Session 2012 - 13
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Other Bills before Parliament

Crime and Courts Bill [HL]


 
 

15

 
 

“Civil recovery of the proceeds etc of unlawful conduct

 

(1)    

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

 

of unlawful conduct) is amended as follows.

 

(2)    

After section 282 insert—

 

“Scope of powers

 

282A  

Scope of powers

 

(1)    

An order under this Chapter may be made by the High Court in

 

England and Wales or the Court of Session—

 

(a)    

in respect of property wherever situated, and

 

(b)    

in respect of a person wherever domiciled, resident or

 

present,

 

    

subject to subsection (2).

 

(2)    

Such an order may not be made by the High Court in England and

 

Wales or the Court of Session in respect of—

 

(a)    

property that is outside the United Kingdom, or

 

(b)    

property that is in the United Kingdom but outside the

 

relevant part of the United Kingdom,

 

    

unless there is or has been a connection between the case and the

 

relevant part of the United Kingdom.

 

(3)    

The circumstances in which there is or has been such a connection

 

include those described in Schedule 7A.

 

(4)    

“The relevant part of the United Kingdom” means—

 

(a)    

in relation to an order made by the High Court in England

 

and Wales, England and Wales, and

 

(b)    

in relation to an order made by the Court of Session,

 

Scotland.”

 

(3)    

After Schedule 7 insert—

 

“Schedule 7A

 

Section 282A

 

Connection with relevant part of United Kingdom

 

Unlawful conduct

 

1          

There is a connection where the unlawful conduct occurred

 

entirely or partly in the relevant part of the United Kingdom.

 

Property

 

2          

There has been a connection where the property in question has

 

been in the relevant part of the United Kingdom, but only if it

 

was recoverable property in relation to the unlawful conduct for

 

some or all of the time it was there.

 

3          

There is a connection where there is other property in the

 

relevant part of the United Kingdom that is recoverable property

 

in relation to the unlawful conduct.

 
 

 
 

16

 
 

4          

There has been a connection where, at any time, there has been

 

other property in the relevant part of the United Kingdom that,

 

at the time, was recoverable property in relation to the unlawful

 

conduct.

 

Person

 

5    (1)  

There is or has been a connection where a person described in

 

sub-paragraph (2)—

 

(a)    

is linked to the relevant part of the United Kingdom,

 

(b)    

was linked to that part of the United Kingdom at a time

 

when the unlawful conduct, or some of the unlawful

 

conduct, was taking place, or

 

(c)    

has been linked to that part of the United Kingdom at any

 

time since that conduct took place.

 

      (2)  

Those persons are—

 

(a)    

a person whose conduct was, or was part of, the unlawful

 

conduct;

 

(b)    

a person who was deprived of property by the unlawful

 

conduct;

 

(c)    

a person who holds the property in question;

 

(d)    

a person who has held the property in question, but only

 

if it was recoverable property in relation to the unlawful

 

conduct at the time;

 

(e)    

a person who holds other property that is recoverable

 

property in relation to the unlawful conduct;

 

(f)    

a person who, at any time, has held other property that

 

was recoverable property in relation to the unlawful

 

conduct at the time.

 

      (3)  

A person is linked to the relevant part of the United Kingdom if

 

the person is—

 

(a)    

a British citizen, a British overseas territories citizen, a

 

British National (Overseas) or a British Overseas citizen,

 

(b)    

a person who, under the British Nationality Act 1981, is a

 

British subject,

 

(c)    

a British protected person within the meaning of that Act,

 

(d)    

a body incorporated or constituted under the law of any

 

part of the United Kingdom, or

 

(e)    

a person domiciled, resident or present in the relevant

 

part of the United Kingdom.

 

Property held on trust

 

6    (1)  

There is a connection where the property in question is property

 

held on trust, or an interest in property held on trust, and—

 

(a)    

the trust arises under the law of any part of the United

 

Kingdom,

 

(b)    

the trust is entirely or partly governed by the law of any

 

part of the United Kingdom,

 
 

 
 

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(c)    

one or more of the trustees is linked to the relevant part of

 

the United Kingdom, or

 

(d)    

one or more of the beneficiaries of the trust is linked to the

 

relevant part of the United Kingdom.

 

      (2)  

A person is linked to the relevant part of the United Kingdom if

 

the person falls within paragraph 5(3).

 

      (3)  

“Beneficiaries” includes beneficiaries with a contingent interest

 

in the trust property and potential beneficiaries.

 

Interpretation

 

7          

“The relevant part of the United Kingdom” has the meaning

 

given in section 282A(4).

 

8          

“The unlawful conduct” means—

 

(a)    

in a case in which the property in question was obtained

 

through unlawful conduct, that conduct,

 

(b)    

in a case in which the property in question represents

 

property obtained through unlawful conduct, that

 

conduct, or

 

(c)    

in a case in which it is shown that the property in question

 

was obtained through unlawful conduct of one of a

 

number of kinds or represents property so obtained (see

 

section 242(2)(b)), one or more of those kinds of conduct.”

 

(4)    

Omit section 286 (scope of powers: Scotland).

 

(5)    

In section 316 (general interpretation), after subsection (8A) insert—

 

“(8B)    

An enforcement authority in relation to England and Wales or

 

Scotland may take proceedings there for an order under Chapter 2

 

of this Part in respect of any property or person, whether or not the

 

property or person is (or is domiciled, resident or present) in that

 

part of the United Kingdom.”

 

(6)    

In Schedule (Proceeds of crime: civil recovery of the proceeds etc of unlawful

 

conduct) (proceeds of crime: civil recovery of the proceeds etc of unlawful

 

conduct)—

 

(a)    

Part 1 makes provision about the enforcement of interim orders in

 

the United Kingdom, and

 

(b)    

Part 2 makes provision about enforcement where property or

 

evidence is outside the United Kingdom.

 

(7)    

The amendments made by this section and Part 2 of Schedule (Proceeds of

 

crime: civil recovery of the proceeds etc of unlawful conduct) are deemed always

 

to have had effect.

 

(8)    

The amendments made by this section and Schedule (Proceeds of crime: civil

 

recovery of the proceeds etc of unlawful conduct) do not affect the extent to

 

which provisions of the Proceeds of Crime Act 2002 (other than Chapter 2

 

of Part 5), or of any other enactment, apply in respect of persons or

 

property outside the United Kingdom or outside a particular part of the

 

United Kingdom.”

23

Insert the following new Clause—

 
 

 
 

18

 
 

“Investigations

 

In Schedule (Proceeds of crime: investigations) (proceeds of crime:

 

investigations)—

 

(a)    

Part 1 makes provision about orders and warrants sought under

 

Part 8 of the Proceeds of Crime Act 2002 in connection with civil

 

recovery investigations,

 

(b)    

Part 2 makes provision about obtaining evidence overseas, and

 

(c)    

Part 3 makes consequential amendments relating to immigration

 

officers and to the National Crime Agency.”

24

Insert the following new Clause—

 

“Extradition

 

Schedule (Extradition) (extradition) has effect.”

After Clause 35

25

Insert the following new Clause—

 

“Deportation on national security grounds: appeals

 

(1)    

Section 97A of the Nationality, Immigration and Asylum Act 2002

 

(deportation on national security grounds: appeal rights) is amended as

 

follows.

 

(2)    

After subsection (1) insert—

 

“(1A)    

This section also applies where the Secretary of State certifies, in the

 

case of a person in respect of whom a deportation order has been

 

made which states that it is made in accordance with section 32(5)

 

of the UK Borders Act 2007, that the person’s removal from the

 

United Kingdom would be in the interests of national security.”

 

(3)    

For subsection (2)(c) substitute—

 

“(c)    

section 2(5) of the Special Immigration Appeals

 

Commission Act 1997 (whether appeals brought against

 

decisions certified under section 97 may be brought from

 

within the United Kingdom) does not apply, but see instead

 

the following provisions of this section.”

 

(4)    

After subsection (2) insert—

 

“(2A)    

The person while in the United Kingdom may not bring or continue

 

an appeal under section 2 of the Special Immigration Appeals

 

Commission Act 1997—

 

(a)    

against the decision to make the deportation order, or

 

(b)    

against any refusal to revoke the deportation order,

 

    

unless the person has made a human rights claim while in the

 

United Kingdom.

 

(2B)    

Subsection (2A) does not allow the person while in the United

 

Kingdom to bring or continue an appeal if the Secretary of State

 

certifies that removal of the person—

 
 

 
 

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(a)    

to the country or territory to which the person is proposed

 

to be removed, and

 

(b)    

despite the appeals process not having been begun or not

 

having been exhausted,

 

    

would not breach the United Kingdom’s obligations under the

 

Human Rights Convention.

 

(2C)    

The grounds upon which a certificate may be given under

 

subsection (2B) include (in particular)—

 

(a)    

that the person would not, before the appeals process is

 

exhausted, face a real risk of serious irreversible harm if

 

removed to the country or territory to which the person is

 

proposed to be removed;

 

(b)    

that the whole or part of any human rights claim made by

 

the person is clearly unfounded.

 

(2D)    

Subsection (2A) does not allow the person while in the United

 

Kingdom to bring an appeal on a non-human-rights ground, or to

 

continue an appeal so far as brought on non-human-rights grounds,

 

if the Secretary of State certifies that removal of the person—

 

(a)    

to the country or territory to which the person is proposed

 

to be removed, and

 

(b)    

despite the appeals process, so far as relating to appeal on

 

non-human-rights grounds, not having been begun or not

 

having been exhausted,

 

    

would not breach the United Kingdom’s obligations under the

 

Human Rights Convention.

 

(2E)    

In subsection (2D) “non-human-rights ground” means any ground

 

other than the ground that removal of the person from the United

 

Kingdom in consequence of the decision to make the deportation

 

order would be unlawful under section 6 of the Human Rights Act

 

1998 as being incompatible with a person’s Convention rights.

 

(2F)    

If a certificate in respect of a person is given under subsection (2B),

 

the person may apply to the Special Immigration Appeals

 

Commission to set aside the certificate.

 

(2G)    

If a person makes an application under subsection (2F) then the

 

Commission, in determining whether the certificate should be set

 

aside, must apply the principles that would be applied in judicial

 

review proceedings.

 

(2H)    

The Commission’s determination of a review under subsection (2F)

 

is final.

 

(2J)    

The Commission may direct that a person who has made and not

 

withdrawn an application under subsection (2F) is not to be

 

removed from the United Kingdom at a time when the review has

 

not been finally determined by the Commission.

 

(2K)    

Sections 5 and 6 of the Special Immigration Appeals Commission

 

Act 1997 apply in relation to reviews under subsection (2F) (and to

 

applicants for such reviews) as they apply in relation to appeals

 

under section 2 or 2B of that Act (and to persons bringing such

 

appeals).

 
 

 
 

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(2L)    

Any exercise of power to make rules under section 5 of that Act in

 

relation to reviews under subsection (2F) is to be with a view to

 

securing that proceedings on such reviews are handled

 

expeditiously.”

 

(5)    

In subsection (3) (appeal against certificate under subsection (2)(c)(iii)) for

 

“(2)(c)(iii)” substitute “(2D)”.”

Clause 39

26

Page 41, line 5, leave out “2” and insert “(Modification of NCA functions)”

27

Page 41, line 21, at end insert—

 

“( )    

regulations under section (Restraint orders and legal aid:

 

supplementary);”

28

Page 41, line 27, at end insert—

 

“( )    

an order under paragraph 5 of Schedule (The NCA: Northern

 

Ireland).”

29

Page 41, line 37, at end insert—

 

“( )    

an order under paragraph 1, 2, 3 or 4 of Schedule (The NCA:

 

Northern Ireland);”

30

Page 41, line 37, at end insert—

 

“( )    

an order under Schedule (Proceeds of crime provisions: Northern

 

Ireland).”

Clause 42

31

Page 43, line 13, after “18” insert “to 22, (Enforcement by taking control of goods) and

 

23”

32

Page 43, line 13, after first “to” insert “(Supreme Court chief executive, officers and staff)

 

and”

33

Page 43, line 13, before “28” insert “27 and”

34

Page 43, line 13, leave out “(except section 23(2))”

35

Page 43, line 15, at end insert—

 

“( )    

Subsection (3) does not apply to—

 

(a)    

Part 4A of Schedule 13, or section 18 so far as relating to that Part;

 

(b)    

section 23(2).”

36

Page 43, line 15, at end insert—

 

“( )    

Section (Varying designations of authorities responsible for remanded young

 

persons) comes into force on the day after the day on which this Act is

 

passed.”

37

Page 43, line 16, after “23(2)” insert “, (Making and use of recordings of Supreme Court

 

proceedings)”

38

Page 43, line 17, at end insert—

 
 

 
 

21

 
 

“( )    

Sections (Awards of exemplary damages) to (Awards of aggravated damages)

 

come into force at the end of the period of one year beginning with the day

 

on which a body is established by Royal Charter with the purpose of

 

carrying on activities relating to the recognition of independent regulators

 

of relevant publishers (as defined by section (Meaning of “relevant

 

publisher”)).”

39

Page 43, line 26, at end insert—

 

“( )    

An order which includes provision for the commencement of section

 

(Investigations) or Schedule (Proceeds of crime: investigations) may not be

 

made unless the Secretary of State has consulted the Scottish Ministers.”

40

Page 43, line 27, after “Sections” insert “(Civil recovery of the proceeds etc of unlawful

 

conduct) (except subsection (6)(a)),”

41

Page 43, line 27, after “section” insert “and Part 2 of Schedule (Proceeds of crime: civil

 

recovery of the proceeds etc of unlawful conduct)”

42

Page 43, line 28, at end insert—

 

“( )    

Part 4A of Schedule 13, and section 18 so far as relating to that Part, come

 

into force on the day on which this Act is passed.”

43

Page 43, line 28, at end insert—

 

“( )    

Section 30 comes into force on the day on which this Act is passed.”

44

Page 43, line 28, at end insert—

 

“( )    

Schedule (The NCA: Northern Ireland) comes into force on the day on which

 

this Act is passed.”

45

Page 43, line 28, at end insert—

 

“( )    

Schedule (Proceeds of crime provisions: Northern Ireland) comes into force on

 

the day on which this Act is passed.”

46

Page 43, line 34, at end insert—

 

“( )    

sections (Awards of exemplary damages) to (Other interpretative

 

provisions);”

47

Page 44, line 11, at end insert—

 

“( )    

This section is subject to Schedule (The NCA: Northern Ireland) (the NCA:

 

Northern Ireland).”

48

Page 44, line 11, at end insert—

 

“( )    

This section is subject to Schedule (Proceeds of crime provisions: Northern

 

Ireland) (proceeds of crime provisions: Northern Ireland).”

49

Page 44, line 13, leave out “or 35” and insert “, 35 or (Deportation on national security

 

grounds: appeals)”

50

Page 44, line 24, at end insert—

 

“( )    

The power conferred by section 52(2) of the Civil Jurisdiction and

 

Judgments Act 1982 (power to extend to Channel Islands, Isle of Man and

 

British overseas territories) is exercisable in relation to any amendment of

 

that Act that is made by or under this Act.”

 
 

 
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Revised 20 March 2013