|
| |
| |
(4) | For the purposes of such proceedings— |
| |
(a) | any rules of court relating to the service of documents have effect as if |
| |
the body were a body corporate, and |
| |
(b) | the following provisions apply as they apply in relation to a body |
| |
| 5 |
(i) | in England and Wales, section 33 of the Criminal Justice Act |
| |
1925 and Schedule 3 to the Magistrates’ Courts Act 1980; |
| |
(ii) | in Northern Ireland, section 18 of the Criminal Justice Act |
| |
(Northern Ireland) 1945 and Article 166 of, and Schedule 4 to, |
| |
the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. |
| 10 |
| |
(5) | For the purposes of proceedings in Scotland for such an offence— |
| |
(a) | any rules of court relating to the service of documents have effect as if |
| |
the body were a body corporate, and |
| |
(b) | in the case of proceedings on indictment, section 70 of the Criminal |
| 15 |
Procedure (Scotland) Act 1995 applies as it applies in relation to a body |
| |
| |
(6) | Subsection (5)(b) does not apply so far as the amendments made to section 70 |
| |
of the Act of 1995 by section 66 of the Criminal Justice and Licensing (Scotland) |
| |
Act 2010 (proceedings on indictment against organisations) are in force |
| 20 |
| |
| |
39 | Meaning of “funds” and “economic resources” |
| |
(1) | In this Part, “funds” means financial assets and benefits of every kind, |
| |
including (but not limited to)— |
| 25 |
(a) | cash, cheques, claims on money, drafts, money orders and other |
| |
| |
(b) | deposits with relevant institutions or other persons, balances on |
| |
accounts, debts and debt obligations; |
| |
(c) | publicly and privately traded securities and debt instruments, |
| 30 |
including stocks and shares, certificates representing securities, bonds, |
| |
notes, warrants, debentures and derivative products; |
| |
(d) | interest, dividends and other income on or value accruing from or |
| |
| |
(e) | credit, rights of set-off, guarantees, performance bonds and other |
| 35 |
| |
(f) | letters of credit, bills of lading and bills of sale; |
| |
(g) | documents providing evidence of an interest in funds or financial |
| |
| |
(h) | any other instrument of export financing. |
| 40 |
(2) | In this Part, “economic resources” means assets of every kind, whether tangible |
| |
or intangible, movable or immovable, which are not funds but can be used to |
| |
obtain funds, goods or services. |
| |
| |
| |
|
| |
| |
40 | Meaning of “financial services” |
| |
(1) | In this Part, “financial services” means any service of a financial nature, |
| |
including (but not limited to)— |
| |
(a) | insurance-related services consisting of— |
| |
(i) | direct life assurance; |
| 5 |
(ii) | direct insurance other than life assurance; |
| |
(iii) | reinsurance and retrocession; |
| |
(iv) | insurance intermediation, such as brokerage and agency; |
| |
(v) | services auxiliary to insurance, such as consultancy, actuarial, |
| |
risk assessment and claim settlement services; |
| 10 |
(b) | banking and other financial services consisting of— |
| |
(i) | accepting deposits and other repayable funds; |
| |
(ii) | lending (including consumer credit, mortgage credit, factoring |
| |
and financing of commercial transactions); |
| |
| 15 |
(iv) | payment and money transmission services (including credit, |
| |
charge and debit cards, travellers’ cheques and bankers’ drafts); |
| |
(v) | providing guarantees or commitments; |
| |
(vi) | financial trading (as defined in subsection (2) below); |
| |
(vii) | participating in issues of any kind of securities (including |
| 20 |
underwriting and placement as an agent, whether publicly or |
| |
privately) and providing services related to such issues; |
| |
| |
(ix) | asset management, such as cash or portfolio management, all |
| |
forms of collective investment management, pension fund |
| 25 |
management, custodial, depository and trust services; |
| |
(x) | settlement and clearing services for financial assets (including |
| |
securities, derivative products and other negotiable |
| |
| |
(xi) | providing or transferring financial information, and financial |
| 30 |
data processing or related software (but only by suppliers of |
| |
other financial services); |
| |
(xii) | providing advisory and other auxiliary financial services in |
| |
respect of any activity listed in sub-paragraphs (i) to (xi) |
| |
(including credit reference and analysis, investment and |
| 35 |
portfolio research and advice, advice on acquisitions and on |
| |
corporate restructuring and strategy). |
| |
(2) | In subsection (1)(b)(vi), “financial trading” means trading for own account or |
| |
for account of customers, whether on an investment exchange, in an over-the- |
| |
counter market or otherwise, in— |
| 40 |
(a) | money market instruments (including cheques, bills and certificates of |
| |
| |
| |
(c) | derivative products (including futures and options); |
| |
(d) | exchange rate and interest rate instruments (including products such as |
| 45 |
swaps and forward rate agreements); |
| |
(e) | transferable securities; |
| |
(f) | other negotiable instruments and financial assets (including bullion). |
| |
| |
| |
|
| |
| |
41 | Meaning of “relevant institution” |
| |
(1) | In this Part “relevant institution” means- |
| |
(a) | a person that has permission under Part 4 of the Financial Services and |
| |
Markets Act 2000 (permission to carry on regulated activity); |
| |
(b) | an EEA firm of the kind mentioned in paragraph 5(b) of Schedule 3 to |
| 5 |
that Act that has permission under paragraph 15 of that Schedule (as a |
| |
result of qualifying for authorisation under paragraph 12 of that |
| |
Schedule) to accept deposits; or |
| |
(c) | an undertaking that by way of business— |
| |
(i) | operates a currency exchange office, |
| 10 |
(ii) | transmits money (or any representation of monetary value) by |
| |
| |
(iii) | cashes cheques that are made payable to customers. |
| |
(2) | The definition of “relevant institution” in subsection (1) must be read with |
| |
section 22 of the Financial Services and Markets Act 2000, any relevant order |
| 15 |
under that section and Schedule 2 to that Act (classes of regulated activities and |
| |
categories of investment). |
| |
42 | Interpretation: general |
| |
| |
“designated person” has the meaning given by section 1; |
| 20 |
“document” includes information recorded in any form and, in relation to |
| |
information recorded otherwise than in legible form, references to its |
| |
production include producing a copy of the information in legible |
| |
| |
“economic resources” has the meaning given by section 39(2); |
| 25 |
| |
(a) | an enactment comprised in subordinate legislation (within the |
| |
meaning of the Interpretation Act 1978); |
| |
(b) | an enactment comprised in, or in an instrument made under— |
| |
(i) | an Act of the Scottish Parliament; |
| 30 |
(ii) | Northern Ireland legislation; or |
| |
(iii) | a Measure or Act of the National Assembly for Wales; |
| |
“final designation” means a designation under section 2 (including any |
| |
renewed such designation); |
| |
“financial services” has the meaning given by section 40; |
| 35 |
“funds” has the meaning given by section 39(1); |
| |
“interim designation” means a designation under section 6; |
| |
“relevant institution” has the meaning given by section 41; |
| |
“the relevant Security Council resolutions” has the meaning given by |
| |
| 40 |
(2) | For the purposes of this Part “the relevant Security Council resolutions” are— |
| |
(a) | resolution 1373 (2001) adopted by the Security Council of the United |
| |
Nations on 28th September 2001, and |
| |
(b) | resolution 1452 (2002) adopted by the Security Council of the United |
| |
Nations on 20th December 2002. |
| 45 |
| |
| |
|
| |
| |
(3) | The Treasury may by order amend subsection (2) so as to add further relevant |
| |
Security Council resolutions or remove any that are superseded. |
| |
(4) | Any such order must be made by statutory instrument subject to annulment in |
| |
pursuance of a resolution of either House of Parliament. |
| |
| 5 |
| |
(1) | This section applies in relation to any notice to be given to a person by the |
| |
Treasury under this Part. |
| |
(2) | Any such notice may be given— |
| |
(a) | by posting it to the person’s last known address, or |
| 10 |
(b) | where the person is a body corporate, partnership or unincorporated |
| |
body other than a partnership, by posting it to the registered or |
| |
principal office of the body or partnership concerned. |
| |
(3) | Where the Treasury do not have an address for the person, they must make |
| |
arrangements for the notice to be given to the person at the first available |
| 15 |
| |
| |
(1) | This Part binds the Crown. |
| |
(2) | No contravention by the Crown of a provision of this Part makes the Crown |
| |
| 20 |
(3) | The High Court or, in Scotland, the Court of Session may, on the application of |
| |
a person appearing to the court to have an interest, declare unlawful any act or |
| |
omission of the Crown that constitutes a contravention of a provision of this |
| |
| |
(4) | Nothing in this section affects Her Majesty in her private capacity. |
| 25 |
(5) | Subsection (4 ) is to be read as if section 38(3) of the Crown Proceedings Act |
| |
1947 (meaning of Her Majesty in her private capacity) were contained in this |
| |
| |
45 | Consequential amendments, repeals and revocations |
| |
(1) | Part 1 of Schedule 1 (which contains amendments consequential on this Part) |
| 30 |
| |
(2) | Part 1 of Schedule 2 (which contains repeals and revocations consequential on |
| |
| |
46 | Transitional provisions and savings |
| |
(1) | The Terrorist Asset-Freezing (Temporary Provisions) Act 2010 ceases to have |
| 35 |
effect on the coming into force of this Part. |
| |
(2) | The repeal by this Part of the Act of 2010 does not affect the continued validity, |
| |
lawfulness or effectualness of anything that— |
| |
| |
| |
|
| |
| |
(a) | was done or omitted by a person other than the Treasury in the period |
| |
beginning with 4 February 2010 and ending with the coming into force |
| |
| |
(b) | was valid, lawful or effectual by virtue of section 2 of that Act |
| |
(protection of things done or omitted in interim period). |
| 5 |
(3) | Subsection (2) is without prejudice to the operation of section 16 of the |
| |
Interpretation Act 1978 (general savings) in relation to the repeal by this Part |
| |
| |
(4) | In its application to the repeal by this Part of section 1 of the Act of 2010 |
| |
(temporary validity of certain Orders in Council), section 16(1) of the Act of |
| 10 |
| |
(a) | references to anything done, suffered, acquired, accrued or incurred |
| |
under section 1 of the Act of 2010 included references to anything done, |
| |
suffered, acquired, accrued or incurred under any Order deemed by |
| |
that section to have been validly made, |
| 15 |
(b) | the reference to any offence committed against that enactment were a |
| |
reference to any offence committed against any such Order, and |
| |
(c) | at the end there were inserted “and as if the enactment had not been |
| |
due to cease to have effect on 31 December 2010”. |
| |
(5) | Anything done or omitted to be done by the Treasury under the Terrorism |
| 20 |
(United Nations Measures) Order 2009 (S.I. 2009/1747) is, if in force or effective |
| |
immediately before the coming into force of this Part, to have effect as if done |
| |
or omitted by the Treasury under any corresponding provision of this Part so |
| |
far as that is required for continuing its effect on and after the coming into force |
| |
| 25 |
| |
(a) | any direction made, licence granted, or request for information or |
| |
documents, by the Treasury under the Order of 2009 that is in force |
| |
immediately before the coming into force of this Part has effect, on or |
| |
after the coming into force of this Part, as a final designation, a licence |
| 30 |
or (as the case may be) a request under any corresponding provision of |
| |
this Part so far as that is required for continuing its effect on and after |
| |
the coming into force of this Part, and |
| |
(b) | any information obtained by the Treasury under that Order (including |
| |
any document so obtained and any copy or extract made of any |
| 35 |
document so obtained) is to be treated for the purposes of section 23 |
| |
(general power to disclose information) as obtained by the Treasury |
| |
| |
(7) | Subsections (5) and (6) have effect despite the fact that (following the repeal of |
| |
the Act of 2010) the Order concerned is not validly made under, or that any |
| 40 |
provision of it is not within the power conferred by, section 1 of the United |
| |
| |
(8) | Any final designation that has effect by virtue of subsections (5) and (6) ceases |
| |
to have effect at the end of the period of three months after this Part comes into |
| |
force unless renewed (or revoked) by the Treasury under this Part. |
| 45 |
(9) | The references to offences under this Part in the new sub-paragraphs inserted |
| |
by way of substitution by Part 1 of Schedule 1 are to be read as including |
| |
references to any offences under— |
| |
| |
| |
|
| |
| |
(a) | article 7, 8 or 10 of the Terrorism (United Nations Measures) Order 2006 |
| |
| |
(b) | article 10, 11, 12, 13, 14 or 16 of the Order of 2009, |
| |
| that were committed while the Act of 2010 was in force. |
| |
(10) | Without prejudice to the operation of section 16 of the Interpretation Act 1978, |
| 5 |
the repeal by this Part of section 64(1)(e) of the Counter-Terrorism Act 2008 |
| |
(meaning of UN terrorism orders) does not affect— |
| |
(a) | any financial restrictions proceedings on an application made under |
| |
section 63 of the Act of 2008 before the coming into force of this Part, or |
| |
(b) | any proceedings arising out of those proceedings. |
| 10 |
| |
(1) | This section applies if the Security Council of the United Nations takes any |
| |
decision that has the effect of terminating (permanently and without |
| |
replacement) the operation of the relevant Security Council resolutions (in |
| |
| 15 |
(2) | The Treasury must lay before Parliament a draft order repealing this Part (in |
| |
whole or in part) in accordance with the decision. |
| |
| |
(a) | may contain such incidental, consequential, supplementary, |
| |
transitional, transitory or saving provision as the Treasury consider |
| 20 |
appropriate (including provision amending or repealing any |
| |
enactment, whether in this Part or elsewhere), |
| |
(b) | must be made by statutory instrument, and |
| |
(c) | is not to be made unless the draft is approved by a resolution of each |
| |
| 25 |
| |
Terrorist financing, money laundering etc. |
| |
Directions in particular cases |
| |
48 | Directions to branches of credit institutions and financial institutions |
| |
(1) | In paragraph 5 of Schedule 7 to the Counter-Terrorism Act 2008 (directions in |
| 30 |
relation to terrorist financing and money laundering etc: meaning of “credit |
| |
institution” and “financial institution”)— |
| |
(a) | for sub-paragraph (1) substitute— |
| |
“(1) | “Credit institution” means a credit institution, as defined in |
| |
Article 4(1)(a) of the banking consolidation directive, when it |
| 35 |
accepts deposits or other repayable funds from the public or |
| |
grants credits for its own account (within the meaning of that |
| |
| |
(b) | after sub-paragraph (2)(b) insert— |
| |
“(ba) | a person equivalent to an insurance company within |
| 40 |
paragraph (b) whose head office is located in a non- |
| |
EEA state, when carrying out activities of the kind |
| |
mentioned in paragraph (b);”, |
| |
| |
| |
|
| |
| |
(c) | omit sub-paragraph (2)(f), and |
| |
(d) | after sub-paragraph (2) insert— |
| |
“(3) | The fact that an institution’s head office is located in a non- |
| |
EEA state does not prevent it from being a credit institution |
| |
or a financial institution for the purposes of this Schedule.” |
| 5 |
(2) | In paragraph 9 of that Schedule (requirements that may be imposed by a |
| |
direction), after sub-paragraph (5) insert— |
| |
“(5A) | Descriptions of transactions or business relationships for the |
| |
purposes of sub-paragraph (5)(b) may, in particular, include |
| |
transactions or business relationships of a particular branch (or |
| 10 |
description of branch) of a relevant person.” |
| |
49 | Directions in relation to subsidiaries |
| |
(1) | Paragraph 9 of Schedule 7 to the Counter-Terrorism Act 2008 (requirements |
| |
that may be imposed by a direction) is amended as follows. |
| |
(2) | In sub-paragraph (1), after paragraph (c), insert— |
| 15 |
“(d) | a company that is a subsidiary of a company within |
| |
| |
(3) | After sub-paragraph (6) insert— |
| |
“(7) | In this paragraph “subsidiary” has the meaning given by section 1159 |
| |
of the Companies Act 2006 (and “company” has the same meaning as |
| 20 |
| |
General directions and other requirements |
| |
50 | Circumventing requirements of Schedule 7 directions |
| |
(1) | Schedule 7 to the Counter-Terrorism Act 2008 is amended as follows. |
| |
(2) | After paragraph 25 (civil penalties for failure to comply with requirements) |
| 25 |
| |
“25A (1) | An enforcement authority may impose a penalty of such amount as |
| |
it considers appropriate on a relevant person who has intentionally |
| |
participated in activities knowing that the object or effect of them |
| |
was (whether directly or indirectly) to circumvent a requirement |
| 30 |
imposed by a direction under this Schedule. |
| |
(2) | In sub-paragraph (1) “appropriate” means effective, proportionate |
| |
| |
(3) | A person on whom a penalty is imposed under this paragraph is not |
| |
liable to be proceeded against for an offence under paragraph 30A in |
| 35 |
respect of participation in the same activities.” |
| |
(3) | After paragraph 30 (offence of failing to comply with requirements) insert— |
| |
“Offences: relevant person circumventing requirements |
| |
30A (1) | A relevant person who intentionally participates in activities |
| |
knowing that the object or effect of them is (whether directly or |
| 40 |
| |
| |
|
