Criminal Finances Bill (HC Bill 75)

Criminal Finances BillPage 60

(4) The period specified by the relevant court for the purposes of
subsection (3) (whether when the order is first made or on a variation
under section 303Z4) may not exceed the period of 2 years, starting
with the day on which the account freezing order is (or was) made.

(5) 5An account freezing order must provide for notice to be given to
persons affected by the order.

303Z4 Variation and setting aside of account freezing order

(1) The relevant court may at any time vary or set aside an account freezing
order on an application made by—

(a) 10an enforcement officer, or

(b) any person affected by the order.

(2) But an enforcement officer may not make an application under
subsection (1) unless the officer is a senior officer or is authorised to do
so by a senior officer.

(3) 15Before varying or setting aside an account freezing order the court must
(as well as giving the parties to the proceedings an opportunity to be
heard) give such an opportunity to any person who may be affected by
its decision.

(4) In relation to Scotland, the references in this section to setting aside an
20order are to be read as references to recalling it.

303Z5 Exclusions

(1) The power to vary an account freezing order includes (amongst other
things) power to make exclusions from the prohibition on making
withdrawals or payments from the account to which the order applies.

(2) 25Exclusions from the prohibition may also be made when the order is
made.

(3) An exclusion may (amongst other things) make provision for the
purpose of enabling a person by or for whom the account is operated—

(a) to meet the person’s reasonable living expenses, or

(b) 30to carry on any trade, business, profession or occupation.

(4) An exclusion may be made subject to conditions.

(5) Where a magistrates’ court exercises the power to make an exclusion
for the purpose of enabling a person to meet legal expenses that the
person has incurred, or may incur, in respect of proceedings under this
35Part, it must ensure that the exclusion—

(a) is limited to reasonable legal expenses that the person has
reasonably incurred or that the person reasonably incurs,

(b) specifies the total amount that may be released for legal
expenses in pursuance of the exclusion, and

(c) 40is made subject to the same conditions as would be the required
conditions (see section 286A) if the order had been made under
section 245A (in addition to any conditions imposed under
subsection (4)).

Criminal Finances BillPage 61

(6) A magistrates’ court, in deciding whether to make an exclusion for the
purpose of enabling a person to meet legal expenses in respect of
proceedings under this Part—

(a) must have regard to the desirability of the person being
5represented in any proceedings under this Part in which the
person is a participant, and

(b) must disregard the possibility that legal representation of the
person in any such proceedings might, were an exclusion not
made—

(i) 10be made available under arrangements made for the
purposes of Part 1 of the Legal Aid, Sentencing and
Punishment of Offenders Act 2012, or

(ii) be funded by the Northern Ireland Legal Services
Commission.

(7) 15The sheriff’s power to make exclusions may not be exercised for the
purpose of enabling any person to meet any legal expenses in respect
of proceedings under this Part.

(8) The power to make exclusions must, subject to subsection (6), be
exercised with a view to ensuring, so far as practicable, that there is not
20undue prejudice to 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.

303Z6 Restriction on proceedings and remedies

(1) If a court in which proceedings are pending in respect of an account
25maintained with a bank or building society is satisfied that an account
freezing order has been applied for or made in respect of the account, it
may either stay the proceedings or allow them to continue on any terms
it thinks fit.

(2) Before exercising the power conferred by subsection (1), the court must
30(as well as giving the parties to any of the proceedings concerned an
opportunity to be heard) give such an opportunity to any person who
may be affected by the court’s decision.

(3) In relation to Scotland, the reference in subsection (1) to staying the
proceedings is to be read as a reference to sisting the proceedings.

303Z7 35“Bank”

(1) “Bank” means an authorised deposit taker, other than a building
society, that has its head office or a branch in the United Kingdom.

(2) In subsection (1), “authorised deposit taker” means—

(a) a person who has permission under Part 4A of the Financial
40Services and Markets Act 2000 to accept deposits;

(b) a person who—

(i) is specified, or is within a class of persons specified, by
an order under section 38 of that Act (exemption
orders), and

(ii) 45accepts deposits;

(c) an EEA firm of the kind mentioned in paragraph 5(b) of
Schedule 3 to that Act that has permission under paragraph 15

Criminal Finances BillPage 62

of that Schedule (as a result of qualifying for authorisation
under paragraph 12(1) of that Schedule) to accept deposits.

(a)(a)a person who has permission under Part 4A of the Financial
Services and Markets Act 2000 to accept deposits;

(b) 5a person who—

(i) is specified, or is within a class of persons specified, by
an order under section 38 of that Act (exemption
orders), and

(ii) accepts deposits;

(c) 10an EEA firm of the kind mentioned in paragraph 5(b) of
Schedule 3 to that Act that has permission under paragraph 15

Criminal Finances BillPage 63

of that Schedule (as a result of qualifying for authorisation
under paragraph 12(1) of that Schedule) to accept deposits.

(3) A reference in subsection (2) to a person or firm with permission to
accept deposits does not include a person or firm with permission to do
5so only for the purposes of, or in the course of, an activity other than
accepting deposits.

303Z8 “The minimum amount”

(1) “The minimum amount” is £1,000.

(2) The Secretary of State may by regulations amend the amount for the
10time 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).

(4) For the purposes of this Chapter the amount of any money held in an
account maintained with a bank or building society in a currency other
15than sterling must be taken to be its sterling equivalent, calculated in
accordance with the prevailing rate of exchange.

Account forfeiture notices (England and Wales and Northern Ireland)
303Z9 Account forfeiture notice

(1) This section applies while an account freezing order made by a
20magistrates’ court has effect.

In this section the account to which the order applies is “the frozen
account”.

(2) A senior officer may give a notice for the purpose of forfeiting money
held in the frozen account (whether all or part of the credit balance of
25the account) if satisfied that the money—

(a) is recoverable property, or

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

(3) A notice given under subsection (2) is referred to in this Chapter as an
account forfeiture notice.

(4) 30An account forfeiture notice must—

(a) state the amount of money held in the frozen account which it
is proposed be forfeited,

(b) confirm that the senior officer is satisfied as mentioned in
subsection (2),

(c) 35specify a period for objecting to the proposed forfeiture and an
address to which any objections must be sent, and

(d) explain that the money will be forfeited unless an objection is
received at that address within the period for objecting.

(5) The period for objecting must be at least 30 days starting with the day
40after the notice is given.

(6) If no objection is made within the period for objecting, and the notice
has not lapsed under section 303Z11

(a) the amount of money stated in the notice is forfeited (subject to
section 303Z12),

Criminal Finances BillPage 64

(b) the bank or building society with which the frozen account is
maintained must transfer that amount of money into an
interest-bearing account nominated by an enforcement officer,
and

(c) 5immediately after the transfer has been made, the account
freezing order made in relation to the frozen account ceases to
have effect.

(7) An objection may be made by anyone (whether a recipient of the notice
or not).

(8) 10An objection means a written objection sent to the address specified in
the notice; and an objection is made when it is received at the address.

(9) An objection does not prevent forfeiture of the money held in the frozen
account under section 303Z14.

303Z10 Giving of account forfeiture notice

(1) 15The Secretary of State must make regulations about how an account
forfeiture notice is to be given.

(2) The regulations may (amongst other things) provide—

(a) for an account forfeiture notice to be given to such person or
persons, and in such manner, as may be prescribed;

(b) 20for circumstances in which, and the time at which, an account
forfeiture notice is to be treated as having been given.

(3) The regulations must ensure that where an account forfeiture notice is
given it is, if possible, given to every person to whom notice of the
account freezing order was given.

303Z11 25 Lapse of account forfeiture notice

(1) An account forfeiture notice lapses if—

(a) an objection is made within the period for objecting specified in
the notice under section 303Z9(4)(c),

(b) an application is made under section 303Z14 for the forfeiture of
30money held in the frozen account, or

(c) an order is made under section 303Z4 setting aside the relevant
account freezing order.

(2) If an account forfeiture notice lapses under subsection (1)(a), the
relevant account freezing order ceases to have effect at the end of the
35period of 48 hours starting with the making of the objection (“the 48-
hour period”).

This is subject to subsections (3) and (7).

(3) If within the 48-hour period an application is made—

(a) for a variation of the relevant account freezing order under
40section 303Z4 so as to extend the period specified in the order,
or

(b) for forfeiture of money held in the frozen account under section
303Z14,

the order continues to have effect until the relevant time (and then
45ceases to have effect).

Criminal Finances BillPage 65

(4) In the case of an application of the kind mentioned in subsection (3)(a),
the relevant time means—

(a) if an extension is granted, the time determined in accordance
with section 303Z3(3), or

(b) 5if an extension is not granted, the time when the application is
determined or otherwise disposed of.

(5) In the case of an application of the kind mentioned in subsection (3)(b),
the relevant time is the time determined in accordance with section
303Z14(6).

(6) 10If within the 48-hour period it is decided that no application of the kind
mentioned in subsection (3)(a) or (b) is to be made, an enforcement
officer must, as soon as possible, notify the bank or building society
with which the frozen account is maintained of that decision.

(7) If the bank or building society is notified in accordance with subsection
15(6) before the expiry of the 48-hour period, the relevant account
freezing order ceases to have effect on the bank or building society
being so notified.

(8) In relation to an account forfeiture notice—

(a) “the frozen account” is the account in which the money to which
20the account forfeiture notice relates is held;

(b) “the relevant account freezing order” is the account freezing
order made in relation to the frozen account.

(9) In calculating a period of 48 hours for the purposes of this section no
account is to be taken of—

(a) 25any Saturday or Sunday,

(b) Christmas Day,

(c) Good Friday, or

(d) any day that is a bank holiday under the Banking and Financial
Dealings Act 1971 in the part of the United Kingdom in which
30the account freezing order was made.

303Z12 Application to set aside forfeiture

(1) A person aggrieved by the forfeiture of money in pursuance of section
303Z9(6)(a) may apply to a magistrates’ court for an order setting aside
the forfeiture of the money or any part of it.

(2) 35The application must be made before the end of the period of 30 days
starting with the day on which the period for objecting ended (“the 30-
day period”).

(3) But the court may give permission for an application to be made after
the 30-day period has ended if it thinks that there are exceptional
40circumstances to explain why the applicant—

(a) failed to object to the forfeiture within the period for objecting,
and

(b) failed to make an application within the 30-day period.

(4) On an application under this section the court must consider whether
45the money to which the application relates could be forfeited under
section 303Z14 (ignoring the forfeiture mentioned in subsection (1)).

Criminal Finances BillPage 66

(5) If the court is satisfied that the money to which the application relates
or any part of it could not be forfeited under that section it must set
aside the forfeiture of that money or part.

(6) Where the court sets aside the forfeiture of any money—

(a) 5it must order the release of that money, and

(b) the money is to be treated as never having been forfeited.

303Z13 Application of money forfeited under account forfeiture notice

(1) Money forfeited in pursuance of section 303Z9(6)(a), and any interest
accrued on it whilst in the account referred to in section 303Z9(6)(b), is
10to be paid into the Consolidated Fund.

(2) But it is not to be paid in—

(a) before the end of the period within which an application under
section 303Z12 may be made (ignoring the possibility of an
application by virtue of section 303Z12(3)), or

(b) 15if an application is made within that period, before the
application is determined or otherwise disposed of.

Forfeiture orders
303Z14 Forfeiture order

(1) This section applies while an account freezing order has effect.

20In this section the account to which the account freezing order applies
is “the frozen account”.

(2) An application for the forfeiture of money held in the frozen account
(whether all or part of the credit balance of the account) may be made—

(a) to a magistrates’ court by a person specified in subsection (3), or

(b) 25to the sheriff by the Scottish Ministers.

(3) The persons referred to in subsection (2)(a) are—

(a) the Commissioners for Her Majesty’s Revenue and Customs,

(b) a constable,

(c) an SFO officer, or

(d) 30an 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.

(4) The court or sheriff may order the forfeiture of the money or any part
of it if satisfied that the money or part—

(a) 35is recoverable property, or

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

(5) But in the case of recoverable property which belongs to joint tenants,
one of whom is an excepted joint owner, an order by a magistrates’
court may not apply to so much of it as the court thinks is attributable
40to the excepted joint owner’s share.

(6) Where an application is made under subsection (2), the account
freezing order is to continue to have effect until the time referred to in
subsection (7)(b) or (8).

But subsections (7)(b) and (8) are subject to section 303Z15.

Criminal Finances BillPage 67

(7) Where money held in a frozen account is ordered to be forfeited under
subsection (4)

(a) the bank or building society with which the frozen account is
maintained must transfer that amount of money into an
5interest-bearing account nominated by an enforcement officer,
and

(b) immediately after the transfer has been made the account
freezing order made in relation to the frozen account ceases to
have effect.

(8) 10Where, other than by the making of an order under subsection (4), an
application under subsection (2) is determined or otherwise disposed
of, the account freezing order ceases to have effect immediately after
that determination or other disposal.

303Z15 Continuation of account freezing order pending appeal

(1) 15This section applies where, on an application under subsection (2) of
section 303Z14 in relation to an account to which an account freezing
order applies, the court or sheriff decides—

(a) to make an order under subsection (4) of that section in relation
to part only of the money to which the application related, or

(b) 20not to make an order under subsection (4) of that section.

(2) The person who made the application under section 303Z14(2) may
apply without notice to the court or sheriff that made the decision
referred to in subsection (1)(a) or (b) for an order that the account
freezing order is to continue to have effect.

(3) 25Where the court or sheriff makes an order under subsection (2) the
account freezing order is to continue to have effect until—

(a) the end of the period of 48 hours starting with the making of the
order under subsection (2), or

(b) if within that period of 48 hours an appeal is brought under
30section 303Z16 against the decision referred to in subsection
(1)(a) or (b), the time when the appeal is determined or
otherwise disposed of.

(4) Subsection (9) of section 303Z11 applies for the purposes of subsection
(3) as it applies for the purposes of that section.

303Z16 35 Appeal against decision under section 303Z14

(1) Any party to proceedings for an order for the forfeiture of money under
section 303Z14 who is aggrieved by an order under that section or by
the decision of the court not to make such an order may appeal—

(a) from an order or decision of a magistrates’ court in England and
40Wales, to the Crown Court;

(b) from an order or decision of the sheriff, to the Sheriff Appeal
Court;

(c) from an order or decision of a magistrates’ court in Northern
Ireland, to a county court.

(2) 45An appeal under subsection (1) must be made before the end of the
period of 30 days starting with the day on which the court makes the
order or decision.

Criminal Finances BillPage 68

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

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

303Z17 Application of money forfeited under account forfeiture order

(1) 5Money forfeited by an order under section 303Z14, and any interest
accrued on it whilst in the account referred to in subsection (7)(a) of that
section—

(a) if forfeited by a magistrates’ court, is to be paid into the
Consolidated Fund, and

(b) 10if forfeited by the sheriff, is to be paid into the Scottish
Consolidated Fund.

(2) But it is not to be paid in—

(a) before the end of the period within which an appeal under
section 303Z16 may be made, or

(b) 15if a person appeals under that section, before the appeal is
determined or otherwise disposed of.

Supplementary
303Z18 Compensation

(1) This section applies if—

(a) 20an account freezing order is made, and

(b) none of the money held in the account to which the order
applies is forfeited in pursuance of an account forfeiture notice
or by an order under section 303Z14.

(2) Where this section applies a person by or for whom the account to
25which the account freezing order applies is operated may make an
application to the relevant court for compensation.

(3) If the relevant court is satisfied that the applicant has suffered loss as a result
of the making of the account freezing order and that the circumstances are
exceptional, the relevant court may order compensation to be paid to the
30applicant.

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

(5) If the account freezing order was applied for by an officer of Revenue and
35Customs, the compensation is to be paid by the Commissioners for Her
Majesty’s Revenue and Customs.

(6) If the account freezing order was applied for 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
40to 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
paid by the Scottish Police Authority;

Criminal Finances BillPage 69

(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 account freezing order was applied for by an SFO officer, the
5compensation is to be paid by the Director of the Serious Fraud Office.

(8) If the account freezing order was applied for 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) 10a 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
15police 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
20department 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) 25in 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) 30The 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.)

303Z19 35 Powers for prosecutors to appear in proceedings

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

(a) 40is 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
for Her Majesty’s Revenue and Customs or an officer of Revenue and
45Customs 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