|
| |
| |
(4) The certificate must be signed by or on behalf of the court and | |
must include a statement as to the accuracy of the information | |
given in it. | |
The signature may be an electronic signature. | |
(5) If the restraint order and the certificate are not accompanied by a | 5 |
forfeiture order, but a forfeiture order is subsequently made, it is | |
to be sent to the Secretary of State for forwarding as mentioned in | |
sub-paragraph (1). | |
Overseas freezing orders | |
11D (1) Paragraph 11E applies where an overseas freezing order made by | 10 |
an appropriate court or authority in a participating country is | |
received by the Secretary of State from the court or authority | |
which made or confirmed the order. | |
(2) An overseas freezing order is an order prohibiting dealing with | |
property— | 15 |
(a) which is in the United Kingdom, | |
(b) which the appropriate court or authority considers is likely | |
to be used for the purposes of a listed offence or is the | |
proceeds of the commission of such an offence, and | |
(c) in respect of which an order has been or may be made by a | 20 |
court exercising criminal jurisdiction in the participating | |
country for the forfeiture of the property, | |
and in respect of which the following requirements of this | |
paragraph are met. | |
(3) The action which the appropriate court or authority considered | 25 |
would constitute or, as the case may be, constituted the listed | |
offence is action done as an act of terrorism or for the purposes of | |
terrorism. | |
(4) The order must relate to— | |
(a) criminal proceedings instituted in the participating | 30 |
country, or | |
(b) a criminal investigation being carried on there. | |
(5) The order must be accompanied by a certificate which gives the | |
specified information; but a certificate may be treated as giving | |
any specified information which is not given in it if the Secretary | 35 |
of State has the information in question. | |
(6) The certificate must— | |
(a) be signed by or on behalf of the court or authority which | |
made or confirmed the order, | |
(b) include a statement as to the accuracy of the information | 40 |
given in it, | |
(c) if it is not in English, include a translation of it into English | |
(or, if appropriate, Welsh). | |
The signature may be an electronic signature. | |
(7) The order must be accompanied by an order made by a court | 45 |
exercising criminal jurisdiction in that country for the forfeiture of | |
| |
| |
|
| |
| |
the property, unless the certificate indicates when such an order is | |
expected to be sent. | |
(8) An appropriate court or authority in a participating country in | |
relation to an overseas freezing order is— | |
(a) a court exercising criminal jurisdiction in the country, | 5 |
(b) a prosecuting authority in the country, | |
(c) any other authority in the country which appears to the | |
Secretary of State to have the function of making such | |
orders. | |
(9) References in paragraphs 11E to 11G to an overseas freezing order | 10 |
include its accompanying certificate. | |
Enforcement of overseas freezing orders | |
11E (1) Where this paragraph applies the Secretary of State must send a | |
copy of the overseas freezing order to the High Court and to the | |
Director of Public Prosecutions. | 15 |
(2) The court is to consider the overseas freezing order on its own | |
initiative within a period prescribed by rules of court. | |
(3) Before giving effect to the overseas freezing order, the court must | |
give the Director an opportunity to be heard. | |
(4) The court may decide not to give effect to the overseas freezing | 20 |
order only if, in its opinion, giving effect to it would be | |
incompatible with any of the Convention rights (within the | |
meaning of the Human Rights Act 1998). | |
11F The High Court may postpone giving effect to an overseas | |
freezing order in respect of any property— | 25 |
(a) in order to avoid prejudicing a criminal investigation | |
which is taking place in the United Kingdom, or | |
(b) if, under an order made by a court in criminal proceedings | |
in the United Kingdom, the property may not be dealt | |
with. | 30 |
11G (1) Where the High Court decides to give effect to an overseas | |
freezing order, it must— | |
(a) register the order in that court, | |
(b) provide for notice of the registration to be given to any | |
person affected by it. | 35 |
(2) For the purpose of enforcing an overseas freezing order registered | |
in the High Court, the order is to have effect as if it were an order | |
made by that court. | |
(3) Paragraph 7 applies to an overseas freezing order registered in the | |
High Court as it applies to a restraint order under paragraph 5. | 40 |
(4) The High Court may cancel the registration of the order, or vary | |
the property to which the order applies, on an application by the | |
Director of Public Prosecutions or any other person affected by it, | |
if or to the extent that— | |
(a) the court is of the opinion mentioned in paragraph 11E(4), | 45 |
or | |
| |
| |
|
| |
| |
(b) the court is of the opinion that the order has ceased to have | |
effect in the participating country. | |
(5) Her Majesty may by Order in Council make further provision for | |
the enforcement in England and Wales of registered overseas | |
freezing orders. | 5 |
(6) An Order in Council under this paragraph— | |
(a) may make different provision for different cases, | |
(b) is not to be made unless a draft of it has been laid before | |
and approved by resolution of each House of Parliament. | |
4 In paragraph 14 of that Schedule (enforcement of orders made in designated | 10 |
countries), in sub-paragraph (2), after the second “order” there is inserted | |
“(other than an overseas freezing order within the meaning of paragraph | |
11D)”. | |
5 In Part 2 of that Schedule (forfeiture orders: Scotland), after paragraph 25 | |
there is inserted— | 15 |
“Domestic and overseas freezing orders | |
25A (1) This paragraph has effect for the purposes of paragraphs 25B to | |
25G. | |
(2) The relevant Framework Decision means any Framework | |
Decision of the Council of the European Union which is identified | 20 |
by the Secretary of State by order and is about the execution of | |
orders freezing property or evidence. | |
(3) A listed offence means— | |
(a) an offence described in a prescribed provision of the | |
relevant Framework Decision, or | 25 |
(b) a prescribed offence or an offence of a prescribed | |
description. | |
(4) An order under sub-paragraph (3)(b) which, for the purposes of | |
paragraph 25D, prescribes an offence or a description of offences | |
may require that the conduct which constitutes the offence or | 30 |
offences would, if it occurred in a part of the United Kingdom, | |
constitute an offence in that part. | |
(5) Specified information, in relation to a certificate under paragraph | |
25B or 25D, means— | |
(a) any information required to be given by a prescribed | 35 |
document annexed to the relevant Framework Decision, or | |
(b) any prescribed information. | |
(6) In this paragraph, “prescribed” means prescribed by an order | |
made by the Secretary of State. | |
(7) A participating country means— | 40 |
(a) a country other than the United Kingdom which is a | |
member State on a day appointed for the commencement | |
of Schedule 4 to the Crime (International Co-operation) | |
Act 2003, and | |
(b) any other member State designated by an order made by | 45 |
the Secretary of State. | |
| |
| |
|
| |
| |
(8) “Country” includes territory. | |
(9) Section 14(2)(a) applies for the purposes of determining what are | |
the proceeds of the commission of an offence. | |
Domestic freezing orders: certification | |
25B (1) If any of the property to which an application for a restraint order | 5 |
relates is property in a participating country, the applicant may | |
ask the Court of Session to make a certificate under this paragraph. | |
(2) The Court of Session may make a certificate under this paragraph | |
if— | |
(a) it makes a restraint order in relation to property in the | 10 |
participating country, and | |
(b) it is satisfied that there is a good arguable case that the | |
property is likely to be used for the purposes of a listed | |
offence or is the proceeds of the commission of a listed | |
offence. | 15 |
(3) A certificate under this paragraph is a certificate which— | |
(a) is made for the purposes of the relevant Framework | |
Decision, and | |
(b) gives the specified information. | |
(4) If the Court of Session makes a certificate under this paragraph— | 20 |
(a) the restraint order must provide for notice of the certificate | |
to be given to the person affected by it, and | |
(b) paragraph 19(2) to (4) applies to the certificate as it applies | |
to the restraint order. | |
Sending domestic freezing orders | 25 |
25C (1) If a certificate is made under paragraph 25B, the restraint order | |
and the certificate are to be sent to the Lord Advocate for | |
forwarding to— | |
(a) a court exercising jurisdiction in the place where the | |
property is situated, or | 30 |
(b) any authority recognised by the government of the | |
participating country as the appropriate authority for | |
receiving orders of that kind. | |
(2) The restraint order and the certificate must be accompanied by a | |
forfeiture order, unless the certificate indicates when the court | 35 |
expects a forfeiture order to be sent. | |
(3) The certificate must include a translation of it into an appropriate | |
language of the participating country (if that language is not | |
English). | |
(4) The certificate must be signed by or on behalf of the court and | 40 |
must include a statement as to the accuracy of the information | |
given in it. | |
The signature may be an electronic signature. | |
(5) If the restraint order and the certificate are not accompanied by a | |
forfeiture order, but a forfeiture order is subsequently made, it is | 45 |
| |
| |
|
| |
| |
to be sent to the Lord Advocate for forwarding as mentioned in | |
sub-paragraph (1). | |
Overseas freezing orders | |
25D (1) Paragraph 25E applies where an overseas freezing order made by | |
an appropriate court or authority in a participating country is | 5 |
received by the Secretary of State from the court or authority | |
which made or confirmed the order. | |
(2) An overseas freezing order is an order prohibiting dealing with | |
property— | |
(a) which is in the United Kingdom, | 10 |
(b) which the appropriate court or authority considers is likely | |
to be used for the purposes of a listed offence or is the | |
proceeds of the commission of such an offence, and | |
(c) in respect of which an order has been or may be made by a | |
court exercising criminal jurisdiction in the participating | 15 |
country for the forfeiture of the property, | |
and in respect of which the following requirements of this | |
paragraph are met. | |
(3) The action which the appropriate court or authority considered | |
would constitute or, as the case may be, constituted the listed | 20 |
offence is action done as an act of terrorism or for the purposes of | |
terrorism. | |
(4) The order must relate to— | |
(a) criminal proceedings instituted in the participating | |
country, or | 25 |
(b) a criminal investigation being carried on there. | |
(5) The order must be accompanied by a certificate which gives the | |
specified information; but a certificate may be treated as giving | |
any specified information which is not given in it if the Secretary | |
of State has the information in question. | 30 |
(6) The certificate must— | |
(a) be signed by or on behalf of the court or authority which | |
made or confirmed the order, | |
(b) include a statement as to the accuracy of the information | |
given in it, | 35 |
(c) if it is not in English, include a translation of it into English. | |
The signature may be an electronic signature. | |
(7) The order must be accompanied by an order made by a court | |
exercising criminal jurisdiction in that country for the forfeiture of | |
the property, unless the certificate indicates when such an order is | 40 |
expected to be sent. | |
(8) An appropriate court or authority in a participating country in | |
relation to an overseas freezing order is— | |
(a) a court exercising criminal jurisdiction in the country, | |
(b) a prosecuting authority in the country, | 45 |
| |
| |
|
| |
| |
(c) any other authority in the country which appears to the | |
Secretary of State to have the function of making such | |
orders. | |
(9) References in paragraphs 25E to 25G to an overseas freezing order | |
include its accompanying certificate. | 5 |
Enforcement of overseas freezing orders | |
25E (1) Where this paragraph applies the Secretary of State must send a | |
copy of the overseas freezing order to the Court of Session and to | |
the Lord Advocate. | |
(2) The court is to consider the overseas freezing order on its own | 10 |
initiative within a period prescribed by rules of court. | |
(3) Before giving effect to the overseas freezing order, the court must | |
give the Lord Advocate an opportunity to be heard. | |
(4) The court may decide not to give effect to the overseas freezing | |
order only if, in its opinion, giving effect to it would be | 15 |
incompatible with any of the Convention rights (within the | |
meaning of the Human Rights Act 1998). | |
25F The Court of Session may postpone giving effect to an overseas | |
freezing order in respect of any property— | |
(a) in order to avoid prejudicing a criminal investigation | 20 |
which is taking place in the United Kingdom, or | |
(b) if, under an order made by a court in criminal proceedings | |
in the United Kingdom, the property may not be dealt | |
with. | |
25G (1) Where the Court of Session decides to give effect to an overseas | 25 |
freezing order, the Deputy Principal Clerk of Session must— | |
(a) register the order in the Books of Council and Session, | |
(b) provide for notice of the registration to be given to any | |
person affected by it. | |
(2) For the purpose of enforcing an overseas freezing order registered | 30 |
in the Books of Council and Session, the order is to have effect as | |
if it were an order made by the Court of Session. | |
(3) Paragraphs 20 and 21 apply to an overseas freezing order | |
registered in the Books of Council and Session as they apply to a | |
restraint order under paragraph 18. | 35 |
(4) The Court of Session may cancel the registration of the order, or | |
vary the property to which the order applies, on an application by | |
the Lord Advocate or any other person affected by it, if or to the | |
extent that— | |
(a) the court is of the opinion mentioned in paragraph 25E(4), | 40 |
or | |
(b) the court is of the opinion that the order has ceased to have | |
effect in the participating country. | |
(5) Her Majesty may by Order in Council make further provision for | |
the enforcement in Scotland of registered overseas freezing | 45 |
orders. | |
(6) An Order in Council under this paragraph— | |
| |
| |
|
| |
| |
(a) may make different provision for different cases, | |
(b) is not to be made unless a draft of it has been laid before | |
and approved by resolution of each House of Parliament.” | |
6 In paragraph 28 of that Schedule (enforcement of orders made in designated | |
countries), in sub-paragraph (2), after the second “order” there is inserted | 5 |
“(other than an overseas freezing order within the meaning of paragraph | |
25D)”. | |
7 In Part 3 of that Schedule (forfeiture orders: Northern Ireland), after | |
paragraph 41 there is inserted— | |
“Domestic and overseas freezing orders | 10 |
41A (1) This paragraph has effect for the purposes of paragraphs 41B to | |
41G. | |
(2) The relevant Framework Decision means any Framework | |
Decision of the Council of the European Union which is identified | |
by the Secretary of State by order and is about the execution of | 15 |
orders freezing property or evidence. | |
(3) A listed offence means— | |
(a) an offence described in a prescribed provision of the | |
relevant Framework Decision, or | |
(b) a prescribed offence or an offence of a prescribed | 20 |
description. | |
(4) An order under sub-paragraph (3)(b) which, for the purposes of | |
paragraph 41D, prescribes an offence or a description of offences | |
may require that the conduct which constitutes the offence or | |
offences would, if it occurred in a part of the United Kingdom, | 25 |
constitute an offence in that part. | |
(5) Specified information, in relation to a certificate under paragraph | |
41B or 41D, means— | |
(a) any information required to be given by a prescribed | |
document annexed to the relevant Framework Decision, or | 30 |
(b) any prescribed information. | |
(6) In this paragraph, “prescribed” means prescribed by an order | |
made by the Secretary of State. | |
(7) A participating country means— | |
(a) a country other than the United Kingdom which is a | 35 |
member State on a day appointed for the commencement | |
of Schedule 4 to the Crime (International Co-operation) | |
Act 2003, and | |
(b) any other member State designated by an order made by | |
the Secretary of State. | 40 |
(8) “Country” includes territory. | |
(9) Section 14(2)(a) applies for the purposes of determining what are | |
the proceeds of the commission of an offence. | |
| |
| |
|
