Serious Crime Bill (HC Bill 116)

22 Conditions for exercise of search and seizure powers

(1) In section 127B of the Proceeds of Crime Act 2002 (conditions for exercise of
powers), in subsection (2)(d), for “is reasonable cause to believe” substitute
“are reasonable grounds to suspect”.

(2) 5In section 127G of that Act (“appropriate approval”), before paragraph (b) of
subsection (3) insert—

“(ab) in relation to the exercise of a power by a National Crime
Agency officer, the Director General of the National Crime
Agency or any other National Crime Agency officer authorised
10by the Director General (whether generally or specifically) for
this purpose,”.

Civil recovery

23 Prohibitory property orders: PPO receivers

(1) The Proceeds of Crime Act 2002 is amended as follows.

(2) 15After section 255F insert—

“255G Receivers in connection with prohibitory property orders

(1) Subsection (2) applies if—

(a) the Court of Session makes a prohibitory property order on an
application by an enforcement authority, and

(b) 20the authority applies to the court to proceed under subsection
(2) (whether as part of the application for the prohibitory
property order or at any time afterwards).

(2) The Court of Session may by order appoint a person (a “PPO receiver”)
in respect of any property to which the prohibitory property order
25applies.

(3) An application for an order under this section may be made without
notice if the circumstances are such that notice of the application would
prejudice any right of the enforcement authority to obtain a recovery
order in respect of any property.

(4) 30In its application for an order under this section, the enforcement
authority must nominate a suitably qualified person for appointment
as a PPO receiver.

(5) Such a person may be a member of staff of the enforcement authority.

(6) The enforcement authority may apply a sum received by it under
35section 280(2) in making payment of the remuneration and expenses of
a PPO receiver appointed under this section.

(7) Subsection (6) does not apply in relation to the remuneration of the PPO
receiver if he is a member of the staff of the enforcement authority (but
it does apply in relation to such remuneration if the PPO receiver is a
40person providing services under arrangements made by the
enforcement authority).

255H Powers of receivers appointed under section 255G

(1) If the Court of Session appoints a PPO receiver under section 255G on
an application by an enforcement authority, the court may act under
this section on the application of the authority.

(2) 5The court may by order authorise or require the PPO receiver—

(a) to exercise any of the powers mentioned in paragraph 5 of
Schedule 6 (management powers) in relation to any property in
respect of which the PPO receiver is appointed,

(b) to take any other steps the court thinks appropriate in
10connection with the management of any such property
(including securing the detention, custody or preservation of
the property in order to manage it).

(3) The court may by order require any person in respect of whose
property the PPO receiver is appointed—

(a) 15to bring the property to a place in Scotland specified by the PPO
receiver or to place it in the custody of the PPO receiver (if, in
either case, he is able to do so),

(b) to do anything he is reasonably required to do by the PPO
receiver for the preservation of the property.

(4) 20The court may by order require any person in respect of whose
property the PPO receiver is appointed to bring any documents
relating to the property which are in his possession or control to a place
in Scotland specified by the PPO receiver or to place them in the
custody of the PPO receiver.

(5) 25In subsection (4) “document” means anything in which information of
any description is recorded.

(6) Any prohibition on dealing with property imposed by a prohibitory
property order does not prevent a person from complying with any
requirements imposed by virtue of this section.

(7) 30If—

(a) the PPO receiver deals with any property which is not property
in respect of which he is appointed under section 255G, and

(b) at the time he deals with the property the PPO receiver believes
on reasonable grounds that he is entitled to do so by virtue of
35his appointment,

the PPO receiver is not liable to any person in respect of any loss or
damage resulting from his dealing with the property except so far as
the loss or damage is caused by his negligence.

255I Supervision of PPO receiver and variations

(1) 40Any of the following persons may at any time apply to the Court of
Session for directions as to the exercise of the functions of a PPO
receiver—

(a) the PPO receiver,

(b) any party to the proceedings for the appointment of the PPO
45receiver or the prohibitory property order concerned,

(c) any person affected by any action taken by the PPO receiver,

(d) any person who may be affected by any action proposed to be
taken by the PPO receiver.

(2) Before giving any directions under subsection (1), the court must give
an opportunity to be heard to—

(a) 5the PPO receiver,

(b) the parties to the proceedings for the appointment of the PPO
receiver and for the prohibitory property order concerned,

(c) any person who may be interested in the application under
subsection (1).

(3) 10The court may at any time vary or recall—

(a) an order appointing a PPO receiver,

(b) any order under section 255H, or

(c) any directions under this section.

(4) Before exercising any power under subsection (3), the court must give
15an opportunity to be heard to—

(a) the PPO receiver,

(b) the parties to the proceedings for—

(i) the appointment of the PPO receiver,

(ii) the order under section 255H, or

(iii) 20(as the case may be) the directions under this section,

(c) the parties to the proceedings for the prohibitory property order
concerned,

(d) any person who may be affected by the court’s decision.”

(3) After section 282C insert—

“282CA 25 Enforcement abroad before recovery order: PPO receiver

(1) This section applies if—

(a) a prohibitory property order made by the Court of Session has
effect in relation to property, and

(b) the PPO receiver appointed under section 255G in respect of the
30property believes that it is in a country outside the United
Kingdom (the “receiving country”).

(2) The PPO receiver may send a request for assistance in relation to the
property to the Secretary of State with a view to it being forwarded
under this section.

(3) 35The Secretary of State must forward the request for assistance to the
government of the receiving country.

(4) A request for assistance under this section is a request to the
government of the receiving country—

(a) to secure that any person is prohibited from dealing with the
40property,

(b) for assistance in connection with the management of the
property, including with securing its detention, custody or
preservation.”

CHAPTER 3 Northern Ireland

Confiscation: assets held by defendant and other

24 Determination of extent of defendant’s interest in property

After section 160 of the Proceeds of Crime Act 2002 insert—

“160A 5 Determination of extent of defendant’s interest in property

(1) Where it appears to a court making a confiscation order that—

(a) there is property held by the defendant that is likely to be
realised or otherwise used to satisfy the order, and

(b) a person other than the defendant holds, or may hold, an
10interest in the property,

the court may, if it thinks it appropriate to do so, determine the extent
(at the time the confiscation order is made) of the defendant’s interest
in the property.

(2) The court must not exercise the power conferred by subsection (1)
15unless it gives to anyone who the court thinks is or may be a person
holding an interest in the property a reasonable opportunity to make
representations to it.

(3) A determination under this section is conclusive in relation to any
question as to the extent of the defendant’s interest in the property that
20arises in connection with—

(a) the realisation of the property, or the transfer of an interest in
the property, with a view to satisfying the confiscation order, or

(b) any action or proceedings taken for the purposes of any such
realisation or transfer.

(4) 25Subsection (3)—

(a) is subject to section 199(8B), and

(b) does not apply in relation to a question that arises in
proceedings before the Court of Appeal or the Supreme Court.

(5) In this Part, the “extent” of the defendant’s interest in property means
30the proportion that the value of the defendant’s interest in it bears to
the value of the property itself.”

25 Provision of information

(1) In section 166 of the Proceeds of Crime Act 2002 (statement of information),
after subsection (6) insert—

“(6A) 35A statement of information (other than one to which subsection (6B)
applies) must include any information known to the prosecutor which
the prosecutor believes is or would be relevant for the purpose of
enabling the court to decide—

(a) whether to make a determination under section 160A, or

(b) 40what determination to make (if the court decides to make one).

(6B) If the court has decided to make a determination under section 160A, a
further statement of information under subsection (6)(b) must, if the
court so orders, include specified information that is relevant to the
determination.”

(2) 5In section 168 of that Act (provision of information by defendant)—

(a) in subsection (2), after “functions” insert “(including functions under
section 160A)”;

(b) in subsection (6)(b), for “deciding the available amount under section
159,” substitute “deciding—

(i) 10the available amount under section 159, or

(ii) whether to make a determination under section
160A, or what determination to make (if the
court decides to make one),”.

(3) After that section insert—

“168A 15 Provision of information as to defendant’s interest in property

(1) This section applies if the court—

(a) is considering whether to make a determination under section
160A of the extent of the defendant’s interest in any property, or

(b) is deciding what determination to make (if the court has
20decided to make a determination under that section).

In this section “interested person” means a person (other than the
defendant) who the court thinks is or may be a person holding an
interest in the property.

(2) For the purpose of obtaining information to help it in carrying out its
25functions under section 160A the court may at any time order an
interested person to give it information specified in the order.

(3) An order under this section may require all or a specified part of the
information to be given in a specified manner and before a specified
date.

(4) 30If an interested person fails without reasonable excuse to comply with
an order under this section the court may draw such inference as it
believes is appropriate.

(5) Subsection (4) does not affect any power of the court to deal with the
person in respect of a failure to comply with an order under this section.

(6) 35If the prosecutor accepts to any extent an allegation made by an
interested person—

(a) in giving information required by an order under this section,
or

(b) in any other statement given to the court in relation to any
40matter relevant to a determination under section 160A,

the court may treat the acceptance as conclusive of the matters to which
it relates.

(7) For the purposes of this section an allegation may be accepted in a
manner ordered by the court.

(8) 45If the court makes an order under this section it may at any time vary it
by making another one.

(9) No information given by a person under this section is admissible in
evidence in proceedings against that person for an offence.”

26 Appeals

(1) In section 181 of the Proceeds of Crime Act 2002 (appeal to Court of Appeal),
5after subsection (3) insert—

“(4) An appeal lies to the Court of Appeal against a determination, under
section 160A, of the extent of the defendant’s interest in property.

(5) An appeal under subsection (4) lies at the instance of—

(a) the prosecutor;

(b) 10a person who the Court of Appeal thinks is or may be a person
holding an interest in the property, if subsection (6) or (7)
applies.

(6) This subsection applies if the person was not given a reasonable
opportunity to make representations when the determination was
15made.

(7) This subsection applies if it appears to the Court of Appeal to be
arguable that giving effect to the determination would result in a
serious risk of injustice to the person.

(8) An appeal does not lie under subsection (4) where—

(a) 20the Court of Appeal believes that an application under section
198 is to be made by the prosecutor for the appointment of a
receiver,

(b) such an application has been made but has not yet been
determined, or

(c) 25a receiver has been appointed under section 198.”

(2) In section 182 of that Act (court’s powers on appeal), after subsection (2)
insert—

“(2A) On an appeal under section 181(4) the Court of Appeal may—

(a) confirm the determination, or

(b) 30make such order as it believes is appropriate.”

(3) In section 183 of that Act (appeal to Supreme Court)—

(a) for subsection (2) substitute—

“(2) An appeal under this section lies at the instance of—

(a) the defendant or the prosecutor (except where
35paragraph (b) applies);

(b) if the proceedings in the Court of Appeal were
proceedings on an appeal under section 181(4), any
person who was a party to those proceedings.”;

(b) after subsection (3) insert—

“(3A) 40On an appeal under this section from a decision under section
182(2A) the Supreme Court may—

(a) confirm the decision of the Court of Appeal, or

(b) make such order as it believes is appropriate.”

27 Enforcement receivers

In section 199 of the Proceeds of Crime Act 2002 (powers of receivers etc), after
subsection (8A) insert—

“(8B) Representations that a person is entitled to make by virtue of
5subsection (8) do not include representations that are inconsistent with
a determination made under section 160A, unless—

(a) the person was not given a reasonable opportunity to make
representations when the determination was made and has not
appealed against the determination, or

(b) 10it appears to the court that there would be a serious risk of
injustice to the person if the court was bound by the
determination;

and the determination does not bind the court if paragraph (a) or (b)
applies.”

15Confiscation: other amendments

28 Time for payment

(1) For section 161 of the Proceeds of Crime Act 2002 substitute—

“161 Time for payment

(1) Unless subsection (2) applies, the full amount ordered to be paid under
20a confiscation order must be paid on the day on which the order is
made.

(2) If the court making the confiscation order is satisfied that the defendant
is unable to pay the full amount on that day, it may make an order
requiring whatever cannot be paid on that day to be paid—

(a) 25in a specified period, or

(b) in specified periods each of which relates to a specified amount.

(3) A specified period—

(a) must start with the day on which the confiscation order is made,
and

(b) 30must not exceed three months.

(4) If—

(a) within any specified period the defendant applies to the Crown
Court for that period to be extended, and

(b) the court is satisfied that, despite having made all reasonable
35efforts, the defendant is unable to pay the amount to which the
specified period relates within that period,

the court may make an order extending the period (for all or any part
or parts of the amount in question).

(5) An extended period—

(a) 40must start with the day on which the confiscation order is made,
and

(b) must not exceed six months.

(6) An order under subsection (4)—

(a) may be made after the end of the specified period to which it
relates, but

(b) must not be made after the end of the period of six months
starting with the day on which the confiscation order is made.

(7) 5Periods specified or extended under this section must be such that,
where the court believes that a defendant will by a particular day be
able—

(a) to pay the amount remaining to be paid, or

(b) to pay an amount towards what remains to be paid,

10that amount is required to be paid no later than that day.

(8) The court must not make an order under subsection (2) or (4) unless it
gives the prosecutor an opportunity to make representations.”

(2) In section 162 of that Act (interest on unpaid sums), for subsection (3)
substitute—

“(3) 15If—

(a) an application has been made under section 161(4) for a
specified period to be extended,

(b) the application has not been determined by the court, and

(c) the period of six months starting with the day on which the
20confiscation order was made has not ended,

the amount on which interest is payable under this section does not
include the amount to which the specified period relates.”

(3) In section 235 of that Act (interpretation: confiscation orders), after subsection
(1) insert—

“(1A) 25The “amount payable” under a confiscation order, where part of that
amount has been paid, means the amount that remains to be paid.”

29 Orders for securing compliance with confiscation order

After section 163 of the Proceeds of Crime Act 2002 insert—

“163A Orders for securing compliance with confiscation order

(1) 30This section applies where the court makes a confiscation order.

(2) The court may make such order as it believes is appropriate for the
purpose of ensuring that the confiscation order is effective (a
“compliance order”).

(3) The court must consider whether to make a compliance order—

(a) 35on the making of the confiscation order, and

(b) if it does not make a compliance order then, at any later time
(while the confiscation order is still in effect) on the application
of the prosecutor.

(4) In considering whether to make a compliance order, the court must, in
40particular, consider whether any restriction or prohibition on the
defendant’s travel outside the United Kingdom ought to be imposed
for the purpose mentioned in subsection (2).

(5) The court may discharge or vary a compliance order on an application
made by—

(a) the prosecutor;

(b) any person affected by the order.

163B 5Appeals against orders under section 163A

(1) If on an application under section 163A(3)(b) the Crown Court decides
not to make a compliance order, the prosecutor may appeal to the Court
of Appeal against the decision.

(2) The following persons may appeal to the Court of Appeal in respect of
10the Crown Court’s decision to make, discharge or vary a compliance
order—

(a) the prosecutor;

(b) any person affected by the order.

(3) On an appeal under subsection (1) or (2) the Court of Appeal may—

(a) 15confirm the decision, or

(b) make such order as it believes is appropriate.

(4) An appeal lies to the Supreme Court against a decision of the Court of
Appeal under subsection (3).

(5) An appeal under subsection (4) lies at the instance of any person who
20was a party to the proceedings before the Court of Appeal.

(6) On an appeal under subsection (4) the Supreme Court may—

(a) confirm the decision of the Court of Appeal, or

(b) make such order as it believes is appropriate.

(7) In this section “compliance order” means an order made under section
25163A.”

30 Variation or discharge

(1) In section 173 of the Proceeds of Crime Act 2002 (inadequacy of available
amount: variation of confiscation order), in subsection (1)(b), after “the
defendant” insert “or the prosecutor”.

(2) 30After section 175 of that Act insert—

“175A Recovery from estate of deceased defendant impractical: discharge of
order

(1) This section applies if—

(a) a court has made a confiscation order,

(b) 35the defendant dies while the order is not satisfied, and

(c) the prosecutor applies to the Crown Court for the discharge of
the order.

(2) The court may discharge the order if it appears to the court that—

(a) it is not possible to recover anything from the estate of the
40deceased for the purpose of satisfying the order to any extent, or

(b) it would not be reasonable to make any attempt, or further
attempt, to recover anything from the estate of the deceased for
that purpose.”

(3) Section 175A of that Act (inserted by subsection (2) above) applies to—

(a) a confiscation order made under the Criminal Justice (Confiscation)
(Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17)S.I. 1990/2588 (N.I. 17)), or

(b) a confiscation order made under Part 2 of the Proceeds of Crime
5(Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)S.I. 1996/1299 (N.I. 9)),

as it applies to a confiscation order made under the Proceeds of Crime Act 2002.

31 Absconding defendants

(1) In section 177 of the Proceeds of Crime Act 2002 (absconding defendant
convicted or committed), for subsection (2) substitute—

“(2) 10The first condition is that a defendant falls within either of the
following paragraphs—

(a) he absconds and, either before or after doing so, he is convicted
of an offence or offences in proceedings before the Crown
Court;

(b) 15he absconds after being committed to the Crown Court in
respect of an offence or offences under section 218 below
(committal with a view to a confiscation order being
considered).”

(2) For subsections (6) and (7) of that section substitute—

“(6) 20Once the defendant ceases to be an absconder—

(a) section 169 has effect as if subsection (1) read—

“(1) This section applies if—

(a) at a time when the first condition in section 177 was
satisfied the court did not proceed under section 156,

(b) 25before the end of the period of six years starting with
the day when the defendant ceased to be an
absconder, the prosecutor applies to the Crown Court
to proceed under section 156, and

(c) the court believes it is appropriate for it to do so.”;

(b) 30section 170 has effect as if subsection (4) read—

“(4) The second condition is that—

(a) before the end of the period of six years starting with
the day when the defendant ceased to be an
absconder, the prosecutor applies to the Crown Court
35to reconsider whether the defendant has benefited
from his general or particular criminal conduct (as the
case may be), and

(b) the court believes it is appropriate for it to do so.”;

(c) section 171 has effect as if subsection (1) read—

“(1) 40This section applies if—

(a) a court has made a confiscation order,

(b) the prosecutor believes that if the court were to find
the amount of the defendant’s benefit in pursuance of
this section it would exceed the relevant amount,

(c) 45before the end of the period of six years starting with
the day when the defendant ceased to be an