
|
|
(b) that the
person in default was or was acting as a member of the Royal Ulster
Constabulary, or was a member of the Office of the Director of
Public Prosecutions for Northern Ireland,
|
|
(c) that the
applicant has suffered loss in consequence of anything done in
relation to the property by or in pursuance of the forfeiture
order or restraint order, and
|
|
(d) that,
having regard to all the circumstances, it is appropriate to order
compensation to be paid.
|
|
(5)
The High Court shall not order compensation to be paid where it
appears to it that proceedings for the offence would have been instituted
even if the serious default had not occurred.
|
|
(6)
Compensation payable under this paragraph shall be paid-
|
|
(a) where
the person in default was or was acting as a member of the Royal
Ulster Constabulary, out of funds put at the disposal of the Chief
Constable under section 10(5) of the Police (Northern Ireland)
Act 1998, and
|
|
(b) where
the person in default was a member of the Office of the Director
of Public Prosecutions for Northern Ireland, by the Director of
Public Prosecutions for Northern Ireland.
|
|
40.
- (1) This paragraph applies where-
|
|
(a) a forfeiture
order or a restraint order is made in or in relation to proceedings
for an offence under any of sections 15 to 18, and
|
|
(b) the proceedings
result in a conviction which is subsequently quashed on an appeal
under section 7(2) or (5), as applied by section 8(2).
|
|
(2)
A person who had an interest in any property which was subject to
the order may apply to the High Court for compensation.
|
|
(3)
The High Court may order compensation to be paid to the applicant
if satisfied-
|
|
(a) that the
applicant has suffered loss in consequence of anything done in
relation to the property by or in pursuance of the forfeiture
order or restraint order, and
|
|
(b) that,
having regard to all the circumstances, it is appropriate to order
compensation to be paid.
|
|
(4)
Compensation payable under this paragraph shall be paid by the Secretary
of State.
|
|
Proceedings for an offence: timing |
|
41.
- (1) For the purposes of this Part of this Schedule proceedings
for an offence are instituted-
|
|
(a) when a
summons or warrant is issued under Article 20 of the Magistrates'
Courts (Northern Ireland) Order 1981 in respect of the offence;
|
|
(b) when a
person is charged with the offence after being taken into custody
without a warrant;
|
|
(c) when an
indictment charging a person with the offence is presented under
section 2(2)(c), (e) or (f) of the Grand Jury (Abolition) Act
(Northern Ireland) 1969.
|
|
(2)
Where the application of sub-paragraph (1) would result in there
being more than one time for the institution of proceedings they
shall be taken to be instituted at the earliest of those times.
|
|
(3)
For the purposes of this Part of this Schedule proceedings are concluded-
|
|
(a) when a
forfeiture order has been made in those proceedings and effect
has been given to it in respect of all the forfeited property,
or
|
|
(b) when no
forfeiture order has been made in those proceedings and there
is no further possibility of one being made as a result of an
appeal (disregarding any power of a court to grant leave to appeal
out of time).
|
|
Enforcement of orders made elsewhere in the British Islands |
|
42.
In the following provisions of this Part of this Schedule-
|
|
"an England
and Wales order" means-
|
|
(a) an order
made in England and Wales under section 23 ("an England and
Wales forfeiture order"),
|
|
(b) an order
made under paragraph 5 ("an England and Wales restraint order"),
or
|
|
(c) an order
made under any other provision of Part I of this Schedule in
relation to an England and Wales forfeiture or restraint order;
|
|
"a Scottish
order" means-
|
|
(a) an order
made in Scotland under section 23 ("a Scottish forfeiture order"),
|
|
(b) an order
made under paragraph 18 ("a Scottish restraint order"), or
|
|
(c) an order
made under any other provision of Part II of this Schedule in
relation to a Scottish forfeiture or restraint order;
|
|
"an Islands
order" means an order made in any of the Islands under a provision
of the law of that Island corresponding to-
|
|
(a) section
23 ("an Islands forfeiture order"),
|
|
(b) paragraph
33 ("an Islands restraint order"), or
|
|
(c) any
other provision of this Part of this Schedule.
|
|
43.
- (1) Subject to the provisions of this paragraph, an England and
Wales, Scottish or Islands order shall have effect in the law of
Northern Ireland.
|
|
(2)
But such an order shall be enforced in Northern Ireland only in
accordance with-
|
|
(a) the provisions
of this paragraph, and
|
|
(b) any provision
made by rules of court as to the manner in which, and the conditions
subject to which, such orders are to be enforced there.
|
|
(3)
On an application made to it in accordance with rules of court for
registration of an England and Wales, Scottish or Islands order,
the High Court shall direct that the order shall, in accordance
with such rules, be registered in that court.
|
|
(4)
Rules of court shall also make provision-
|
|
(a) for cancelling
or varying the registration of an England and Wales, Scottish
or Islands forfeiture order when effect has been given to it,
whether in Northern Ireland or elsewhere, in respect of all or,
as the case may be, part of the money or other property to which
the order applies;
|
|
(b) for cancelling
or varying the registration of an England and Wales, Scottish
or Islands restraint order which has been discharged or varied
by the court by which it was made.
|
|
(5)
If an England and Wales, Scottish or Islands forfeiture order is
registered under this paragraph the High Court shall have, in relation
to that order, the same powers as a court has under paragraph 30(1)
to give effect to a forfeiture order made by it and-
|
|
(a) paragraph
31 shall apply accordingly,
|
|
(b) any functions
of the clerk of petty sessions or the appropriate officer of the
Crown Court shall be exercised by the appropriate officer of the
High Court, and
|
|
(c) after
making any payment required by virtue of paragraph 30(1)(d) or
31, the balance of any sums received by the appropriate officer
of the High Court by virtue of an order made under this sub-paragraph
shall be paid into the Consolidated Fund.
|
|
(6)
If an England and Wales, Scottish or Islands restraint order is
registered under this paragraph-
|
|
(a) paragraphs
35 and 38 shall apply as they apply to a restraint order under
paragraph 33, and
|
|
(b) the High
Court shall have the like power to make an order under section
21 of the Administration of Justice Act 1969 (extended power to
order inspection of property, &c.) in relation to proceedings
brought or likely to be brought for an England and Wales, Scottish
or Islands restraint order as if those proceedings had been brought
or were likely to be brought in the High Court.
|
|
(7)
In addition, if an England and Wales, Scottish or Islands order
is registered under this paragraph-
|
|
(a) the High
Court shall have, in relation to its enforcement, the same power
as if the order had originally been made in the High Court,
|
|
(b) proceedings
for or with respect to its enforcement may be taken as if the
order had originally been made in the High Court, and
|
|
(c) proceedings
for or with respect to any contravention of such an order, whether
before or after such registration, may be taken as if the order
had originally been made in the High Court.
|
|
(8)
The High Court may also make such orders or do otherwise as seems
to it appropriate for the purpose of-
|
|
(a) assisting
the achievement in Northern Ireland of the purposes of an England
and Wales, Scottish or Islands order, or
|
|
(b) assisting
any receiver or other person directed by any such order to sell
or otherwise dispose of property.
|
|
(9)
The following documents shall be received in evidence in Northern
Ireland without further proof-
|
|
(a) a document
purporting to be a copy of an England and Wales, Scottish or Islands
order and to be certified as such by a proper officer of the court
by which it was made, and
|
|
(b) a document
purporting to be a certificate for purposes corresponding to those
of paragraph 32(2) and (3) and to be certified by a proper officer
of the court concerned.
|
|
Enforcement of orders made in designated countries |
|
44.
- (1) Her Majesty may by Order in Council make provision for the
purpose of enabling the enforcement in Northern Ireland of external
orders.
|
|
(2)
An "external order" means an order-
|
|
(a) which
is made in a country or territory designated for the purposes
of this paragraph by the Order in Council, and
|
|
(b) which
makes relevant provision.
|
|
(3)
"Relevant provision" means-
|
|
(a) provision
for the forfeiture of terrorist property ("an external forfeiture
order"), or
|
|
(b) provision
prohibiting dealing with property which is subject to an external
forfeiture order or in respect of which such an order could be
made in proceedings which have been or are to be instituted in
the designated country or territory ("an external restraint order").
|
|
(4)
An Order in Council under this paragraph may, in particular, include
provision-
|
|
(a) which,
for the purpose of facilitating the enforcement of any external
order that may be made, has effect at times before there is an
external order to be enforced;
|
|
(b) for matters
corresponding to those for which provision is made by, or can
be made under, paragraph 43(1) to (8) in relation to the orders
to which that paragraph applies;
|
|
(c) for the
proof of any matter relevant for the purposes of anything falling
to be done in pursuance of the Order in Council.
|
|
(5)
An Order in Council under this paragraph may also make provision
with respect to anything falling to be done on behalf of the United
Kingdom in a designated country or territory in relation to proceedings
in that country or territory for or in connection with the making
of an external order.
|
|
(6)
An Order in Council under this paragraph-
|
|
(a) may make
different provision for different cases, and
|
|
(b) shall
not be made unless a draft of it has been laid before and approved
by resolution of each House of Parliament.
|
|
|
PART
IV |
|
INSOLVENCY:
UNITED KINGDOM PROVISIONS |
|
General |
|
45.
In this Part of this Schedule-
|
|
"ancillary
order" means an order made in connection with a forfeiture, other
than the forfeiture order,
|
|
"forfeiture
order" means-
|
|
(a) an order
made in England and Wales, Scotland or Northern Ireland under
section 23,
|
|
(b) an Islands
forfeiture order within the meaning given in paragraph 12, 26
or 42, or
|
|
(c) an external
forfeiture order which is enforceable in England and Wales,
Scotland or Northern Ireland by virtue of an Order in Council
made under paragraph 14, 28 or 44,
|
|
"forfeited
property" means the money or other property to which a forfeiture
order applies, and
|
|
|
|
(a) an order
made under paragraph 5, 18 or 33,
|
|
(b) an Islands
restraint order within the meaning given in paragraph 12, 26
or 42, or
|
|
(c) an external
restraint order which is enforceable in England and Wales, Scotland
or Northern Ireland by virtue of an Order in Council made under
paragraph 14, 28 or 44.
|
|
Protection of creditors against forfeiture |
|
46.
- (1) During the period of six months beginning with the making
of a forfeiture order, the following shall not be finally disposed
of under this Schedule-
|
|
(a) the money
to which the order applies, and
|
|
(b) the money
which represents any property to which the order applies.
|
|
(2)
For the purposes of this paragraph money is finally disposed of
under this Schedule when-
|
|
(a) in England
and Wales, it is paid to the Lord Chancellor in accordance with
section 60 of the Justices of the Peace Act 1997 (application
of fines, &c.) or to the Secretary of State in accordance
with paragraph 13(5)(c),
|
|
(b) in Scotland,
it is paid to the Treasury in accordance with section 211(5) of
the Criminal Procedure (Scotland) Act 1995 (as modified by paragraph
16(3)), or
|
|
(c) in Northern
Ireland, it is paid into the Consolidated Fund in accordance with
paragraph 32(4) or 43(5)(c).
|
|
47.
- (1) This paragraph applies where-
|
|
(a) before
or after a forfeiture order is made, the commencement of an insolvency
occurs in qualifying insolvency proceedings,
|
|
(b) an insolvency
practitioner would, but for the forfeiture order, exercise a function
in those proceedings in relation to property to which the forfeiture
order applies, and
|
|
(c) he gives
written notice to the relevant officer of the matters referred
to in paragraphs (a) and (b) before the end of the period of six
months beginning with the making of the forfeiture order.
|
|
(2)
Sub-paragraph (3) shall apply to-
|
|
(a) the property
in relation to which the insolvency practitioner would, but for
the forfeiture order, exercise a function as described in sub-paragraph
(1)(b), and
|
|
(b) the proceeds
of sale of that property.
|
|
(3)
The property-
|
|
(a) shall
cease to be subject to the forfeiture order and any ancillary
order, and
|
|
(b) shall
be dealt with in the insolvency proceedings as if the forfeiture
order had never been made.
|
|
(4)
But-
|
|
(a) the property
to which sub-paragraph (3) applies is the balance remaining after
the relevant officer has exercised his powers under paragraph
50(1), and
|
|
(b) sub-paragraph
(3) shall not take effect in respect of property in relation to
which the relevant officer, or any person acting in pursuance
of an ancillary order, has incurred obligations until those obligations
have been discharged.
|
|
(5)
In this paragraph "the commencement of an insolvency" means-
|
|
(a) the making
of a bankruptcy order,
|
|
(b) the award
of sequestration,
|
|
(c) in England
and Wales or in Northern Ireland, in the case of the insolvent
estate of a deceased person, the making of an insolvency administration
order, or
|
|
(d) in the
case of a company, the passing of a resolution for its winding
up, or where no such resolution has been passed, the making of
an order by the court for the winding up of the company.
|
|
48.
- (1) Where by virtue of paragraph 47(3) property falls to be dealt
with in insolvency proceedings, the Secretary of State shall be
taken to be a creditor in those proceedings to the amount or value
of the property.
|
|
(2)
Except in a sequestration, his debt-
|
|
(a) shall
rank after the debts of all other creditors, and
|
|
(b) shall
not be paid until they have been paid in full with interest under
the relevant provision.
|
|
(3)
In sub-paragraph (2)(b) the "relevant provision" means-
|
|
(a) in relation
to the winding up of a company in England and Wales or Scotland,
section 189(2) of the Insolvency Act 1986,
|
|
(b) in relation
to a bankruptcy in England and Wales, section 328(4) of that Act,
|
|
(c) in relation
to the winding up of a company in Northern Ireland, Article 160(2)
of the Insolvency (Northern Ireland) Order 1989, and
|
|
(d) in relation
to a bankruptcy in Northern Ireland, Article 300(4) of that Order.
|
|
(4)
In a sequestration, his debt shall rank after all of the debts mentioned
in section 51(1) of the Bankruptcy (Scotland) Act 1985 and shall
not be paid until they have been paid in full.
|
|
(5)
Sub-paragraphs (2) to (4) apply notwithstanding any provision contained
in or made under any other enactment.
|
|
49.
- (1) This paragraph applies to property which ceased to be subject
to a forfeiture order by virtue of paragraph 47(3) in consequence
of the making of a bankruptcy order or an award of sequestration.
|
|
(2)
The property shall again become subject to the forfeiture order
and, if applicable, any ancillary order if-
|
|
(a) the bankruptcy
order is annulled, or
|
|
(b) the award
of sequestration is recalled or reduced.
|
|
(3)
Where the property is money or has been converted into money-
|
|
(a) the relevant
court shall make an order specifying property comprised in the
estate of the bankrupt or debtor to the amount or value of the
property, and
|
|
(b) the specified
property shall become subject to the forfeiture order, and any
applicable ancillary order, in place of the property.
|
|
(4)
In sub-paragraph (3) the "relevant court" means-
|
|
(a) the court
which ordered the annulment of the bankruptcy, or
|
|
(b) the court
which recalled or reduced the award of sequestration.
|
|
Expenses incurred in connection with forfeiture |
|
50.
- (1) Where money or other property falls to be dealt with in accordance
with paragraph 47(3), the relevant officer may-
|
|
(a) deduct
allowable forfeiture expenses from that money;
|
|
(b) retain
so much of that property as he considers necessary for the purpose
of realising it and deducting allowable forfeiture expenses from
the proceeds of realisation.
|
|
(2)
Where property is delivered up in pursuance of paragraph 47(3) and
the relevant officer has not made provision under sub-paragraph
(1) for all the allowable forfeiture expenses then-
|
|
(a) a person
who has incurred allowable forfeiture expenses for which provision
has not been made shall have a claim to their value in the insolvency
proceedings, and
|
|
(b) the expenses
in question shall be treated for the purposes of the insolvency
proceedings as if they were expenses of those proceedings.
|
|
(3)
In this paragraph "allowable forfeiture expenses"-
|
|
(a) means
expenses incurred in relation to the forfeited property by the
relevant officer,
|
|
(b) means
expenses incurred in relation to the forfeited property by a receiver,
administrator or other person appointed by the relevant officer,
|
|
(c) means
expenses incurred in relation to the forfeited property by any
person appointed or directed to deal with any property under paragraph
16, and
|
|
(d) includes
sums paid or required to be paid under paragraph 2(1)(d), 16(1)(c)
or 30(1)(d).
|
|
Protection of insolvency practitioners |
|
51.
- (1) This paragraph applies where an insolvency practitioner seizes
or disposes of property which is subject to a forfeiture order or
a restraint order and-
|
|
(a) he reasonably
believes that he is entitled to do so in the exercise of his functions,
and
|
|
(b) he would
be so entitled if the property were not subject to a forfeiture
order or a restraint order.
|
|
(2)
The insolvency practitioner shall not be liable to any person in
respect of any loss or damage resulting from the seizure or disposal
except in so far as the loss or damage is caused by his negligence.
|
|
(3)
The insolvency practitioner shall have a lien on the property seized
or the proceeds of its sale-
|
|
(a) for such
of his expenses as were incurred in connection with the insolvency
proceedings in relation to which the seizure or disposal purported
to take place, and
|
|
(b) for so
much of his remuneration as may be reasonably assigned for his
acting in connection with those proceedings.
|
|
(4)
Sub-paragraphs (1) to (3) are without prejudice to the generality
of any provision contained in the Insolvency Act 1986 or the Bankruptcy
(Scotland) Act 1985 or any other Act or the Insolvency (Northern
Ireland) Order 1989.
|
|
(5)
In this paragraph "insolvency practitioner", in any part of the
United Kingdom, means a person acting as an insolvency practitioner
in that or any other part of the United Kingdom.
|
|
(6)
For the purpose of sub-paragraph (5) any question whether a person
is acting as an insolvency practitioner in England and Wales or
in Scotland shall be determined in accordance with section 388 of
the Insolvency Act 1986, except that-
|
|
(a) the reference
in section 388(2)(a) to a permanent or interim trustee in the
sequestration of a debtor's estate shall be taken to include a
reference to a trustee in sequestration,
|
|
(b) section
388(5) shall be disregarded, and
|
|
(c) the expression
shall also include the Official Receiver acting as receiver or
manager of property.
|
|
(7)
For the purpose of sub-paragraph (5) any question whether a person
is acting as an insolvency practitioner in Northern Ireland shall
be determined in accordance with Article 3 of the {/ci}Insolvency
(Northern Ireland) Order 1989, except that-
|
|
(a) Article
3(5) shall be disregarded, and
|
|
(b) the expression
shall also include the Official Receiver acting as receiver or
manager of property.
|
|
Insolvency practitioners in the Islands and designated countries |
|
52.
- (1) An order may be made under this paragraph to secure that an
Islands or external insolvency practitioner has the same rights
under this Part of this Schedule in relation to-
|
|
(a) property
situated in England and Wales,
|
|
(b) property
situated in Scotland, or
|
|
(c) property
situated in Northern Ireland,
|
|
as
he would have if he were an insolvency practitioner in that part
of the United Kingdom.
|
|
(2)
The Secretary of State may make an order-
|
|
(a) under
sub-paragraph (1)(a) with the concurrence of the Lord Chancellor;
|
|
(b) under
sub-paragraph (1)(b).
|
|
(3)
An order under sub-paragraph (1)(c)-
|
|
(a) may be
made by the Department of Enterprise, Trade and Investment in
Northern Ireland,
|
|
(b) shall
be a statutory rule for the purposes of the Statutory Rules (Northern
Ireland) Order 1979, and
|
|
(c) shall
be subject to negative resolution within the meaning of section
41(6) of the Interpretation (Northern Ireland) Act 1954.
|
|
(4)
An order under this paragraph may, in particular, include-
|
|
(a) provision
which modifies the rights under this Part of this Schedule which
are to be conferred under the order;
|
|
(b) provision
as to the manner in which the rights conferred under the order
are to be exercised;
|
|
(c) provision
as to the conditions subject to which those rights are to be exercised,
including the obtaining of leave from a court;
|
|
(d) provision
for empowering a court granting such leave to impose such conditions
as it thinks fit.
|
|
(5)
An order under this paragraph may make different provision for different
purposes.
|
|
(6)
In this paragraph-
|
|
"Islands or
external insolvency practitioner" means a person exercising under
the insolvency law of a relevant country or territory functions
corresponding to those exercised by insolvency practitioners under
the insolvency law of any part of the United Kingdom,
|
|
"insolvency
law" has the same meaning as in section 426(10) of the Insolvency
Act 1986, except that the reference to a relevant country or territory
shall be construed in accordance with this paragraph, and
|
|
"relevant country
or territory" means-
|
|
(a) any
of the Channel Islands,
|
|
|
|
(c) any
country or territory designated as mentioned in paragraph 14,
28 or 44.
|
|
Interpretation |
|
53.
- (1) In this Part of this Schedule (other than in paragraph 51)
"insolvency practitioner" means a person acting in any qualifying
insolvency proceedings in any part of the United Kingdom as-
|
|
(a) a liquidator
of a company or partnership,
|
|
(b) a trustee
in bankruptcy,
|
|
(c) the permanent
or interim trustee on the debtor's estate,
|
|
(d) an administrator
of the insolvent estate of a deceased person, or
|
|
(e) a receiver
or manager of any property.
|
|
(2)
In this Part of this Schedule "qualifying insolvency proceedings"
means-
|
|
(a) any proceedings
under the Insolvency Act 1986 or the Insolvency (Northern Ireland)
Order 1989 for the winding up of a company or an unregistered
company and includes any voluntary winding up of a company under
Part IV of that Act or Part V of that Order,
|
|
(b) any proceedings
in England and Wales or Northern Ireland under or by virtue of
section 420 of the Insolvency Act 1986 or Article 364 of the Insolvency
(Northern Ireland) Order 1989 for the winding up of an insolvent
partnership,
|
|
(c) any proceedings
in bankruptcy or, in Scotland, any sequestration of a debtor's
estate, or
|
|
(d) any proceedings
in England and Wales or in Northern Ireland under or by virtue
of section 421 of the Insolvency Act 1986 or Article 365 of the
Insolvency (Northern Ireland) Order 1989 in relation to the insolvent
estate of a deceased person.
|
|
(3)
In this Part of this Schedule "the relevant officer" means in England
and Wales and in Northern Ireland-
|
|
(a) where
the forfeiture order in question is made by a court in England
and Wales, the proper officer within the meaning given in paragraph
4,
|
|
(b) where
the forfeiture order in question is made by a court in Northern
Ireland, the proper officer within the meaning given in paragraph
32, and
|
|
(c) in any
other case, the appropriate officer of the High Court.
|
|
(4)
In this Part of this Schedule "the relevant officer" means in Scotland-
|
|
(a) where
the forfeiture order in question is made by a court in Scotland,
the clerk of the court,
|
|
(b) in any
other case, the Principal Clerk of Session and Justiciary.
|
|
(5)
In this Part of this Schedule references to the proceeds of sale
or realisation of property are references to the proceeds after
deduction of the costs of sale or realisation.
|
|