Statutory Instrument 1999 No. 675 (S.46)

      The Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) (Scotland) Order 1999


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STATUTORY INSTRUMENTS


1999 No. 675 (S.46)

CRIMINAL LAW, SCOTLAND

The Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) (Scotland) Order 1999

  Made 10th March 1999 
  Laid before Parliament 22nd March1999 
  Coming into force 1st May 1999 

At the Court at Buckingham Palace, the 10th day of March 1999

Present,

The Queen's Most Excellent Majesty in Council

Her Majesty, in exercise of the powers conferred upon Her by section 9 of the Criminal Justice (International Co-operation) Act 1990[1] and section 43 of the Proceeds of Crime (Scotland) Act 1995[2], is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:

Citation, commencement and extent
     1.  - (1) This Order may be cited as the Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) (Scotland) Order 1999 and shall come into force on 1st May 1999.

    (2) This Order extends to Scotland only.

Interpretation
    
2.  - (1) In this Order-

    "the Act" means the Proceeds of Crime (Scotland) Act 1995;

    "the 1990 Act" means the Criminal Justice (International Co-operation) Act 1990;

    "appropriate authority of a designated country" means-

    (a) the authority specified opposite that country in Part I or, as the case may be, Part II of Schedule 1 to this Order;

    (b) where no authority is so specified, the authority appearing to the court to be the appropriate authority for the purposes of section 9 of the 1990 Act and of the relevant provisions of the Act as applied by article 4 of this Order;

    "a court of a designated country" includes a court of any state or territory of a designated country;

    "designated country" means a country or territory designated under article 3 of this Order;

    "drug trafficking offence" has the same meaning as in section 49(5) of the Act as applied by article 4 of this Order;

    "external forfeiture order" means an order, including any decree, direction or judgment, or any part thereof, however described, made by a court in a designated country for the forfeiture and destruction or the forfeiture and other disposal of anything in respect of which an offence to which this Order applies has been committed or which was used or intended for use in connection with the commission of such an offence;

    "offence to which this Order applies" means a drug trafficking offence or any offence corresponding to or similar to an offence to which Part I of the Act applies or an offence in respect of which a suspended forfeiture order may be made under section 21 of the Act;

    "property" has the same meaning as in section 49(1) of the Act.

    (2) Proceedings are instituted in a designated country when-

    (a) under the law of the designated country concerned one of the steps specified in relation to that country in the right-hand column of Schedule 2 to this Order has been taken there in respect of an alleged offence to which this Order applies; or

    (b) where no steps have been specified in relation thereto as mentioned in paragraph (a) above, the accused has been notified in writing in accordance with the laws of the designated country that the appropriate authorities of that country have begun proceedings against him in respect of an offence; or

    (c) an application has been made to a court in a designated country for an external forfeiture order,

and where the application of this paragraph would result in there being more than one time for the institution of proceedings, they shall be taken to have been instituted at the earliest of those times.

    (3) Proceedings are concluded-

    (a) when (disregarding any power of a court to grant leave to appeal out of time) there is no further possibility of a forfeiture order being made in the proceedings;

    (b) on the satisfaction of a forfeiture order made in the proceedings (whether by the recovery of all property liable to be recovered or otherwise).

    (4) An order is subject to appeal until (disregarding any power of a court to grant leave to appeal out of time) there is no further possibility of an appeal on which the order could be raised or set aside.

Designation of countries and territories
    
3.  - (1) There are hereby designated for the purposes of section 9 of the 1990 Act-

Application of the Act
    
4. In relation to a designated country, Parts II, III and V of the Act shall apply for the purposes of this Order subject to the modifications specified in Schedule 3 to this Order.

Registration of external forfeiture orders
    
5.  - (1) An external forfeiture order shall be registered in accordance with this article before it is capable of being enforced under this Order and the provisions of the Act as applied by this Order.

    (2) On an application made by or on behalf of the Government of a designated country, the Court of Session may register an external forfeiture order made there if-

    (3) In paragraph (2) above "appeal" includes-

    (4) The Court of Session shall cancel the registration of an external forfeiture order if it appears to the court that the order has been satisfied by the forfeiture of the property liable to be recovered under the external forfeiture order or by any other means.

Proof of orders and judgment of court in a designated country
    
6.  - (1) For the purposes of this Order and the provisions of the Act as applied by article 4 of this Order-

    (2) A document purporting to be a copy of any order made or judgment given by a court in a designated country is duly authenticated for the purpose of paragraph (1)(b) above if it purports to be certified by any person in his capacity as a judge, magistrate or officer of the court in question or by or on behalf of the appropriate authority of the designated country.

Evidence in relation to proceedings and orders in a designated country
    
7.  - (1) For the purposes of this Order and the provisions of the Act as applied by article 4 of this Order, a certificate purporting to be issued by or on behalf of the appropriate authority of a designated country stating-

shall, in any proceedings in the Court of Session or the High Court, be sufficient evidence of the facts so stated.

    (2) In any such proceedings a statement contained in a document, duly authenticated, which purports to have been received in evidence or to be a copy of a document so received, or to set out or summarise evidence given in proceedings in a court in a designated country, shall be sufficient evidence of any fact stated therein.

    (3) A document is duly authenticated for the purposes of paragraph (2) above if it purports to be certified by any person in his capacity as judge, magistrate or officer of the court in the designated country, or by or on behalf of the appropriate authority of the designated country, to have been received in evidence or to be a copy of a document so received, or, as the case may be, to be the original document containing or summarising the evidence or a true copy of that document.

Certificate of appropriate authority
    
8. Where in relation to any designated country no authority is specified in Schedule 1 to this Order, a certificate made by the Secretary of State to the effect that the authority specified therein is the appropriate authority for the purposes of this Order and the provisions of the Act as applied by article 4 of this Order, shall be sufficient evidence of that fact.

Representation of government of a designated country
    
9. A request for assistance sent to the Secretary of State by the appropriate authority of a designated country shall, unless the contrary is shown, be deemed to constitute the authority of the government of that country for the Lord Advocate to act on its behalf in any proceedings in the Court of Session or the High Court under article 5 of this Order or any provision of the Act as applied by article 4 of this Order.

Satisfaction of forfeiture order or suspended forfeiture order in a designated country
    
10.  - (1) Where-

the property shall be regarded as validly forfeited for the purposes of the order.

    (2) For the purposes of this article, and without prejudice to the sufficiency of any evidence which may be sufficient apart from this paragraph, a certificate stating that property has been recovered in execution of a request by the Secretary of State stating the value of the property so recovered and the date on which it was recovered shall, in any proceedings in a court in Scotland be sufficient evidence of the facts so stated.

Revocations
    
11. The following Orders are hereby revoked namely-

    (a) The Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) (Scotland) Order 1991[3];

    (b) The Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) (Scotland) Amendment Order 1992[4];

    (c) The Criminal Justice (International Co-operation Act 1990 (Enforcement of Overseas Forfeiture Orders) (Scotland) Amendment Order 1993[5];

    (d) The Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) (Scotland) Amendment (No. 2) Order 1993[6];

    (e) The Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) (Scotland) Amendment Order 1994[7].


A. K. Galloway
Clerk of the Privy Council


SCHEDULE 1
Article 3



PART I

DESIGNATED COUNTRIES - DRUG TRAFFICKING OFFENCES

Designated country Appropriate authority
Afghanistan  
Algeria  
Anguilla The Attorney General of Anguilla
Antigua and Barbuda The Attorney General
Argentina The Ministry of Foreign Affairs
Armenia  
Australia The Attorney General's Department
Austria  
Azerbaijan  
Bahamas, The The Attorney General of the Bahamas
Bahrain The Ministry of the Interior
Bangladesh  
Barbados The Attorney General
Belarus  
Belgium  
Belize  
Benin  
Bermuda The Attorney General of Bermuda
Bhutan  
Bolivia The Secretaria Nacional de Defensa Social del Ministerio de Gobierno
Bosnia and Herzegovina  
Botswana  
Brazil  
British Virgin Islands The Attorney General of the British Virgin Islands
Brunei Darussalam  
Bulgaria  
Burkina Faso  
Burundi  
Cameroon  
Canada The Minister of Justice or officials designated by that Minister
Cape Verde  
Cayman Islands, The The Attorney General of the Cayman Islands
Chad  
Chile Ministerio del Interior
China  
Colombia The Fiscalia General de la Nacion and the Ministerio de Justicia del Derecho
Costa Rica  
Cote d'Ivoire  
Croatia  
Cuba  
Cyprus  
Czech Republic, The  
Denmark  
Dominica  
Dominican Republic  
Ecuador Consejo Nacional de Control de Sustancias Estupefacientes y Psicotropicas (CONSEP)
Egypt  
El Salvador  
Ethiopia  
Fiji  
Finland  
France  
Gambia  
Germany  
Ghana  
Gibraltar The Attorney General of Gibraltar
Greece  
Grenada The Ministry of External Affairs
Guatemala  
Guernsey Her Majesty's Attorney General for the Bailiwick of Guernsey
Guinea  
Guinea-Bissau  
Guyana The Permanent Secretary, Ministry of Home Affairs
Haiti  
Honduras  
Hong Kong The Department of Justice
Hungary  
India The Ministry of Home Affairs
Iran  
Ireland  
Isle of Man Her Majesty's Attorney General for the Isle of Man
Italy The Ministry of Justice
Jamaica  
Japan  
Jersey Her Majesty's Attorney General for the Bailiwick of Jersey
Jordan  
Kazakhstan  
Kenya  
Kyrgyzstan  
Latvia  
Lesotho  
Lithuania  
Luxembourg  
Macedonia, the former Yugoslav Republic of  
Madagascar  
Malawi  
Malaysia The Inspector General of Police, Malaysia
Mali  
Malta  
Mauritania  
Moldova  
Monaco  
Montserrat The Attorney General of Montserrat
Morocco  
Myanmar  
   
Nepal  
Netherlands, The Afdeling Internationale Rechtshulp
Nicaragua  
Niger  
Nigeria The Attorney General of the Federation of the Republic of Nigeria
Norway  
Oman  
Pakistan  
Panama The Ministry of Government and Justice
Paraguay National Anti Drugs Secretariat of the Presidency of the Republic (SENAD)
Peru  
Poland  
Portugal  
Qatar  
Romania The Ministry of the Interior and the Ministry of Justice
Russian Federation, The  
Saint Kitts and Nevis  
Saint Lucia  
Saint Vincent and the Grenadines  
Sao Tome and Principe  
Saudi Arabia The Ministry of the Interior
Senegal  
Seychelles  
Sierra Leone  
Slovakia  
Slovenia  
South Africa The Department of Foreign Affairs
Spain The Ministerio de Justicia, Madrid
Sri Lanka  
Sudan  
Suriname  
Swaziland  
Sweden The Ministry for Foreign Affairs
Switzerland Office federal de la police
Syrian Arab Republic  
Tajikistan  
Thailand The Attorney General or a person designated by him
Togo  
Tonga  
Trinidad and Tobago  
Tunisia  
Turkey  
Turkmenistan  
Turks and Caicos Island  
Uganda  
Ukraine The Office of the General Prosecutor and the Ministry of Justice
United Arab Emirates  
United Mexican States The Office of the Attorney General
United Republic of Tanzania  
United States of America The Attorney General of the United States of America
Uruguay The Ministry of Education and Culture
Uzbekistan  
Venezuela  
Yemen  
Yugoslavia, the Federal Republic of  
Zambia  
Zimbabwe  



PART II

DESIGNATED COUNTRIES - OTHER OFFENCES

Designated Country Appropriate Country
Antigua and Barbuda The Attorney General
Australia The Attorney General's Department
Austria  
Bulgaria  
Canada The Minister of Justice or officials designated by that Minister
Colombia The Fiscalia General de la Nacion and the Ministerio de Justicia del Derecho
Cyprus  
Czech Republic, The  
Denmark  
Finland  
France  
Hong Kong The Department of Justice
India The Ministry of Home Affairs
Ireland  
Isle of Man Her Majesty's Attorney General for the Isle of Man
Italy The Ministry of Justice
Lithuania  
Netherlands, The Afdeling Internationale Rechtshulp
Nigeria The Attorney General of the Federation of the Republic of Nigeria
Norway  
Romania The Ministry of the Interior and the Ministry of Justice
Sweden The Ministry of Foreign Affairs
Switzerland Office federal de la police
Thailand The Attorney General or a person designated by him
Ukraine The Office of the General Prosecutor and the Ministry of Justice
United Mexican States The Office of the Attorney General of the Republic
United States of America The Attorney General of the United States of America




Notes:

[1] 1990 c.5. Section 9 was amended by section 21 of the Criminal Justice Act 1993 (c.36) by section 14 of the Proceeds of Crime Act 1995 (c.11) and by paragraph 190 of Schedule 6 to the Criminal Justice (Scotland) Act 1995 (c.20).back

[2] 1995 c.43.back

[3] S.I. 1991/1468.back

[4] S.I. 1992/1734.back

[5] S.I. 1993/1807.back

[6] S.I. 1993/3155.back

[7] S.I. 1994/1645.back



 
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© Crown copyright 1999
Prepared 21 April 1999