Office of Public Sector Information
PART 4 continued
(1) This section applies if—
(a) a confiscation order is made, and
(b) the Director is appointed as the enforcement authority for the order under section 184.
(2) But this section does not apply if—
(a) the confiscation order was made by the Court of Appeal, and
(b) when the Crown Court comes to proceed under this section the confiscation order has been satisfied.
(3) If this section applies the Crown Court must make an order for the appointment of a receiver in respect of realisable property.
(4) An order under subsection (3)—
(a) must confer power on the Director to nominate the person who is to be the receiver, and
(b) takes effect when the Director nominates that person.
(5) The Director must not nominate a person under subsection (4) unless at the time he does so the confiscation order—
(a) is not satisfied, and
(b) is not subject to appeal.
(6) A person nominated to be the receiver under subsection (4) may be—
(a) a member of the staff of the Agency;
(b) a person providing services under arrangements made by the Director.
(7) If this section applies section 198 does not apply.
(1) If the court makes an order for the appointment of a receiver under section 200 it may act under this section on the application of the Director.
(2) The court may by order confer on the receiver the following powers in relation to the realisable property—
(a) power to take possession of the property;
(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 Northern Ireland and to do any of the following—
(a) search for or inspect anything authorised by the court;
(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—
(a) hold property;
(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 realisable property to give possession of it to the receiver.
(6) The court—
(a) may order a person holding an interest in realisable property to make to the receiver such payment as the court specifies in respect of a beneficial interest held by the defendant or the recipient of a tainted gift;
(b) may (on the payment being made) by order transfer, grant or extinguish any interest in the property.
(7) Subsections (2), (5) and (6) do not apply to property for the time being subject to a charge under any of these provisions—
(a) section 9 of the Drug Trafficking Offences Act 1986 (c. 32);
(b) section 78 of the Criminal Justice Act 1988 (c. 33);
(c) Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));
(d) section 27 of the Drug Trafficking Act 1994 (c. 37);
(e) Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).
(8) The court must not—
(a) confer the power mentioned in subsection (2)(b) or (c) in respect of property, or
(b) exercise the power conferred on it by subsection (6) in respect of property,
unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.
(9) The court may order that a power conferred by an order under this section is subject to such conditions and exceptions as it specifies.
(10) Managing or otherwise dealing with property includes—
(a) selling the property or any part of it or interest in 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.
(1) This section applies to sums which are in the hands of a receiver appointed under section 198 if they are—
(a) the proceeds of the realisation of property under section 199;
(b) sums (other than those mentioned in paragraph (a)) in which the defendant holds an interest.
(2) The sums must be applied as follows—
(a) first, they must be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under this subsection by virtue of section 432;
(b) second, they must be applied in making any payments directed by the Crown Court;
(c) third, they must be applied on the defendant’s behalf towards satisfaction of the confiscation order.
(3) If the amount payable under the confiscation order has been fully paid and any sums remain in the receiver’s hands he must distribute them—
(a) among such persons who held (or hold) interests in the property concerned as the Crown Court directs, and
(b) in such proportions as it directs.
(4) Before making a direction under subsection (3) the court must give persons who held (or hold) interests in the property concerned a reasonable opportunity to make representations to it.
(5) For the purposes of subsections (3) and (4) the property concerned is—
(a) the property represented by the proceeds mentioned in subsection (1)(a);
(b) the sums mentioned in subsection (1)(b).
(6) The receiver applies sums as mentioned in subsection (2)(c) by paying them to the appropriate chief clerk on account of the amount payable under the order.
(7) The appropriate chief clerk is the chief clerk of the court at the place where the confiscation order was made.
(1) This section applies if a chief clerk receives sums on account of the amount payable under a confiscation order (whether the sums are received under section 202 or otherwise).
(2) The chief clerk’s receipt of the sums reduces the amount payable under the order, but he must apply the sums received as follows.
(3) First he must apply them in payment of such expenses incurred by a person acting as an insolvency practitioner as—
(a) are payable under this subsection by virtue of section 432, but
(b) are not already paid under section 202(2)(a).
(4) If the chief clerk received the sums under section 202 he must next apply them—
(a) first, in payment of the remuneration and expenses of a receiver appointed under section 196, to the extent that they have not been met by virtue of the exercise by that receiver of a power conferred under section 197(2)(d);
(b) second, in payment of the remuneration and expenses of the receiver appointed under section 198.
(5) If a direction was made under section 163(6) for an amount of compensation to be paid out of sums recovered under the confiscation order, the chief clerk must next apply the sums in payment of that amount.
(6) If any amount remains after the chief clerk makes any payments required by the preceding provisions of this section, the amount must be treated for the purposes of section 20 of the Administration of Justice Act (Northern Ireland) 1954 (c. 9 (N.I.)) (application of fines) as if it were a fine.
(7) Subsection (4) does not apply if the receiver is a member of the staff of the Director of Public Prosecutions for Northern Ireland or of the Commissioners of Customs and Excise; and it is immaterial whether he is a permanent or temporary member or he is on secondment from elsewhere.
(1) This section applies to sums which are in the hands of a receiver appointed under section 200 if they are—
(a) the proceeds of the realisation of property under section 201;
(b) sums (other than those mentioned in paragraph (a)) in which the defendant holds an interest.
(2) The sums must be applied as follows—
(a) first, they must be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under this subsection by virtue of section 432;
(b) second, they must be applied in making any payments directed by the Crown Court;
(c) third, they must be applied on the defendant’s behalf towards satisfaction of the confiscation order by being paid to the Director on account of the amount payable under it.
(3) If the amount payable under the confiscation order has been fully paid and any sums remain in the receiver’s hands he must distribute them—
(a) among such persons who held (or hold) interests in the property concerned as the Crown Court directs, and
(b) in such proportions as it directs.
(4) Before making a direction under subsection (3) the court must give persons who held (or hold) interests in the property concerned a reasonable opportunity to make representations to it.
(5) For the purposes of subsections (3) and (4) the property concerned is—
(a) the property represented by the proceeds mentioned in subsection (1)(a);
(b) the sums mentioned in subsection (1)(b).
(1) This section applies if the Director receives sums on account of the amount payable under a confiscation order (whether the sums are received under section 204 or otherwise).
(2) The Director’s receipt of the sums reduces the amount payable under the order, but he must apply the sums received as follows.
(3) First he must apply them in payment of such expenses incurred by a person acting as an insolvency practitioner as—
(a) are payable under this subsection by virtue of section 432, but
(b) are not already paid under section 204(2)(a).
(4) If the Director received the sums under section 204 he must next apply them—
(a) first, in payment of the remuneration and expenses of a receiver appointed under section 196, to the extent that they have not been met by virtue of the exercise by that receiver of a power conferred under section 197(2)(d);
(b) second, in payment of the remuneration and expenses of the receiver appointed under section 200.
(5) If a direction was made under section 163(6) for an amount of compensation to be paid out of sums recovered under the confiscation order, the Director must next apply the sums in payment of that amount.
(6) Subsection (4) does not apply if the receiver is a member of the staff of the Agency or a person providing services under arrangements made by the Director.
(1) Subsections (2) and (3) apply if a court makes a restraint order.
(2) If the order applies to a tenancy of any premises, no landlord or other person to whom rent is payable may exercise a right within subsection (3) except with the leave of the High Court and subject to any terms the High Court may impose.
(3) A right is within this subsection if it is a right of forfeiture by peaceable re-entry in relation to the premises in respect of any failure by the tenant to comply with any term or condition of the tenancy.
(4) If a court in which proceedings are pending in respect of any property is satisfied that a restraint order has been applied for or made in respect of the property, the court may either stay the proceedings or allow them to continue on any terms it thinks fit.
(5) Before exercising any power conferred by subsection (4), the court must give an opportunity to be heard to—
(a) the applicant for the restraint order, and
(b) any receiver appointed in respect of the property under section 196, 198 or 200.
(1) Subsections (2) and (3) apply if a court makes an order under section 198 appointing a receiver in respect of any realisable property.
(2) If the receiver is appointed in respect of a tenancy of any premises, no landlord or other person to whom rent is payable may exercise a right within subsection (3) except with the leave of the Crown Court and subject to any terms the Crown Court may impose.
(3) A right is within this subsection if it is a right of forfeiture by peaceable re-entry in relation to the premises in respect of any failure by the tenant to comply with any term or condition of the tenancy.
(4) If a court in which proceedings are pending in respect of any property is satisfied that an order under section 198 appointing a receiver in respect of the property has been applied for or made, the court may either stay the proceedings or allow them to continue on any terms it thinks fit.
(5) Before exercising any power conferred by subsection (4), the court must give an opportunity to be heard to—
(a) the prosecutor, and
(b) the receiver (if the order under section 198 has been made).
(1) Subsections (2) and (3) apply if—
(a) the Crown Court has made an order under section 200 for the appointment of a receiver in respect of any realisable property, and
(b) the order has taken effect.
(2) If the order is for the appointment of a receiver in respect of a tenancy of any premises, no landlord or other person to whom rent is payable may exercise a right within subsection (3) except with the leave of the Crown Court and subject to any terms the Crown Court may impose.
(3) A right is within this subsection if it is a right of forfeiture by peaceable re-entry in relation to the premises in respect of any failure by the tenant to comply with any term or condition of the tenancy.
(4) If a court (whether the Crown Court or any other court) in which proceedings are pending in respect of any property is satisfied that an order under section 200 for the appointment of a receiver in respect of the property has taken effect, the court may either stay the proceedings or allow them to continue on any terms it thinks fit.
(5) Before exercising any power conferred by subsection (4), the court must give an opportunity to be heard to—
(a) the Director, and
(b) the receiver.
If a receiver appointed under section 196, 198 or 200—
(a) takes action in relation to property which is not realisable property,
(b) would be entitled to take the action if it were realisable 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.
(1) This section applies to a receiver appointed under section 196, 198 or 200.
(2) The receiver may apply—
(a) to the High Court if he is appointed under section 196;
(b) to the Crown Court if he is appointed under section 198 or 200,
for an order giving directions as to the exercise of his powers.
(3) The following persons may apply to the High Court if the receiver is appointed under section 196 or to the Crown Court if the receiver is appointed under section 198 or 200—
(a) any person affected by action taken by the receiver;
(b) any person who may be affected by action the receiver proposes to take.
(4) On an application under this section the court may make such order as it believes is appropriate.
(1) The following persons may apply to the High Court to vary or discharge an order made under section 196 or 197 or to the Crown Court to vary or discharge an order made under any of sections 198 to 201—
(a) the receiver;
(b) the person who applied for the order or (if the order was made under section 200 or 201) the Director;
(c) any person affected by the order.
(2) On an application under this section the court—
(a) may discharge the order;
(b) may vary the order.
(3) But in the case of an order under section 196 or 197—
(a) if the condition in section 189 which was satisfied was that proceedings were started or an application was made, the court must discharge the order on the conclusion of the proceedings or of the application (as the case may be);
(b) if the condition which was satisfied was that an investigation was started or an application was to be made, the court must discharge the order if within a reasonable time proceedings for the offence are not started or the application is not made (as the case may be).
(1) This section applies if—
(a) a receiver stands appointed under section 196 in respect of realisable property (the management receiver), and
(b) the court appoints a receiver under section 198 or makes an order for the appointment of a receiver under section 200.
(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 section 197.
(3) But in a case where the court makes an order under section 200 its order under subsection (2) above does not take effect until the order under section 200 takes effect.
(4) Subsection (2) does not apply to property which the management receiver holds by virtue of the exercise by him of his power under section 197(2)(d).
(5) If the management receiver complies with an order under subsection (2) he is discharged—
(a) from his appointment under section 196;
(b) from any obligation under this Act arising from his appointment.
(6) If this section applies the court may make such a consequential or incidental order as it believes is appropriate.
(1) If on an application for an order under any of sections 196 to 199 or section 201 the court decides not to make one, the person who applied for the order may appeal to the Court of Appeal against the decision.
(2) If the court makes an order under any of sections 196 to 199 or section 201, the following persons may appeal to the Court of Appeal in respect of the court’s decision—
(a) the person who applied for the order;
(b) any person affected by the order.
(3) If on an application for an order under section 210 the court decides not to make one, the person who applied for the order may appeal to the Court of Appeal against the decision.
(4) If the court makes an order under section 210, the following persons may appeal to the Court of Appeal in respect of the court’s decision—
(a) the person who applied for the order;
(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 section 211—
(a) the person who applied for the order in respect of which the application was made or (if the order was made under section 200 or 201) the Director;
(b) any person affected by the court’s decision;
(c) the receiver.
(6) On an appeal under this section the Court of Appeal may—
(a) confirm the decision, or
(b) make such order as it believes if appropriate.
(1) An appeal lies to the House of Lords from a decision of the Court of Appeal on an appeal under section 213.
(2) An appeal under this section lies at the instance of any person who was a party to the proceedings before the Court of Appeal.
(3) On an appeal under this section the House of Lords may—
(a) confirm the decision of the Court of Appeal, or
(b) make such order as it believes is appropriate.
(1) This section applies to money which—
(a) is held by a person, and
(b) is held in an account maintained by him with a bank or a building society.
(2) This section also applies to money which is held by a person and which—
(a) has been seized by a constable under Article 21 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)) (general power of seizure etc), and
(b) is held in an account maintained by a police force with a bank or a building society.
(3) This section also applies to money which is held by a person and which—
(a) has been seized by a customs officer under Article 21 of the 1989 Order as applied by order made under Article 85(1) of that Order, and
(b) is held in an account maintained by the Commissioners of Customs and Excise with a bank or a building society.
(4) This section applies if the following conditions are satisfied—
(a) a restraint order has effect in relation to money to which this section applies;
(b) a receiver has not been appointed under section 198 in relation to the money;
(c) a confiscation order is made against the person by whom the money is held;
(d) the Director has not been appointed as the enforcement authority for the confiscation order;
(e) any period allowed under section 161 for payment of the amount ordered to be paid under the confiscation order has ended.
(5) In such a case on the application of the prosecutor a magistrates' court may order the bank or building society to pay the money to the appropriate chief clerk on account of the amount payable under the confiscation order.
(6) If a bank or building society fails to comply with an order under subsection (5)—
(a) the magistrates' court may order it to pay an amount not exceeding £5,000, and
(b) for the purposes of the Magistrates' Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)) the sum is to be treated as adjudged to be paid by a conviction of the magistrates' court.
(7) In order to take account of changes in the value of money the Secretary of State may by order substitute another sum for the sum for the time being specified in subsection (6)(a).
(8) For the purposes of this section—
(a) a bank is a deposit-taking business within the meaning of the Banking Act 1987 (c. 22);
(b) “building society” has the same meaning as in the Building Societies Act 1986 (c. 53);
(c) “appropriate chief clerk” has the same meaning as in section 202(7).
(1) This section applies to—
(a) an application under section 190, 191, 196, 197 or 211;
(b) an appeal under section 192, 193, 213 or 214.
(2) An accredited financial investigator must not make such an application or bring such an appeal unless he falls within subsection (3).
(3) An accredited financial investigator falls within this subsection if he is one of the following or is authorised for the purposes of this section by one of the following—
(a) a police officer who is not below the rank of superintendent,
(b) a customs officer who is not below such grade as is designated by the Commissioners of Customs and Excise as equivalent to that rank,
(c) an accredited financial investigator who falls within a description specified in an order made for the purposes of this paragraph by the Secretary of State under section 453.
(4) If such an application is made or appeal brought by an accredited financial investigator any subsequent step in the application or appeal or any further application or appeal relating to the same matter may be taken, made or brought by a different accredited financial investigator who falls within subsection (3).
(5) If—
(a) an application for a restraint order is made by an accredited financial investigator, and
(b) a court is required under section 206(5) to give the applicant for the order an opportunity to be heard,
the court may give the opportunity to a different accredited financial investigator who falls within subsection (3).
(1) This section applies to—
(a) the powers conferred on a court by sections 189 to 208 and sections 210 to 215;
(b) the powers of a receiver appointed under section 196, 198 or 200.
(2) The powers—
(a) must be exercised with a view to the value for the time being of realisable property being made available (by the property’s realisation) for satisfying any confiscation order that has been or may be made against the defendant;
(b) must be exercised, in a case where a confiscation order has not been made, with a view to securing that there is no diminution in the value of realisable property;
(c) must be exercised without taking account of any obligation of the defendant or a recipient of a tainted gift if the obligation conflicts with the object of satisfying any confiscation order that has been or may be made against the defendant;
(d) may be exercised in respect of a debt owed by the Crown.
(3) Subsection (2) has effect subject to the following rules—
(a) the powers must be exercised with a view to allowing a person other than the defendant or a recipient of a tainted gift to retain or recover the value of any interest held by him;
(b) in the case of realisable 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 a confiscation order has not been made against the defendant, property must not be realised if the court so orders under subsection (4).
(4) If on an application by the defendant, or by the recipient of a tainted gift, the court decides that property cannot be replaced it may order that it must not be sold.
(5) An order under subsection (4) may be revoked or varied.
Proceeds of Crime Act 2002