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Serious Organised Crime and Police Bill


Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 6 — Proceeds of crime

55

 

(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

property.

(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

person who holds it,

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

subsection (2) or (3).

255C    

Exclusions

(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

enabling any person—

(a)   

to meet his reasonable living expenses, or

45

 
 

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 6 — Proceeds of crime

56

 

(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

section 255B(3) or (4).

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

which the order applies.

(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

thereafter.

(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

restricted accordingly.

(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

granted.

 
 

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 6 — Proceeds of crime

57

 

(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

arrestment.

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

property order.

(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

granted.

(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

inhibition, and

(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)

and (2)) has effect.

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

subsection (2) insert—

“(3)   

The Director may apply a sum received by him under subsection (2) in

40

making payment of the remuneration and expenses of—

(a)   

the trustee, or

(b)   

any interim receiver appointed in, or in anticipation of, the

proceedings for the recovery order.

 
 

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 6 — Proceeds of crime

58

 

(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

expenses.

(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

Parliament) insert—

   “(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

(1) insert—

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

(b)   

Christmas Day,

(c)   

Good Friday,

(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

seized.”

(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

 
 

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 6 — Proceeds of crime

59

 

cash) substitute—

“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

order or decision.

(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

amended as follows.

(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

territory, and

(ii)   

is not of a description prescribed by an order made by

the Secretary of State.

(2B)   

In subsection (2A) “the relevant criminal conduct” is the criminal

30

conduct by reference to which the property concerned is criminal

property.”

(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

territory, and

40

(ii)   

is not of a description prescribed by an order made by

the Secretary of State.

 
 

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 6 — Proceeds of crime

60

 

(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

territory, and

10

(ii)   

is not of a description prescribed by an order made by

the Secretary of State.

(2B)   

In subsection (2A) “the relevant criminal conduct” is the criminal

conduct by reference to which the property concerned is criminal

property.”

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

territory, and

(ii)   

is not of a description prescribed in an order made by

the Secretary of State.”

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

territory, and

(ii)   

is not of a description prescribed in an order made by

35

the Secretary of State.”

(7)   

In section 332 (failure to disclose: other nominated officers), after subsection (6)

insert—

“(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

territory, and

45

 
 

Serious Organised Crime and Police Bill
Part 2 — Investigations, prosecutions, proceedings and proceeds of crime
Chapter 6 — Proceeds of crime

61

 

(ii)   

is not of a description prescribed in an order made by

the Secretary of State.”

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

if—

(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

94 of this Act) insert—

“(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—

“Threshold amounts

“339A   

Threshold amounts

30

(1)   

This section applies for the purposes of sections 327(2C), 328(5) and

329(2C).

(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

amount).

(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

an account—

(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

a related account, or

 
 

 
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