Criminal Finances Bill (HC Bill 75)

pursuance of the application (including any proceedings on appeal) are
concluded.

(6) Where the property to which the application relates is being detained
under this Chapter as part of an item of property, having been seized
5under section 303J(2), subsection (5) is to be read as if it required the
continued detention of the whole of the item of property.

303P Associated and joint property

(1) Sections 303Q and 303R apply if—

(a) an application is made under section 303O in respect of
10property detained under this Chapter,

(b) the court or sheriff is satisfied that the property is a listed asset,

(c) the court or sheriff is satisfied that all or part of the property is
recoverable property or intended by any person for use in
unlawful conduct, and

(d) 15there exists property that is associated with the property in
relation to which the court or sheriff is satisfied as mentioned in
paragraph (c).

(2) Sections 303Q and 303R also apply in England and Wales and Northern
Ireland if—

(a) 20an application is made under section 303O in respect of
property detained under this Chapter,

(b) the court is satisfied that the property is a listed asset,

(c) the court is satisfied that all or part of the property is
recoverable property, and

(d) 25the property in relation to which the court is satisfied as
mentioned in paragraph (c) belongs to joint tenants and one of
the tenants is an excepted joint owner.

(3) In this section and sections 303Q and 303R “associated property” means
property of any of the following descriptions that is not itself the
30forfeitable property—

(a) any interest in the forfeitable property;

(b) any other interest in the property in which the forfeitable
property subsists;

(c) if the forfeitable property is a tenancy in common, the tenancy
35of the other tenant;

(d) if (in Scotland) the forfeitable property is owned in common, the
interest of the other owner;

(e) if the forfeitable property is part of a larger property, but not a
separate part, the remainder of that property.

40References to property being associated with forfeitable property are to
be read accordingly.

(4) In this section and sections 303Q and 303R the “forfeitable property”
means the property in relation to which the court or sheriff is satisfied
as mentioned in subsection (1)(c) or (2)(c) (as the case may be).

303Q 45Agreements about associated and joint property

(1) Where—

(a) this section applies, and

(b) the person who applied for the order under section 303O (on the
one hand) and the person who holds the associated property or
who is the excepted joint owner (on the other hand) agree,

the magistrates’ court or sheriff may, instead of making an order under
5section 303O(3), make an order requiring the person who holds the
associated property or who is the excepted joint owner to make a
payment to a person identified in the order.

(2) The amount of the payment is (subject to subsection (3)) to be the
amount which the persons referred to in subsection (1)(b) agree
10represents—

(a) in a case where this section applies by virtue of section 303P(1),
the value of the forfeitable property;

(b) in a case where this section applies by virtue of section 303P(2),
the value of the forfeitable property less the value of the
15excepted joint owner’s share.

(3) The amount of the payment may be reduced if the person who applied
for the order under section 303O agrees that the other party to the
agreement has suffered loss as a result of the seizure of the forfeitable
property and any associated property under section 303J and its
20subsequent detention.

(4) The reduction that is permissible by virtue of subsection (3) is such
amount as the parties to the agreement agree is reasonable, having
regard to the loss suffered and any other relevant circumstances.

(5) An order under subsection (1) may, so far as required for giving effect
25to the agreement, include provision for vesting, creating or
extinguishing any interest in property.

(6) For the purposes of section 308(2), on the making of an order under
subsection (1), the forfeitable property is to be treated as if it had been
forfeited.

(7) 30If there is more than one item of associated property or more than one
excepted joint owner, the total amount to be paid under subsection (1),
and the part of that amount which is to be provided by each person
who holds any such associated property or who is an excepted joint
owner, is to be agreed between both (or all) of them and the person who
35applied for the order under section 303O.

(8) If the person who applied for the order under section 303O was a
constable, an SFO officer or an accredited financial investigator, that
person may enter into an agreement for the purposes of this section
only with the prior approval of a senior officer within the meaning of
40section 303E.

(9) An amount received under an order under subsection (1) must be
applied as follows—

(a) first, it must be applied in payment or reimbursement of any
reasonable costs incurred in storing or insuring the forfeitable
45property and any associated property whilst detained under
this Part;

(b) second, it must be paid—

(i) if the order was made by a magistrates’ court, into the
Consolidated Fund;

(ii) if the order was made by the sheriff, into the Scottish
Consolidated Fund.

303R Associated and joint property: default of agreement

(1) Where this section applies and there is no agreement under section
5303Q, the magistrates’ court or sheriff—

(a) must transfer the application made under section 303O to the
relevant court if satisfied that the value of the forfeitable
property and any associated property is £10,000 or more;

(b) may transfer the application made under section 303O to the
10relevant court if satisfied that the value of the forfeitable
property and any associated property is less than £10,000.

(2) The “relevant court” is—

(a) the High Court, where the application under section 303O was
made to a magistrates’ court;

(b) 15the Court of Session, where the application under section 303O
was made to the sheriff.

(3) Where (under subsection (1)(a) or (b)) an application made under
section 303O is transferred to the relevant court, the relevant court may
order the forfeiture of the property to which the application relates, or
20any part of that property, if satisfied that—

(a) the property is a listed asset, and

(b) what is to be forfeited is recoverable property or intended by
any person for use in unlawful conduct.

(4) The relevant court may, as well as making an order under subsection
25(3), make an order—

(a) providing for the forfeiture of the associated property or (as the
case may be) for the excepted joint owner’s interest to be
extinguished, or

(b) providing for the excepted joint owner’s interest to be severed.

(5) 30Where (under subsection (1)(b)) the magistrates’ court or sheriff
decides not to transfer an application made under section 303O to the
relevant court, the magistrates’ court or sheriff may, as well as making
an order under section 303O(3), make an order—

(a) providing for the forfeiture of the associated property or (as the
35case may be) for the excepted joint owner’s interest to be
extinguished, or

(b) providing for the excepted joint owner’s interest to be severed.

(6) An order under subsection (4) or (5) may be made only if the relevant
court, the magistrates’ court or the sheriff (as the case may be) thinks it
40just and equitable to do so.

(7) An order under subsection (4) or (5) must provide for the payment of an
amount to the person who holds the associated property or who is an excepted
joint owner.

(8) In making an order under subsection (4) or (5), and including provision
45in it by virtue of subsection (7), the relevant court, the magistrates’
court or the sheriff (as the case may be) must have regard to—

(a) the rights of any person who holds the associated property or
who is an excepted joint owner and the value to that person of
that property or (as the case may) of that person’s share
(including any value that cannot be assessed in terms of
5money), and

(b) the interest of the person who applied for the order under
section 303O in realising the value of the forfeitable property.

(9) If the relevant court, the magistrates’ court or the sheriff (as the case
may be) is satisfied that—

(a) 10the person who holds the associated property or who is an
excepted joint owner has suffered loss as a result of the seizure
of the forfeitable property and any associated property under
section 303J and its subsequent detention, and

(b) the circumstances are exceptional,

15an order under subsection (4) or (5) may require the payment of
compensation to that person.

(10) The amount of compensation to be paid by virtue of subsection (9) is the
amount the magistrates’ court, the sheriff or the relevant court (as the
case may be) thinks reasonable, having regard to the loss suffered and
20any other relevant circumstances.

(11) Compensation to be paid by virtue of subsection (9) is to be paid in the
same way that compensation is to be paid under section 303W.

303S Sections 303O and 303R: appeals

(1) Any party to proceedings for an order for the forfeiture of property
25under section 303O may appeal against—

(a) the making of an order under section 303O;

(b) the making of an order under section 303R(5);

(c) a decision not to make an order under section 303O unless the
reason that no order was made is that an order was instead
30made under section 303Q;

(d) a decision not to make an order under section 303R(5).

Paragraphs (c) and (d) do not apply if the application for the order
under section 303O was transferred in accordance with section
303R(1)(a) or (b).

(2) 35An appeal under subsection (1) lies—

(a) in relation to England and Wales, to the Crown Court;

(b) in relation to Scotland, to the Sheriff Appeal Court;

(c) in relation to Northern Ireland, to a county court.

(3) An appeal under subsection (1) must be made before the end of the
40period of 30 days starting with the day on which the court makes the
order or decision.

(4) The court hearing the appeal may make any order it thinks appropriate.

(5) If the court upholds an appeal against an order forfeiting property, it
may order the release of the whole or any part of the property.

303T Realisation of forfeited property

(1) If property is forfeited under section 303O or 303R, a relevant officer
must realise the property or make arrangements for its realisation.

(2) But the property is not to be realised—

(a) 5before the end of the period within which an appeal may be
made (whether under section 303S or otherwise), or

(b) if an appeal is made within that period, before the appeal is
determined or otherwise disposed of.

(3) The realisation of property under subsection (1) must be carried out, so
10far as practicable, in the manner best calculated to maximise the
amount obtained for the property.

303U Proceeds of realisation

(1) The proceeds of property realised under section 303T must be applied
as follows—

(a) 15first, they must be applied in making any payment required to
be made by virtue of section 303R(7);

(b) second, they must be applied in payment or reimbursement of
any reasonable costs incurred in storing or insuring the
property whilst detained under this Part and in realising the
20property;

(c) third, they must be paid—

(i) if the property was forfeited by a magistrates’ court or
the High Court, into the Consolidated Fund;

(ii) if the property was forfeited by the sheriff or the Court
25of Session, into the Scottish Consolidated Fund.

(2) If what is realised under section 303T represents part only of an item of
property seized under section 303J and detained under this Chapter,
the reference in subsection (1)(b) to costs incurred in storing or insuring
the property is to be read as a reference to costs incurred in storing or
30insuring the whole of the item of property.

Supplementary

303V Victims and other owners

(1) A person who claims that any property detained under this Chapter, or
any part of it, belongs to him or her may apply for the property or part
35to be released.

(2) An application under subsection (1) is to be made—

(a) in England and Wales or Northern Ireland, to a magistrates’
court;

(b) in Scotland, to the sheriff.

(3) 40The application may be made in the course of proceedings under
section 303L or 303O or at any other time.

(4) The court or sheriff may order the property to which the application
relates to be released to the applicant if it appears to the court or sheriff
that—

(a) the applicant was deprived of the property to which the
application relates, or of property which it represents, by
unlawful conduct,

(b) the property the applicant was deprived of was not,
5immediately before the applicant was deprived of it,
recoverable property, and

(c) the property belongs to the applicant.

(5) If subsection (6) applies, the court or sheriff may order the property to
which the application relates to be released to the applicant or to the
10person from whom it was seized.

(6) This subsection applies where—

(a) the applicant is not the person from whom the property to
which the application relates was seized,

(b) it appears to the court or sheriff that that property belongs to the
15applicant,

(c) the court or sheriff is satisfied that the release condition is met
in relation to that property, and

(d) no objection to the making of an order under subsection (5) has
been made by the person from whom that property was seized.

(7) 20The release condition is met—

(a) in relation to property detained under section 303K or 303L, if
the conditions in section 303K or (as the case may be) 303L for
the detention of the property are no longer met, and

(b) in relation to property detained under section 303O, if the court
25or sheriff decides not to make an order under that section in
relation to the property.

303W Compensation

(1) If no order under section 303O, 303Q or 303R is made in respect of any
property detained under this Chapter, the person to whom the
30property belongs or from whom it was seized may make an application
for compensation.

(2) An application under subsection (1) is to be made—

(a) in England and Wales or Northern Ireland, to a magistrates’
court;

(b) 35in Scotland, to the sheriff.

(3) If the court or sheriff is satisfied that the applicant has suffered loss as a result
of the detention of the property and that the circumstances are exceptional, the
court or sheriff may order compensation to be paid to the applicant.

(4) The amount of compensation to be paid is the amount the court or sheriff thinks
40reasonable, having regard to the loss suffered and any other relevant
circumstances.

(5) If the property was seized by an officer of Revenue and Customs, the
compensation is to be paid by the Commissioners for Her Majesty’s Revenue
and Customs.

(6) 45If the property was seized by a constable, the compensation is to be paid as
follows—

(a) in the case of a constable of a police force in England and Wales, it is
to be paid out of the police fund from which the expenses of the police
force are met;

(b) in the case of a constable of the Police Service of Scotland, it is to be
5paid by the Scottish Police Authority;

(c) in the case of a police officer within the meaning of the Police
(Northern Ireland) Act 2000, it is to be paid out of money provided by
the Chief Constable of the Police Service of Northern Ireland.

(7) If the property was seized by an SFO officer, the compensation is to be paid by
10the Director of the Serious Fraud Office.

(8) If the property was seized by an accredited financial investigator who was not
an officer of Revenue and Customs, a constable or an SFO officer, the
compensation is to be paid as follows—

(a) in the case of an investigator who was—

(i) 15a member of the civilian staff of a police force (including the
metropolitan police force), within the meaning of Part 1 of the
Police Reform and Social Responsibility Act 2011, or

(ii) a member of staff of the City of London police force,

it is to be paid out of the police fund from which the expenses of the
20police force are met,

(b) in the case of an investigator who was a member of staff of the Police
Service of Northern Ireland, it is to be paid out of money provided by
the Chief Constable of the Police Service of Northern Ireland,

(c) in the case of an investigator who was a member of staff of a
25department of the Government of the United Kingdom, it is to be paid
by the Minister of the Crown in charge of the department or by the
department,

(d) in the case of an investigator who was a member of staff of a Northern
Ireland department, it is to be paid by the department,

(e) 30in the case of an investigator who was exercising a function of the
Welsh Revenue Authority, it is to be paid by the Welsh Revenue
Authority, and

(f) in any other case, it is to be paid by the employer of the investigator.

(9) The Secretary of State may by regulations amend subsection (8).

(10) 35The power in subsection (9) is exercisable by the Department of Justice
(and not by the Secretary of State) so far as it may be used to make
provision which could be made by an Act of the Northern Ireland
Assembly without the consent of the Secretary of State (see sections 6 to
8 of the Northern Ireland Act 1998.)

(11) 40If an order under section 303O, 303Q or 303R is made in respect only of
a part of any property detained under this Chapter, this section has
effect in relation to the other part.

303X Powers for prosecutors to appear in proceedings

(1) The Director of Public Prosecutions or the Director of Public
45Prosecutions for Northern Ireland may appear for a constable or an
accredited financial investigator in proceedings under this Chapter if
the Director—

(a) is asked by, or on behalf of, a constable or (as the case may be)
an accredited financial investigator to do so, and

(b) considers it appropriate to do so.

(2) The Director of Public Prosecutions may appear for the Commissioners
5for Her Majesty’s Revenue and Customs or an officer of Revenue and
Customs in proceedings under this Chapter if the Director—

(a) is asked by, or on behalf of, the Commissioners for Her
Majesty’s Revenue and Customs or (as the case may be) an
officer of Revenue and Customs to do so, and

(b) 10considers it appropriate to do so.

(3) The Directors may charge fees for the provision of services under this
section.

(4) The references in subsection (1) to an accredited financial investigator
do not include an accredited financial investigator who is an officer of
15Revenue and Customs but the references in subsection (2) to an officer
of Revenue and Customs do include an accredited financial
investigator who is an officer of Revenue and Customs.

303Y “The minimum value”

(1) For the purposes of this Chapter, “the minimum value” is £1,000.

(2) 20The Secretary of State may by regulations amend the amount for the
time being specified in subsection (1).

(3) The Secretary of State must consult the Scottish Ministers and the
Department of Justice before making regulations under subsection (2).

303Z Financial investigators

25Where an accredited financial investigator of a particular description—

(a) applies for an order under section 303L,

(b) applies for forfeiture under section 303O, or

(c) brings an appeal under, or relating to, this Chapter,

any subsequent step in the application or appeal, or any further
30application or appeal relating to the same matter, may be taken, made
or brought by a different accredited financial investigator of the same
description.”

13 Forfeiture of money held in bank and building society accounts

In Part 5 of the Proceeds of Crime Act 2002 (civil recovery of the proceeds etc

of unlawful conduct), after section 303Z (inserted by section 12 above) insert—

““Chapter 3B

Forfeiture of money held in bank and building society accounts

Freezing of bank and building society accounts

303Z1 Application for account freezing order

(1) This section applies if an enforcement officer has reasonable grounds
5for suspecting that money held in an account maintained with a bank
or building society—

(a) is recoverable property, or

(b) is intended by any person for use in unlawful conduct.

(2) Where this section applies (but subject to section 303Z2) the
10enforcement officer may apply to the relevant court for an account
freezing order in relation to the account in which the money is held.

(3) For the purposes of this Chapter—

(a) an account freezing order is an order that, subject to any
exclusions (see section 303Z5), prohibits each person by or for
15whom the account to which the order applies is operated from
making withdrawals or payments from the account;

(b) an account is operated by or for a person if the person is an
account holder or a signatory or identified as a beneficiary in
relation to the account.

(4) 20An application for an account freezing order may be made without
notice if the circumstances of the case are such that notice of the
application would prejudice the taking of any steps under this Chapter
to forfeit money that is recoverable property or intended by any person
for use in unlawful conduct.

(5) 25The money referred to in subsection (1) may be all or part of the credit
balance of the account.

(6) In this Chapter—

• “bank” has the meaning given by section 303Z7;

• “building society” has the same meaning as in the Building
  30Societies Act 1986;

• “enforcement officer” means—

  (a)

  an officer of Revenue and Customs,

  (b)

  a constable,

  (c)

  an SFO officer, or

  (d)

  35an accredited financial investigator who falls within a
  description specified in an order made for the purposes
  of this Chapter by the Secretary of State under section
  453;

• “the minimum amount” has the meaning given by section 303Z8;

• 40“relevant court”—

  (a)

  in England and Wales and Northern Ireland, means a
  magistrates’ court, and

  Criminal Finances BillPage 59

  (b)

  in Scotland, means the sheriff.

303Z2 Restrictions on making of application under section 303Z1

(1) The power to apply for an account freezing order is not exercisable if
the money in relation to which the enforcement officer’s suspicion
5exists is less in amount than the minimum amount.

(2) An enforcement officer may not apply for an account freezing order
unless the officer is a senior officer or is authorised to do so by a senior
officer.

(3) The power to apply for an account freezing order is exercisable by an
10officer of Revenue and Customs only if the officer is acting in exercise
of a function relating to a matter other than an excluded matter.

(4) But the power may be exercised by the officer in reliance on a suspicion
that relates to an excluded matter.

(5) The references in subsections (3) and (4) to an excluded matter are to a
15matter specified in section 54(4)(b) of, or in any of paragraphs 3, 5, 7, 10,
12 and 14 to 30 of Schedule 1 to, the Commissioners for Revenue and
Customs Act 2005.

(6) The power to apply for an account freezing order is not exercisable by
an SFO officer, or by an accredited financial investigator, in relation to
20an account maintained with a branch of a bank or building society that
is in Scotland.

(7) For the purposes of this Chapter, a “senior officer” is —

(a) an officer of Revenue and Customs of a rank designated by the
Commissioners for Her Majesty’s Revenue and Customs as
25equivalent to that of a senior police officer,

(b) a senior police officer,

(c) the Director of the Serious Fraud Office, or

(d) an accredited financial investigator who falls within a
description specified in an order made for the purposes of this
30Chapter by the Secretary of State under section 453.

(8) In subsection (7), a “senior police officer” means a police officer of at
least the rank of inspector.

303Z3 Making of account freezing order

(1) This section applies where an application for an account freezing order
35is made under section 303Z1 in relation to an account.

(2) The relevant court may make the order if satisfied that there are
reasonable grounds for suspecting that money held in the account
(whether all or part of the credit balance of the account)—

(a) is recoverable property, or

(b) 40is intended by any person for use in unlawful conduct.

(3) An account freezing order ceases to have effect at the end of the period
specified in the order (which may be varied under section 303Z4)
unless it ceases to have effect at an earlier or later time in accordance
with the provision made by sections 303Z9(6)(c), 303Z11(2) to (7),
45303Z14(6) to (8) and 303Z15.