|
| |
|
(4) | The court may make a prohibitory property order on an application if |
| |
it is satisfied that the condition in subsection (5) is met and, where |
| |
applicable, that the condition in subsection (6) is met. |
| |
(5) | The first condition is that there is a good arguable case— |
| |
(a) | that the property to which the application for the order relates |
| 5 |
is or includes recoverable property, and |
| |
(b) | that, if any of it is not recoverable property, it is associated |
| |
| |
(6) | The second condition is that, if— |
| |
(a) | the property to which the application for the order relates |
| 10 |
includes property alleged to be associated property, and |
| |
(b) | the enforcement authority has not established the identity of the |
| |
| |
the authority has taken all reasonable steps to do so. |
| |
255B | Variation and recall of prohibitory property order |
| 15 |
(1) | The court may at any time vary or recall a prohibitory property order. |
| |
(2) | If the court makes an interim administration order that applies to all of |
| |
the property to which a prohibitory property order applies, it must |
| |
recall the prohibitory property order. |
| |
(3) | If the court makes an interim administration order that applies to some |
| 20 |
but not all of the property to which a prohibitory property order |
| |
applies, it must vary the prohibitory property order so as to exclude |
| |
any property to which the interim administration order applies. |
| |
(4) | If the court decides that any property to which a prohibitory property |
| |
order applies is neither recoverable property nor associated property, |
| 25 |
it must vary the order so as to exclude the property. |
| |
(5) | Before exercising power under this Chapter to vary or recall a |
| |
prohibitory property 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. |
| 30 |
(6) | Subsection (5) does not apply where the court is acting as required by |
| |
| |
| |
(1) | The power to vary a prohibitory property order includes (in particular) |
| |
power to make exclusions as follows— |
| 35 |
(a) | power to exclude property from the order, and |
| |
(b) | power, otherwise than by excluding property from the order, to |
| |
make exclusions from the prohibition on dealing with the |
| |
property to which the order applies. |
| |
(2) | Exclusions from the prohibition on dealing with the property to which |
| 40 |
the order applies (other than exclusions of property from the order) |
| |
may also be made when the order is made. |
| |
(3) | An exclusion may, in particular, make provision for the purpose of |
| |
| |
(a) | to meet his reasonable living expenses, or |
| 45 |
|
| |
|
| |
|
(b) | to carry on any trade, business, profession or occupation. |
| |
(4) | An exclusion may be made subject to conditions |
| |
(5) | An exclusion may not be made for the purpose of enabling any person |
| |
to meet any legal expenses in respect of proceedings under this Part. |
| |
(6) | If excluded property is not specified in the order it must be described |
| 5 |
in the order in general terms. |
| |
(7) | The power to make exclusions must be exercised with a view to |
| |
ensuring, so far as practicable, that the satisfaction of any right of the |
| |
enforcement authority to recover the property obtained through |
| |
unlawful conduct is not unduly prejudiced. |
| 10 |
(8) | Subsection (7) does not apply where the court is acting as required by |
| |
| |
255D | Restriction on proceedings and remedies |
| |
(1) | While a prohibitory property order has effect the court may sist any |
| |
action, execution or other legal process in respect of the property to |
| 15 |
| |
(2) | If a court (whether the Court of Session or any other court) in which |
| |
proceedings are pending in respect of any property is satisfied that a |
| |
prohibitory property order has been applied for or made in respect of |
| |
the property, it may either sist the proceedings or allow them to |
| 20 |
continue on any terms it thinks fit. |
| |
(3) | Before exercising any power conferred by this section, the court must |
| |
(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. |
| 25 |
255E | Arrestment of property affected by prohibitory property order |
| |
(1) | On the application of the enforcement authority the Court of Session |
| |
may, in relation to moveable recoverable property to which a |
| |
prohibitory property order applies (whether generally or to such of it |
| |
as is specified in the application), grant warrant for arrestment. |
| 30 |
(2) | An application under subsection (1) may be made at the same time as |
| |
the application for the prohibitory property order or at any time |
| |
| |
(3) | Such a warrant for arrestment may be granted only if the property |
| |
would be arrestable if the person entitled to it were a debtor. |
| 35 |
(4) | A warrant under subsection (1) has effect as if granted on the |
| |
dependence of an action for debt at the instance of the enforcement |
| |
authority against the person and may be executed, recalled, loosed or |
| |
| |
(5) | An arrestment executed under this section ceases to have effect when, |
| 40 |
or in so far as, the prohibitory property order ceases to apply in respect |
| |
of the property in relation to which the warrant for arrestment was |
| |
| |
|
| |
|
| |
|
(6) | If an arrestment ceases to have effect to any extent by virtue of |
| |
subsection (5) the enforcement authority must apply to the Court of |
| |
Session for an order recalling or, as the case may be, restricting the |
| |
| |
255F | Inhibition of property affected by prohibitory property order |
| 5 |
(1) | On the application of the enforcement authority, the Court of Session |
| |
may, in relation to the property mentioned in subsection (2), grant |
| |
warrant for inhibition against any person specified in a prohibitory |
| |
| |
(2) | That property is heritable property situated in Scotland to which the |
| 10 |
prohibitory property order applies (whether generally or to such of it |
| |
as is specified in the application). |
| |
(3) | The warrant for inhibition— |
| |
(a) | has effect as if granted on the dependence of an action for debt |
| |
by the enforcement authority against the person and may be |
| 15 |
executed, recalled, loosed or restricted accordingly, and |
| |
(b) | has the effect of letters of inhibition and must forthwith be |
| |
registered by the enforcement authority in the register of |
| |
inhibitions and adjudications. |
| |
(4) | Section 155 of the Titles to Land Consolidation (Scotland) Act 1868 |
| 20 |
(c. 101) (effective date of inhibition) applies in relation to an inhibition |
| |
for which warrant is granted under subsection (1) as it applies to an |
| |
inhibition by separate letters or contained in a summons. |
| |
(5) | An inhibition executed under this section ceases to have effect when, or |
| |
in so far as, the prohibitory property order ceases to apply in respect of |
| 25 |
the property in relation to which the warrant for inhibition was |
| |
| |
(6) | If an inhibition ceases to have effect to any extent by virtue of |
| |
subsection (5) the enforcement authority must— |
| |
(a) | apply for the recall or, as the case may be, the restriction of the |
| 30 |
| |
(b) | ensure that the recall or restriction is reflected in the register of |
| |
inhibitions and adjudications.” |
| |
(3) | Schedule 6 (minor and consequential amendments relating to subsections (1) |
| |
| 35 |
91 | Civil recovery: interim receivers’ expenses etc. |
| |
(1) | The Proceeds of Crime Act 2002 (c. 29) is amended as follows. |
| |
(2) | In section 280 (civil recovery orders: applying realised proceeds), after |
| |
| |
“(3) | The Director may apply a sum received by him under subsection (2) in |
| 40 |
making payment of the remuneration and expenses of— |
| |
| |
(b) | any interim receiver appointed in, or in anticipation of, the |
| |
proceedings for the recovery order. |
| |
|
| |
|
| |
|
(4) | Subsection (3)(a) does not apply in relation to the remuneration of the |
| |
trustee if the trustee is a member of the staff of the Agency.” |
| |
(3) | In section 284 (payment of interim administrator or trustee (Scotland))— |
| |
(a) | the existing words become subsection (1), and |
| |
(b) | after that subsection insert— |
| 5 |
“(2) | The Scottish Ministers may apply a sum received by them |
| |
under section 280(2) in making payment of such fees or |
| |
| |
(3) | Subsection (2) does not apply in relation to the fees of a trustee |
| |
for civil recovery if the trustee is a member of their staff.” |
| 10 |
(4) | In paragraph 5 of Schedule 1 (finances of the Assets Recovery Agency), after |
| |
sub-paragraph (1) (paragraph (b) of which provides for the expenses of the |
| |
Director and staff of the Agency to be paid out of money provided by |
| |
| |
“(1A) | Sub-paragraph (1)(b) has effect subject to anything in this Act.” |
| 15 |
92 | Detention of seized cash: meaning of “48 hours” |
| |
(1) | In the Proceeds of Crime Act 2002 (c. 29), Chapter 3 of Part 5 (civil recovery of |
| |
cash in summary proceedings) is amended as follows. |
| |
(2) | In section 295 (detention of seized cash, initially for 48 hours), after subsection |
| |
| 20 |
“(1A) | The period of 48 hours mentioned in subsection (1) is to be calculated |
| |
in accordance with subsection (1B). |
| |
(1B) | In calculating a period of 48 hours in accordance with this subsection, |
| |
no account shall be taken of— |
| |
(a) | any Saturday or Sunday, |
| 25 |
| |
| |
(d) | any day that is a bank holiday under the Banking and Financial |
| |
Dealings Act 1971 in the part of the United Kingdom within |
| |
which the cash is seized, or |
| 30 |
(e) | any day prescribed under section 8(2) of the Criminal |
| |
Procedure (Scotland) Act 1995 as a court holiday in a sheriff |
| |
court in the sheriff court district within which the cash is |
| |
| |
(3) | In sections 290(6), 296(1) and 302(2), after “48 hours” insert “(calculated in |
| 35 |
accordance with section 295(1B))”. |
| |
93 | Appeal in proceedings for forfeiture of cash |
| |
(1) | For section 299 of the Proceeds of Crime Act 2002 (appeal against forfeiture of |
| |
|
| |
|
| |
|
| |
“299 | Appeal against decision under section 298 |
| |
(1) | Any party to proceedings for an order for the forfeiture of cash under |
| |
section 298 who is aggrieved by an order under that section or by the |
| |
decision of the court not to make such an order may appeal— |
| 5 |
(a) | in relation to England and Wales, to the Crown Court; |
| |
(b) | in relation to Scotland, to the Sheriff Principal; |
| |
(c) | in relation to Northern Ireland, to a county court. |
| |
(2) | An 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 |
| 10 |
| |
(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 cash, it |
| |
may order the release of the cash.” |
| |
(2) | This section does not apply to a decision of a court not to order the forfeiture |
| 15 |
of cash under section 298 of that Act taken before this section comes into force. |
| |
94 | Money laundering: defence where overseas conduct is legal under local law |
| |
(1) | In the Proceeds of Crime Act 2002 (c. 29), Part 7 (money laundering) is |
| |
| |
(2) | In section 327 (concealing etc.), after subsection (2) insert— |
| 20 |
“(2A) | Nor does a person commit an offence under subsection (1) if— |
| |
(a) | he knows, or believes on reasonable grounds, that the relevant |
| |
criminal conduct occurred in a particular country or territory |
| |
outside the United Kingdom, and |
| |
(b) | the relevant criminal conduct— |
| 25 |
(i) | is not unlawful under the criminal law of that country or |
| |
| |
(ii) | is not of a description prescribed by an order made by |
| |
| |
(2B) | In subsection (2A) “the relevant criminal conduct” is the criminal |
| 30 |
conduct by reference to which the property concerned is criminal |
| |
| |
(3) | In section 328 (arrangements), after subsection (2) insert— |
| |
“(3) | Nor does a person commit an offence under subsection (1) if— |
| |
(a) | he knows, or believes on reasonable grounds, that the relevant |
| 35 |
criminal conduct occurred in a particular country or territory |
| |
outside the United Kingdom, and |
| |
(b) | the relevant criminal conduct— |
| |
(i) | is not unlawful under the criminal law of that country or |
| |
| 40 |
(ii) | is not of a description prescribed by an order made by |
| |
| |
|
| |
|
| |
|
(4) | In subsection (3) “the relevant criminal conduct” is the criminal conduct |
| |
by reference to which the property concerned is criminal property.” |
| |
(4) | In section 329 (acquisition, use and possession), after subsection (2) insert— |
| |
“(2A) | Nor does a person commit an offence under subsection (1) if— |
| |
(a) | he knows, or believes on reasonable grounds, that the relevant |
| 5 |
criminal conduct occurred in a particular country or territory |
| |
outside the United Kingdom, and |
| |
(b) | the relevant criminal conduct— |
| |
(i) | is not unlawful under the criminal law of that country or |
| |
| 10 |
(ii) | is not of a description prescribed by an order made by |
| |
| |
(2B) | In subsection (2A) “the relevant criminal conduct” is the criminal |
| |
conduct by reference to which the property concerned is criminal |
| |
| 15 |
(5) | In section 330 (failure to disclose: regulated sector), after subsection (7) insert— |
| |
“(7A) | Nor does a person commit an offence under this section if— |
| |
(a) | he knows, or believes on reasonable grounds, that the money |
| |
laundering is occurring in a particular country or territory |
| |
outside the United Kingdom, and |
| 20 |
(b) | the money laundering— |
| |
(i) | is not unlawful under the criminal law of that country or |
| |
| |
(ii) | is not of a description prescribed in an order made by |
| |
| 25 |
(6) | In section 331 (failure to disclose: nominated officers in the regulated sector), |
| |
after subsection (6) insert— |
| |
“(6A) | Nor does a person commit an offence under this section if— |
| |
(a) | he knows, or believes on reasonable grounds, that the money |
| |
laundering is occurring in a particular country or territory |
| 30 |
outside the United Kingdom, and |
| |
(b) | the money laundering— |
| |
(i) | is not unlawful under the criminal law of that country or |
| |
| |
(ii) | is not of a description prescribed in an order made by |
| 35 |
| |
(7) | In section 332 (failure to disclose: other nominated officers), after subsection (6) |
| |
| |
“(7) | Nor does a person commit an offence under this section if— |
| |
(a) | he knows, or believes on reasonable grounds, that the money |
| 40 |
laundering is occurring in a particular country or territory |
| |
outside the United Kingdom, and |
| |
(b) | the money laundering— |
| |
(i) | is not unlawful under the criminal law of that country or |
| |
| 45 |
|
| |
|
| |
|
(ii) | is not of a description prescribed in an order made by |
| |
| |
95 | Money laundering: threshold amounts |
| |
(1) | The Proceeds of Crime Act 2002 (c. 29) is amended as follows. |
| |
(2) | In section 327 (concealing etc.), after subsection (2B) (which is inserted by |
| 5 |
section 94 of this Act) insert— |
| |
“(2C) | A deposit-taking body that does an act mentioned in paragraph (c) or |
| |
(d) of subsection (1) does not commit an offence under that subsection |
| |
| |
(a) | it does the act in operating an account maintained with it, and |
| 10 |
(b) | the value of the criminal property concerned is less than the |
| |
threshold amount determined under section 339A for the act.” |
| |
(3) | In section 328 (arrangements), after subsection (4) (which is inserted by section |
| |
| |
“(5) | A deposit-taking body that does an act mentioned in subsection (1) |
| 15 |
does not commit an offence under that subsection if— |
| |
(a) | it does the act in operating an account maintained with it, and |
| |
(b) | the arrangement facilitates the acquisition, retention, use or |
| |
control of criminal property of a value that is less than the |
| |
threshold amount determined under section 339A for the act.” |
| 20 |
(4) | In section 329 (acquisition, use and possession), after subsection (2B) (which is |
| |
inserted by section 94 of this Act) insert— |
| |
“(2C) | A deposit-taking body that does an act mentioned in subsection (1) |
| |
does not commit an offence under that subsection if— |
| |
(a) | it does the act in operating an account maintained with it, and |
| 25 |
(b) | the value of the criminal property concerned is less than the |
| |
threshold amount determined under section 339A for the act.” |
| |
(5) | In Part 7 (money laundering), after section 339 insert— |
| |
| |
| 30 |
(1) | This section applies for the purposes of sections 327(2C), 328(5) and |
| |
| |
(2) | The threshold amount for acts done by a deposit-taking body in |
| |
operating an account is £100 unless a higher amount is specified under |
| |
the following provisions of this section (in which event it is that higher |
| 35 |
| |
(3) | An officer of Revenue and Customs, or a constable, may specify the |
| |
threshold amount for acts done by a deposit-taking body in operating |
| |
| |
(a) | when he gives consent, or gives notice refusing consent, to the |
| 40 |
deposit-taking body’s doing of an act mentioned in section |
| |
327(1), 328(1) or 329(1) in opening, or operating, the account or |
| |
| |
|
| |
|