PART 1 GENERAL PROVISIONS

Title and commencement_I1

1. This Order may be cited as the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 and shall come into force on 1st January 2006.

Interpretation_I2

2. In this Order—

[^F1 “The 2014 Regulations” means the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014 ; ^F1]

“the Act” means the Proceeds of Crime Act 2002 ;

^F2...

“country” includes territory;

“external order” has the meaning set out in section 447(2) of the Act;

“external request” has the meaning set out in section 447(1) of the Act;

[^F1 “overseas confiscation order” has the same meaning as in the 2014 Regulations; ^F1]

“a relevant officer of Revenue and Customs” means such an officer exercising functions by virtue of section 6 of the Commissioners for Revenue and Customs Act 2005 ( 2 ) .

[^F3Cryptoassets etc

2A. —(1) “ Cryptoasset ” means a cryptographically secured digital representation of value or contractual rights that uses a form of distributed ledger technology and can be transferred, stored or traded electronically.

(2) “ Crypto wallet ” means—

(a)software,

(b)hardware,

(c)a physical item, or

(d)any combination of the things mentioned in paragraphs (a) to (c),

which is used to store the cryptographic private key that allows cryptoassets to be accessed.

(3) The circumstances in which a cryptoasset is taken to be “destroyed” include circumstances where it is—

(a)disposed of,

(b)transferred, or

(c)otherwise dealt with,

in such a way as to ensure, or to make it virtually certain, that it will not be the subject of any further transactions or be dealt with again in any other way.^F3]

[^F3Meaning of “UK-connected cryptoasset service provider”

2B. —(1) “ UK-connected cryptoasset service provider ” means a cryptoasset service provider which—

(a)is acting in the course of business carried on by it in the United Kingdom,

(b)has terms and conditions with the persons to whom it provides services which provide for a legal dispute to be litigated in the courts of a part of the United Kingdom,

(c)holds in the United Kingdom any data relating to the persons to whom it provides services, or

(d)meets the condition in paragraph (2).

(2) The condition in this paragraph is that—

(a)the cryptoasset service provider has its registered office or, if it does not have one, its head office in the United Kingdom, and

(b)the day-to-day management of the provider’s business is the responsibility of that office or another establishment maintained by it in the United Kingdom.

(3) “Cryptoasset service provider” in paragraphs (1) and (2) includes a cryptoasset exchange provider and a custodian wallet provider; and for this purpose—

“ cryptoasset exchange provider ” means a firm or sole practitioner who by way of business provides one or more of the following services, including where the firm or sole practitioner does so as creator or issuer of any of the cryptoassets involved—

“ custodian wallet provider ” means a firm or sole practitioner who by way of business provides services to safeguard, or to safeguard and administer—

(4) In the definition of “cryptoasset exchange provider” in paragraph (3), “ cryptoasset ” includes a right to, or interest in, a cryptoasset. ^F3]

Insolvency practitioners_I3

3.—(1) Paragraphs (2) and (3) apply if a person acting as an insolvency practitioner seizes or disposes of any property in relation to which his functions are not exercisable because—

(a)it is for the time being subject to a restraint order made under article 8, 58 or 95; or

(b)it is for the time being subject to a property freezing order made under article 147, an interim receiving order made under article 151, a prohibitory property order made under article 161 or an interim administration order made under article 167,

and at the time of the seizure or disposal he believes on reasonable grounds that he is entitled (whether in pursuance of an order of a court or otherwise) to seize or dispose of the property.

(2) He is not liable to any person in respect of any loss or damage resulting from the seizure or disposal, except so far as the loss or damage is caused by his negligence.

(3) He has a lien on the property or the proceeds of its sale—

(a)for such of his expenses as were incurred in connection with the liquidation, bankruptcy, sequestration or other proceedings in relation to which he purported to make the seizure or disposal, and

(b)for so much of his remuneration as may reasonably be assigned to his acting in connection with those proceedings.

^F4(4) Paragraph (2) does not prejudice the generality of any provision of ... the 1986 Act, [^F5the 2016 Act,^F5] the 1989 Order or any Act or Order which confers a protection from liability on him.

(5) Paragraph (7) applies if—

(a)property is subject to a restraint order made under article 8, 58 or 95,

(b)a person acting as an insolvency practitioner incurs expenses in respect of property subject to the restraint order, and

(c)he does not know (and has no reasonable grounds to believe) that the property is subject to the restraint order.

(6) Paragraph (7) also applies if—

(a)property is subject to a restraint order made under article 8, 58 or 95,

(b)a person acting as an insolvency practitioner incurs expenses which are not ones in respect of property subject to the restraint order, and

(c)the expenses are ones which (but for the effect of the restraint order) might have been met by taking possession of and realising property subject to it.

[^F6 (6A) Paragraph (7) also applies if—

(a)property is detained under or by virtue of article 11A, 17I, 17J, 60A, 65I [^F7 , 65J, 98A, 103I or 103J^F7] ;

(b)a person acting as an insolvency practitioner incurs expenses which are not ones in respect of the detained property; and

(c)the expenses are ones which (but for the effect of the detention of the property) might have been met by taking possession of and realising the property.^F6]

[^F8 (7) Whether or not the insolvency practitioner has seized or disposed of any property, the insolvency practitioner is entitled to payment of the expenses under—

(a)article 33(2), 34(3) or 48D(2) if the restraint order was made under article 8 or the property was detained under or by virtue of article 11A, 17I or 17J;

(b)article 77(2), 78(3) or 86D(2) if the restraint order was made under article 58 or the property was detained under or by virtue of article 60A, 65I or 65J;

[^F9 (c)article 119(2), 120(3) or 134D(2) if the restraint order was made under article 95 or the property was detained under or by virtue of article 98A, 103I or 103J.^F9,F8]]

(8) Paragraph (10) applies if—

(a)property is subject to a property freezing order made under article 147, an interim receiving order made under article 151, a prohibitory property order made under article 161 or an interim administration order made under article 167,

(b)a person acting as an insolvency practitioner incurs expenses in respect of property subject to the order, and

(c)he does not know (and has no reasonable grounds to believe) that the property is subject to the order.

(9) Paragraph (10) also applies if—

(a)property is subject to a property freezing order made under article 147, an interim receiving order made under article 151, a prohibitory property order made under article 161 or an interim administration order made under article 167,

(b)a person acting as an insolvency practitioner incurs expenses which are not ones in respect of property subject to the order, and

(c)the expenses are ones which (but for the effect of the order) might have been met by taking possession of and realising property subject to it.

(10) Whether or not he has seized or disposed of any property, he is entitled to payment of the expenses under article 191.

Insolvency practitioners: interpretation_I4

4.—(1) This article applies for the purposes of article 3.

(2) A person acts as an insolvency practitioner if he so acts within the meaning given by section 388 of the 1986 Act or Article 3 of the 1989 Order; but this is subject to paragraphs (3) to (5).

(3) The expression “person acting as an insolvency practitioner” includes the official receiver acting as receiver or manager of the property concerned.

(4) In applying section 388 of the 1986 Act under paragraph (2) above—

(a)the reference in section 388(2)(a) to a permanent or interim trustee in sequestration must be taken to include a reference to a trustee in sequestration;

(b)section 388(5) (which includes provision that nothing in the section applies to anything done by the official receiver or the Accountant in Bankruptcy) must be ignored.

(5) In applying Article 3 of the 1989 Order under paragraph (2) above, paragraph (5) (which includes provision that nothing in the Article applies to anything done by the official receiver) must be ignored.

(6) The following sub-paragraphs apply to references to Acts or Orders—

(a)the 1913 Act is the Bankruptcy (Scotland) Act 1913(3);

(b)the 1914 Act is the Bankruptcy Act 1914(4);

^F10(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)the 1986 Act is the Insolvency Act 1986(6);

[^F11 (da)the 2016 Act is the Bankruptcy (Scotland) Act 2016;^F11]

(e)the 1989 Order is the Insolvency (Northern Ireland) Order 1989(7).

(7) An award of sequestration is made on the date of sequestration within the meaning of section [^F1222(7) of the 2016^F12] Act.

Orders and regulations_I5

5.—(1) References in this article to subordinate legislation are to—

(a)any order under this Order (other than one falling to be made by a court);

(b)any regulations under this Order.

(2) Subordinate legislation—

(a)may make different provision for different purposes;

(b)may include supplementary, incidental, saving or transitional provisions.

(3) Any power to make subordinate legislation is exercisable by statutory instrument and, subject to paragraph (4), is subject to annulment in pursuance of a resolution of either House of Parliament.

(4) A statutory instrument containing regulations made under paragraph 6(2) of Schedule 1 is subject to annulment in pursuance of a resolution of the Scottish Parliament.

case PART 2 GIVING EFFECT IN ENGLAND AND WALES TO EXTERNAL REQUESTS IN CONNECTION WITH CRIMINAL INVESTIGATIONS OR PROCEEDINGS AND TO EXTERNAL ORDERS ARISING FROM SUCH PROCEEDINGS

CHAPTER 1 EXTERNAL REQUESTS

Action on receipt of external request in connection with criminal investigations or proceedings_I6

case6.—(1) Except where paragraph (2) applies, the Secretary of State may refer an external request in connection with criminal investigations or proceedings in the country from which the request was made and concerning relevant property in England or Wales [^F13to the Director of Public Prosecutions to process it.^F13]

(2) This paragraph applies where it appears to the Secretary of State that the request—

(a)is made in connection with criminal investigations or proceedings which relate to an offence involving serious or complex fraud, and

(b)concerns relevant property in England or Wales.

(3) Where paragraph (2) applies, the Secretary of State may refer the request to the Director of the Serious Fraud Office to process it.

(4) In this Chapter “the relevant Director” means the Director to whom an external request is referred under paragraph (1) or (3).

(5) The relevant Director may ask the overseas authority which made the request for such further information as may be necessary to determine whether the request is likely to satisfy either of the conditions in article 7.

(6) A request under paragraph (5) may include a request for statements which may be used as evidence.

(7) Where a request concerns relevant property which is in Scotland or Northern Ireland as well as England or Wales, so much of the request as concerns such property shall be dealt with under Part 3 or 4, respectively.

Conditions for Crown Court to give effect to external request_I7

case7.—(1) The Crown Court may exercise the powers conferred by article 8 if either of the following conditions is satisfied.

(2) The first condition is that—

(a)relevant property in England and Wales is identified in the external request;

(b)a criminal investigation has been started in the country from which the external request was made with regard to an offence, and

(c)there [^F14are reasonable grounds to suspect^F14] that the alleged offender named in the request has benefited from his criminal conduct.

(3) The second condition is that—

(a)relevant property in England and Wales is identified in the external request;

(b)proceedings for an offence have been started in the country from which the external request was made and not concluded, and

(c)there is reasonable cause to believe that the defendant named in the request has benefited from his criminal conduct.

(4) In determining whether the conditions are satisfied and whether the request is an external request within the meaning of the Act, the Court must have regard to the definitions in subsections (1), (4) to (8) and (11) of section 447 of the Act.

(5) If the first condition is satisfied, references in this Chapter to the defendant are to the alleged offender.

Restraint orders_I8

case 8. —(1) If either condition set out in article 7 is satisfied, the Crown Court may make an order (“a restraint order”) prohibiting any specified person from dealing with relevant property which is identified in the external request and specified in the order.

(2) A restraint order may be made subject to exceptions, and an exception may in particular—

(a)make provision for reasonable living expenses and reasonable legal expenses in connection with the proceedings seeking a restraint order or the registration of an external order;

(b)make provision for the purpose of enabling any person to carry on any trade, business, profession or occupation;

(c)be made subject to conditions.

(3) Paragraph (4) applies if—

(a)a court makes a restraint order, and

(b)the applicant for the order applies to the court to proceed under paragraph (4) (whether as part of the application for the restraint order or at any time afterwards).

(4) The court may make such order as it believes is appropriate for the purpose of ensuring that the restraint order is effective.

[^F15 (4A) Paragraphs (4B) and (4C) apply where the Crown Court makes a restraint order (by virtue of the first condition in article 7) as a result of a criminal investigation having been started in the country from which the external request was made with regard to an offence.

(4B) The court—

(a) must include in the restraint order a requirement for the applicant for the restraint order to report to the court on the progress of the investigation at such times and in such manner as the restraint order may specify (a “reporting requirement”); and

(b)must discharge the restraint order if proceedings for the offence are not started within a reasonable time (and this duty applies whether or not an application to discharge the restraint order is made under article 9(2)).

(4C) The duty under paragraph (4B)(a) does not apply if the court decides that, in the circumstances of the case, a reporting requirement should not be imposed, but the court—

(a)must give reasons for its decision; and

(b)may at any time vary the restraint order so as to include a reporting requirement (and this power applies whether or not an application to vary the restraint order is made under article 9(2)).^F15]

(5) A restraint order does not affect property for the time being subject to a charge under any of these provisions—

(a)section 9 of the Drug Trafficking Offences Act 1986(8);

(b)section 78 of the Criminal Justice Act 1988(9);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990(10);

(d)section 27 of the Drug Trafficking Act 1994(11);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996(12).

(6) Dealing with property includes removing it from England and Wales.

[^F16Restraint orders: power to retain seized property etc

8A.—(1) A restraint order may include provision authorising the detention of any property to which it applies if the property—

(a)is seized by an appropriate officer under a relevant seizure power; or

(b)is produced to an appropriate officer in compliance with a production order under—

(i)article 6 of the Proceeds of Crime Act 2002 (External Investigations) Order 2013; or

(ii)article 6 of the Proceeds of Crime Act 2002 (External Investigations) Order.

(2) Provision under paragraph (1) may, in particular—

(a)relate to specified property, to property of a specified description or to all property to which the restraint order applies;

(b)relate to property that has already been seized or produced or to property that may be seized or produced in future.^F16]

Application, discharge and variation of restraint orders_I9

case9.—(1) A restraint order—

(a)may be made only on an application by the relevant Director;

(b)may be made on an ex parte application to a judge in chambers.

(2) An application to discharge or vary a restraint order or an order under article 8(4) may be made to the Crown Court by—

(a)the relevant Director;

(b)any person affected by the order.

(3) Paragraphs (4) to (7) apply to an application under paragraph (2).

(4) The court—

(a)may discharge the order;

(b)may vary the order.

(5) If the condition in article 7 which was satisfied was that proceedings were started, the court must discharge the order if, at the conclusion of the proceedings, no external order has been made.

[^F17 (6) If the condition in article 7 which was satisfied was that proceedings were started, the court must discharge the order if within a reasonable time—

(a)an external order has not been registered under Chapter 2 of this Part, or

(b)there has been no direction by the Crown Court in accordance with Article 15 of the 2014 Regulations to register an overseas confiscation order which applies to property specified in the restraint order.^F17]

(7) If the condition in article 7 which was satisfied was that an investigation was started, the court must discharge the order if within a reasonable time proceedings for the offence are not started.

Appeal to Court of Appeal about restraint orders_I10

case10.—(1) If on an application for a restraint order the Crown Court decides not to make one, the relevant Director may appeal to the Court of Appeal against the decision.

(2) If an application is made under article 9(2) in relation to a restraint order or an order under article 8(4), the following persons may appeal to the Court of Appeal in respect of the Crown Court’s decision on the application—

(a)the relevant Director;

(b)any person affected by the order.

(3) On an appeal under paragraph (1) or (2) the Court of Appeal may—

(a)confirm the decision, or

(b)make such order as it believes is appropriate.

Appeal to [^F18Supreme Court^F18] about restraint orders_I11

case11.—(1) An appeal lies to the [^F18Supreme Court^F18] from a decision of the Court of Appeal on an appeal under article 10.

(2) An appeal under this article lies at the instance of any person who was a party to the proceedings before the Court of Appeal.

(3) On an appeal under this article the [^F18Supreme Court^F18] may—

(a)confirm the decision of the Court of Appeal, or

(b)make such order as it believes is appropriate.

[^F19Detention of property pending appeal

11A.—(1) This article applies where—

(a)a restraint order includes provision under article 8A authorising the detention of property; and

(b)the restraint order is discharged under article 9(4)(a) or 10(3)(b).

(2) This article also applies where—

(a)a restraint order includes provision under article 8A authorising the detention of property; and

(b)the restraint order is varied under article [^F20 9(4)(b)^F20] or 10(3)(b) so as to omit any such provision.

(3) The property may be detained until there is no further possibility of an appeal against—

(a)the decision to discharge or vary the restraint order; or

(b)any decision made on an appeal against that decision.^F19]

Seizure in pursuance of restraint order

case^F2112. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Hearsay evidence in restraint proceedings_I12

13.—(1) Evidence must not be excluded in restraint proceedings on the ground that it is hearsay (of whatever degree).

(2) Sections 2 to 4 of the Civil Evidence Act 1995(13) apply in relation to restraint proceedings as those sections apply in relation to civil proceedings.

(3) Restraint proceedings are proceedings—

(a)for a restraint order;

(b)for the discharge or variation of a restraint order;

(c)on an appeal under article 10 or 11.

(4) Hearsay is a statement which is made otherwise than by a person while giving oral evidence in the proceedings and which is rendered as evidence of the matters stated.

(5) Nothing in this article affects the admissibility of evidence which is admissible apart from this article.

Supplementary (restraint orders)_I13

14.—(1) The registration Acts—

(a)apply in relation to restraint orders as they apply in relation to orders which affect land and are made by the court for the purpose of enforcing judgments or recognisances;

(b)apply in relation to applications for restraint orders as they apply in relation to other pending land actions.

(2) The registration Acts are—

(a)the Land Charges Act 1972(14);

(b)the Land Registration Act 2002(15).

(3) But no notice may be entered in the register of title under the Land Registration Act 2002 in respect of a restraint order.

Appointment of management receivers_I14

case15.—(1) Paragraph (2) applies if—

(a)the Crown Court makes a restraint order, and

(b)the relevant Director applies to the court to proceed under paragraph (2) (whether as part of the application for the restraint order or at any time afterwards).

(2) The Crown Court may by order appoint a receiver in respect of any property which is specified in the restraint order.

Powers of management receivers_I15

case16.—(1) If the court appoints a receiver under article 15 it may act under this article on the application of the relevant Director.

(2) The court may by order confer on the receiver the following powers in relation to any property which is specified in the restraint order—

(a)power to take possession of the property;

(b)power to manage or otherwise deal with the property;

(c)power to start, carry on or defend any legal proceedings in respect of the property;

(d)power to realise so much of the property as is necessary to meet the receiver’s remuneration and expenses.

(3) The court may by order confer on the receiver power to enter any premises in England and Wales and to do any of the following—

(a)search for or inspect anything authorised by the court;

(b)make or obtain a copy, photograph or other record of anything so authorised;

(c)remove anything which the receiver is required or authorised to take possession of in pursuance of an order of the court.

(4) The court may by order authorise the receiver to do any of the following for the purpose of the exercise of his functions—

(a)hold property;

(b)enter into contracts;

(c)sue and be sued;

(d)employ agents;

(e)execute powers of attorney, deeds or other instruments;

(f)take any other steps the court thinks appropriate.

(5) The court may order any person who has possession of property which is specified in the restraint order to give possession of it to the receiver.

(6) The court—

(a)may order a person holding an interest in property which is specified in the restraint order to make to the receiver such payment as the court specifies in respect of a beneficial interest held by the defendant or the recipient of a tainted gift;

(b)may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

(7) Paragraphs (2), (5) and (6) do not apply to property for the time being subject to a charge under any of these provisions—

(a)section 9 of the Drug Trafficking Offences Act 1986(16);

(b)section 78 of the Criminal Justice Act 1988(17);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990(18);

(d)section 27 of the Drug Trafficking Act 1994(19);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996(20).

(8) The court must not—

(a)confer the power mentioned in paragraph (2)(b) or (d) in respect of property, or

(b)exercise the power conferred on it by paragraph (6) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

[^F22 (8A) Paragraph (8), so far as relating to the power mentioned in paragraph (2)(b), does not apply to property which—

(a)is perishable; or

(b)ought to be disposed of before its value diminishes.^F22]

(9) The court may order that a power conferred by an order under this article is subject to such conditions and exceptions as it specifies.

(10) Managing or otherwise dealing with property includes—

(a)selling the property or any part of it or interest in it;

(b)carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

(c)incurring capital expenditure in respect of the property.

Restrictions relating to restraint orders_I16

case17.—(1) Paragraphs (2) to (4) apply if a court makes a restraint order.

(2) No distress may be levied against any property which is specified in the order except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

(3) If the order applies to a tenancy of any premises, no landlord or other person to whom rent is payable may exercise a right within paragraph (4) except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

(4) A right is within this paragraph if it is a right of forfeiture by peaceable re-entry in relation to the premises in respect of any failure by the tenant to comply with any term or condition of the tenancy.

(5) If a court in which proceedings are pending in respect of any property is satisfied that a restraint order has been applied for or made in respect of the property, the court may either stay the proceedings or allow them to continue on any terms it thinks fit.

(6) Before exercising any power conferred by paragraph (5), the court must give an opportunity to be heard to—

(a)the relevant Director, and

(b)any receiver appointed in respect of the property under article 15 [^F23or 27^F23] .

[^F24CHAPTER 1A External requests: search and seizure powers

Conditions for exercise of powers

17A.—(1) An appropriate officer may exercise the power conferred by article 17B if satisfied that either of the following conditions is met.

(2) The first condition is that—

(a)a criminal investigation has been started in the country from which the external request was made with regard to an offence;

^F25(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)proceedings for the offence have not yet been started against the person in that country; and

(d)a restraint order is in force in respect of any realisable property.

(3) The second condition is that—

(a)proceedings for an offence have been started in the country from which the external request was made; and

(d)a restraint order is in force in respect of any realisable property.

(4) In relation to the first condition in this article, subject to article 17B(4), references in this Chapter to the defendant are to the person mentioned in that condition.

Power to seize property

17B.—(1) On being satisfied that either condition in article 17A is met, an appropriate officer may seize any realisable property if the officer has reasonable grounds for suspecting that—

(a)the property may otherwise be made unavailable for satisfying any external order that has been or may be made against the defendant; or

(b)the value of the property may otherwise be diminished as a result of conduct by the defendant or any other person.

(2) But the officer may not [^F26 under paragraph (1)^F26] seize exempt property.

(3) “Exempt property” means—

(a)such tools, books, vehicles and other items of equipment as are necessary to the defendant for use personally in the defendant’s employment, business or vocation;

(b)such clothing, bedding, furniture, household equipment, provisions or other things as are necessary for satisfying the basic domestic needs of the defendant and the defendant’s family.

(4) In relation to realisable property which is free property held by the recipient of a tainted gift, references in paragraph (3) to the defendant are to be read as references to the recipient of that gift.

[^F27 (4A) On being satisfied as mentioned in article 17A(1) an appropriate officer may seize any free property if the officer has reasonable grounds for suspecting that it is a cryptoasset-related item.

(4B) A “cryptoasset-related item” is an item of property that is, or that contains or gives access to information that is, likely to assist in the seizure under paragraph (1) of any cryptoasset.

(4C) The circumstances in which a cryptoasset is “ seized ” for the purposes of paragraph (1) include circumstances in which it is transferred into a crypto wallet controlled by the appropriate officer.

(4D) If an appropriate officer is lawfully on any premises, the officer may, for the purpose of—

(a)determining whether any property is a cryptoasset-related item, or

(b)enabling or facilitating the seizure under paragraph (1) of any cryptoasset,

require any information which is stored in any electronic form and accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible, or from which it can readily be produced in a visible and legible form.

(4E) But paragraph (4D) does not authorise an appropriate officer to require a person to produce information which the person would be entitled to refuse to provide on grounds of legal professional privilege in proceedings in the High Court.

(4F) Where an appropriate officer has seized a cryptoasset-related item under paragraph (4A), they may use any information obtained from it for the purpose of—

(a)identifying or gaining access to a crypto wallet, and

(b)by doing so, enabling or facilitating the seizure under paragraph (1) of any cryptoassets.^F27]

(5) “Free property” has the same meaning as in section 82 of the Act.

(6) “Tainted gift” has the same meaning as in section 77 of the Act.

(7) The power conferred by this article may be exercised only with the appropriate approval under article 17F unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

Search power: premises

17C.—(1) If an appropriate officer is lawfully on any premises the officer may search the premises for the purpose of finding any property which—

(a)the officer has reasonable grounds for suspecting may be found there; and

(b)if found there, the officer intends to seize under article 17B.

(2) The power conferred by this article may be exercised only with the appropriate approval under article 17F unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

(3) “Premises” has the meaning given by section 23 of the Police and Criminal Evidence Act 1984 .

Search power: people

17D.—(1) An appropriate officer may exercise the following powers if the officer has reasonable grounds for suspecting that a person is carrying property that may be seized under article 17B.

(2) The officer may, so far as the officer thinks it necessary or expedient for the purpose of seizing the property under that article, require the person—

(a)to permit a search of any property with the person;

(b)to permit a search of the person.

(3) An officer exercising a power under paragraph (2) may detain the person for so long as is necessary for its exercise.

(4) A power conferred by this article may be exercised only with the appropriate approval under article 17F unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

(5) This article does not require a person to submit to an intimate search or strip search (within the meaning of section 164 of the Customs and Excise Management Act 1979).

Search power: vehicles

17E.—(1) The powers specified in paragraph (4) are exercisable if—

(a)an appropriate officer has reasonable grounds for suspecting that a vehicle contains property that may be seized under article 17B; and

(b)it appears to the officer that the vehicle is under the control of a person who is in or in the vicinity of the vehicle.

(2) The powers are exercisable only if the vehicle is—

(a)in any place to which, at the time of the proposed exercise of the powers, the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission; or

(b)in any other place to which at that time people have ready access but which is not a dwelling.

(3) But if the vehicle is in a garden or yard or other land occupied with and used for the purposes of a dwelling, the officer may exercise the powers under paragraph (4) only if the officer has reasonable grounds for believing—

(a)that the person does not reside in the dwelling; and

(b)that the vehicle is not in the place in question with the express or implied permission of another who resides in the dwelling.

(4) The officer may, so far as the officer thinks it necessary or expedient for the purpose of seizing the property under article 17B, require the person to—

(a)permit entry to the vehicle;

(b)permit a search of the vehicle.

(5) An officer exercising a power under paragraph (4) may detain the vehicle for so long as is necessary for its exercise.

(6) A power conferred by this article may be exercised only with the appropriate approval under article 17F unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

Appropriate approval _cross-notes

17F.—(1) This article has effect for the purposes of articles 17B to 17E.

(2) The appropriate approval, in relation to the exercise of a power by an appropriate officer, means the approval of a justice of the peace or (if that is not practicable in any case) the approval of a senior officer.

(3) A senior officer means—

(a)in relation to the exercise of a power by an officer of Revenue and Customs, an officer of Revenue and Customs of a rank designated by the Commissioners for Her Majesty’s Revenue and Customs as equivalent to that of a senior police officer;

(b)in relation to the exercise of a power by a National Crime Agency officer, the Director General of the National Crime Agency or any other National Crime Agency officer authorised by the Director General (whether generally or specifically) for this purpose;

[^F28 (ba)in relation to the exercise of a power by an SFO officer, the Director of the Serious Fraud Office;^F28]

(c)in relation to the exercise of a power by a constable, a senior police officer;

(d)in relation to the exercise of a power by an accredited financial investigator, an accredited financial investigator who is under the direction of a relevant Director as defined in section 352(5A) of the Act.

(4) A senior police officer means a police officer of at least the rank of inspector.

Exercise of powers without judicial approval

17G.—(1) An appropriate officer must give a written report to the appointed person in any case where—

(a)the officer seizes property under article 17B without the approval of a justice of the peace; and

(b)any of the property seized is not detained for more than 48 hours.

(2) An appropriate officer must also give a written report to the appointed person in any case where—

(a)the officer exercises any of the powers conferred by articles 17C to 17E without the approval of a justice of the peace; and

(b)no property is seized under article 17B.

(3) A report under this article must give particulars of the circumstances which led the officer to believe that—

(a)the powers were exercisable; and

(b)it was not practicable to obtain the approval of a justice of the peace.

(4) The appointed person means a person appointed for the purposes of this article by the Secretary of State.

(5) The appointed person must not be a person employed under or for the purposes of a government department; and the terms and conditions of appointment, including any remuneration or expenses to be paid, are to be determined by the Secretary of State.

(6) The period of 48 hours mentioned in paragraph (1)(b) is to be calculated in accordance with paragraph (7).

(7) In calculating a period of 48 hours in accordance with this paragraph, no account is to be taken of—

(a)any Saturday or Sunday;

(b)Christmas Day;

(c)Good Friday; or

(d)any day that is a bank holiday under the Banking and Financial Dealings Act 1971 in England and Wales.

Report by appointed person on exercise of powers

17H.—(1) As soon as possible after the end of each financial year, the person appointed under article 17G(4) must prepare a report for that year.

(2) “Financial year” means—

(a)the period beginning with the day on which this article comes into force and ending with the next 31st March (which is the first financial year); and

(b)each subsequent period of twelve months beginning with 1st April.

(3) The report must give the appointed person’s opinion as to the circumstances and manner in which the powers conferred by articles 17B to 17E are being exercised in cases where the officer who exercised them is required to give a report under article 17G.

(4) The report may make any recommendations the appointed person considers appropriate.

(5) The appointed person must send a copy of the report to the Secretary of State.

(6) The Secretary of State must—

(a)publish any report received under paragraph (5); and

(b)lay a copy before Parliament.

(7) Before acting under paragraph (6) the Secretary of State must exclude from the report any matter which the Secretary of State thinks is likely to prejudice any criminal investigation or criminal proceedings either in the United Kingdom or abroad (including the country from which the external request was made).

(8) If the Secretary of State excludes any matter from the report the Secretary of State must comply with paragraph (6) in relation to the whole of the report as soon as the Secretary of State thinks that the excluded matter is no longer likely to prejudice any criminal investigation or criminal proceedings.

Initial detention of seized property

17I.—(1) This article applies if an appropriate officer seizes property under article 17B.

(2) The property may be detained initially for a period of 48 hours.

(3) The period of 48 hours is to be calculated in accordance with article 17G(7).

Further detention pending variation of restraint order

17J. This article applies if—

(a)property is detained under article 17I;

(b)a restraint order is in force in respect of the property; and

(c)the restraint order does not include provision under article 8A authorising the detention of the property.

(2) If within the period mentioned in article 17I an application is made for the restraint order to be varied so as to include provision under article 8A authorising detention of the property, the property may be detained until the application is determined or otherwise disposed of.

(3) If such an application is made within that period and the application is refused, the property may be detained until there is no further possibility of an appeal against—

(a)the decision to refuse the application; or

(b)any decision made on an appeal against that decision.

[^F29 (4) Exempt property seized under article 17B(4A) may be detained under paragraphs (2) and (3) only with the approval of a senior officer.

(5) In paragraph (4)—

“ exempt property ” has the meaning given in article 17B(3) (reading references there to the defendant as references to the person by whom the property is held) ;

“ senior officer ” has the meaning given in article 17F(3) (and for this purpose, the powers under subsections (2) and (3) to detain property are to be treated as exercised by the appropriate officer who seized the property). ^F29]

Release of property

17K. This article applies in relation to property which—

(a)has been seized by an appropriate officer under article 17B; and

(b)is detained under or by virtue of article 17I or 17J.

(2) The property must be released if at any time an appropriate officer decides that the detention condition is no longer met.

(3) The detention condition is met for so long as—

(a)either condition in article 17A is met; and

(b)there are reasonable grounds for the suspicion mentioned in article 17B(1) [^F30 or (4A)^F30] .

(4) Nothing in this article requires property to be released if there is a power to detain it otherwise than under or by virtue of article 17I or 17J.

(5) Nothing in this article affects the operation of any power or duty to release property that arises apart from this article.

[^F31 (6) If a cryptoasset-related item, as defined by article 17B(4B), which has been released is not claimed within the period of a year beginning with the date on which it was released, the appropriate officer may—

(a)retain the item and deal with it as they see fit,

(b)dispose of the item, or

(c)destroy the item.

(7) The powers in paragraph (6) may be exercised only—

(a)where the appropriate officer has taken reasonable steps to notify—

(i)the person from whom the item was seized, and

(ii)any other persons who the appropriate officer has reasonable grounds to believe have an interest in the item, that the item has been released, and

(b)with the approval of a senior officer.

(8) “Senior officer” in paragraph (7)(b) has the meaning given in article 17F(3).

(9) Any proceeds of a disposal of the item are to be paid into the Consolidated Fund.^F31]

Codes of Practice

17L. A Code of Practice made under section 47S of the Act (codes of practice) applies to the powers conferred by this Chapter as it applies to the powers conferred by Part 2 of the Act in relation to search and seizure and detention of property.^F24]

CHAPTER 2 EXTERNAL ORDERS

Action on receipt of external order in connection with criminal convictions_I17

case18.—(1) Except where paragraph (2) applies, the Secretary of State may refer an external order arising from a criminal conviction in the country from which the order was sent and concerning relevant property in England or Wales [^F32to the Director of Public Prosecutions to process it.^F32]

(2) This paragraph applies where it appears to the Secretary of State that—

(a)the property or sum of money specified in the order was found, or was believed, to have been obtained as a result of, or in connection with, criminal conduct involving serious or complex fraud, and

(b)the order concerns relevant property in England or Wales.

(3) Where paragraph (2) applies, the Secretary of State may refer the order to the Director of the Serious Fraud Office to process it.

(4) In this Chapter “the relevant Director” means the Director to whom an external order is referred under paragraph (1) or (3).

(5) Where an order concerns relevant property which is in Scotland or Northern Ireland as well as England or Wales, so much of the request as concerns such property shall be dealt with under Part 3 or 4, respectively.

Authentication by the overseas court_I18

case19.—(1) Paragraph (2) applies where an overseas court has authenticated its involvement in—

(a)any judgment,

(b)any order,

(c)any other document concerned with such a judgment or order or proceedings relating to it.

(2) Where this paragraph applies, any statement in the judgment, order or document is admissible in evidence in proceedings under this Chapter.

Applications to give effect to external orders_I19

20.—(1) An application may be made by the relevant Director to the Crown Court to give effect to an external order.

(2) No application to give effect to such an order [^F33under this Order^F33] may be made otherwise than under paragraph (1).

(3) An application under paragraph (1)—

(a)shall include a request to appoint the relevant Director as the enforcement authority for the order;

(b)may be made on an ex parte application to a judge in chambers.

Conditions for Crown Court to give effect to external orders_I20

case21.—(1) The Crown Court must decide to give effect to an external order by registering it where all of the following conditions are satisfied.

(2) The first condition is that the external order was made consequent on the conviction of the person named in the order and no appeal is outstanding in respect of that conviction.

(3) The second condition is that the external order is in force and no appeal is outstanding in respect of it.

(4) The third condition is that giving effect to the external order would not be incompatible with any of the Convention rights (within the meaning of the Human Rights Act 1998(21)) of any person affected by it.

(5) The fourth condition applies only in respect of an external order which authorises the confiscation of property other than money that is specified in the order.

(6) That condition is that the specified property must not be subject to a charge under any of the following provisions—

(a)section 9 of the Drug Trafficking Offences Act 1986(22);

(b)section 78 of the Criminal Justice Act 1988(23);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990(24);

(d)section 27 of the Drug Trafficking Act 1994(25);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996(26).

(7) In determining whether the order is an external order within the meaning of the Act, the Court must have regard to the definitions in subsections (2), (4), (5), (6), (8) and (10) of section 447 of the Act.

(8) In paragraph (3) “appeal” includes—

(a)any proceedings by way of discharging or setting aside the order; and

(b)an application for a new trial or stay of execution.

Registration of external orders_I21

case22.—(1) Where the Crown Court decides to give effect to an external 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; and

(c)appoint the relevant Director as the enforcement authority for the order.

(2) Only an external order registered by the Crown Court may be implemented under this Chapter.

(3) The Crown Court may cancel the registration of the external order, or vary the property to which it applies, on an application by the relevant Director or any person affected by it if, or to the extent that, the court is of the opinion that any of the conditions in article 21 is not satisfied.

(4) The Crown Court must cancel the registration of the external order, on an application by the relevant Director or any person affected by it, if it appears to the court that the order has been satisfied—

(a)in the case of an order for the recovery of a sum of money specified in it, by payment of the amount due under it, or

(b)in the case of an order for the recovery of specified property, by the surrender of the property, or

(c)by any other means.

(5) Where the registration of an external order is cancelled or varied under paragraph (3) or (4), the Crown Court must provide for notice of this to be given to the relevant Director and any person affected by it.

Appeal to Court of Appeal about external orders_I22

23.—(1) If on an application for the Crown Court to give effect to an external order by registering it, the court decides not to do so, the relevant Director may appeal to the Court of Appeal against the decision.

(2) If an application is made under article 22(3) or (4) in relation to the registration of an external order, the following persons may appeal to the Court of Appeal in respect of the Crown Court’s decision on the application—

(a)the relevant Director;

(b)any person affected by the registration.

(3) On an appeal under paragraph (1) or (2) the Court of Appeal may—

(a)confirm or set aside the decision to register; or

(b)direct the Crown Court to register the external order (or so much of it as relates to property other than to which article 21(6) applies).

Appeal to [^F34Supreme Court^F34] about external orders_I23

24.—(1) An appeal lies to the [^F34Supreme Court^F34] from a decision of the Court of Appeal on an appeal under article 23.

(2) An appeal under this article lies at the instance of any person who was a party to the proceedings before the Court of Appeal.

(3) On an appeal under this article the [^F34Supreme Court^F34] may—

(a)confirm or set aside the decision of the Court of Appeal, or

(b)direct the Crown Court to register the external order (or so much of it as relates to property other than property to which article 21(6) applies).

[^F35Orders for securing compliance with external order

24A.—(1) This article applies where the Crown Court registers an external order.

(2) The court may make such order as it believes is appropriate for the purpose of ensuring that the external order is effective (a “compliance order”).

(3) The court must consider whether to make a compliance order—

(a)when it registers the external order; and

(b)if it does not make a compliance order then, at any later time (while the registration of the external order is still in effect) on an application made by the relevant Director.

(4) The court may discharge or vary a compliance order on an application made by—

(a)the relevant Director;

(b)any person affected by the compliance order.^F35]

[^F35Appeal to Court of Appeal against orders under article 24A

24B.—(1) If on an application under article 24A(3)(b) the Crown Court decides not to make a compliance order, the relevant Director may appeal to the Court of Appeal against the decision.

(2) The following persons may appeal to the Court of Appeal in respect of the Crown Court’s decision to make, discharge or vary a compliance order—

(a)the relevant Director;

(b)any person affected by the compliance order.

(3) On an appeal under paragraph (1) or (2) the Court of Appeal may—

(a)confirm the decision; or

(b)make such order as it believes is appropriate.

(4) In this article “compliance order” means an order made under article 24A. ^F35]

[^F35Appeal to Supreme Court against orders under article 24A

24C.—(1) An appeal lies to the Supreme Court against a decision of the Court of Appeal under article 24B.

(2) An appeal under this article lies at the instance of any person who was a party to the proceedings before the Court of Appeal.

(3) On an appeal under this article, the Supreme Court may—

(a)confirm the decision of the Court of Appeal; or

(b)make such order as it believes is appropriate.^F35]

Sums in currency other than sterling_I24

25.—(1) This article applies where the external order which is registered under article 22 specifies a sum of money.

(2) If the sum of money which is specified is expressed in a currency other than sterling, the sum of money to be recovered is to be taken to be the sterling equivalent calculated in accordance with the rate of exchange prevailing at the end of the working day immediately preceding the day when the Crown Court registered the external order under article 22.

(3) The sterling equivalent must be calculated by the relevant Director.

(4) The notice referred to in article 22(1)(b) and (5) must set out the amount in sterling which is to be paid.

(5) In this article “working day” means any day other than—

(a)a Saturday or Sunday;

(b)Christmas Day;

(c)Good Friday;

(d)any day that is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971(27).

Time for payment_I25

26.—(1) This article applies where the external order is for the recovery of a specified sum of money.

(2) Subject to [^F36paragraphs (2A) to (6), the full amount^F36] ordered to be paid under—

(a)an external order that has been registered under article 22, or

(b)where article 25(2) applies, the notice under article 22(1)(b),

must be paid on the date on which the notice under article 22(1)(b) is delivered to the person affected by it.

[^F37 (2A) If the Crown Court which registered the external order is satisfied that the person affected by the external order is unable to pay the full amount on the date mentioned in paragraph (2), it may make an order requiring whatever cannot be paid on that date to be paid—

(a)in a specified period; or

(b)in specified periods each of which relates to a specified amount.

(2B) A specified period—

(a)must start with the date mentioned in paragraph (2); and

(b)must not exceed three months.

(2C) The court may make an order extending the period (for all or any part or parts of the amount in question) if—

(a)within any specified period the person affected by the external order applies to the Crown Court for that period to be extended; and

(b)the court is satisfied that, despite having made all reasonable efforts, the person is unable to pay the amount to which the specified period relates within that period.

(2D) An extended period—

(a)must start with the date mentioned in paragraph (2); and

(b)must not exceed six months.

(2E) An order under paragraph (2C)—

(a)may be made after the end of the specified period to which it relates; but

(b)must not be made after the end of the period of six months starting with the date mentioned in paragraph (2).

(2F) Periods specified or extended under this article must be such that, where the court believes that the person affected by the external order will by a particular day be able—

(a)to pay the amount remaining to be paid; or

(b)to pay an amount towards what remains to be paid,

that amount is required to be paid no later than that day.

(2G) The court must not make an order under paragraph (2A) or (2C) unless it gives the relevant Director an opportunity to make representations.^F37]

(3) Where there is an appeal under article 23 or 24 and a sum falls to be paid when the appeal has been determined or withdrawn, the duty to pay is delayed until the day on which the appeal is determined or withdrawn.

(4) If the person affected by an external order which has been registered shows that he needs time to pay the amount ordered to be paid, the Crown Court which registered the order may make an order allowing payment to be made in a specified period.

(5) The specified period—

(a)must start with the day on which the notice under article 22(1)(b) was delivered to the person affected by the order or the day referred to in paragraph (3), as the case may be, and

(b)must not exceed six months.

(6) If within the specified period the person affected by an external order applies to the Crown Court which registered the order for the period to be extended and the court believes that there are exceptional circumstances, it may make an order extending the period.

(7) The extended period—

(a)must start with the day on which the notice under article 22(1)(b) was delivered to the person affected by it or the day referred to in paragraph (3), as the case may be, and

(b)must not exceed 12 months.

(8) An order under paragraph (6)—

(a)may be made after the end of the specified period, but

(b)must not be made after the end of the extended period.

(9) The court must not make an order under paragraph (4) or (6) unless it gives the relevant Director an opportunity to make representations.

Appointment of enforcement receivers_I26

case27.—(1) This article applies if—

(a)an external order is registered,

(b)it is not satisfied, and

(c)in the case of an external order for the recovery of a specified sum of money, any period specified by order under article 26 has expired.

^F38(2) On the application of the relevant Director ... the Crown Court may by order appoint a receiver in respect of—

(a)where the external order is for the recovery of a specified sum of money, realisable property;

(b)where the external order is for the recovery of specified property, that property.

Powers of enforcement receivers in respect of monetary external orders_I27

case^F3928.—(1) ) If the court appoints a receiver under article 27, it may act under this article on the application of the relevant Director ... where the external order is for the recovery of a specified sum of money.

(2) The court may by order confer on the receiver the following powers in relation to any realisable property—

(a)power to take possession of the property;

(b)power to manage or otherwise deal with the property;

(c)power to realise the property, in such manner as the court may specify;

(d)power to start, carry on or defend any legal proceedings in respect of the property.

(3) The court may by order confer on the receiver power to enter any premises in England and Wales and to do any of the following—

(a)search for or inspect anything authorised by the court;

(b)make or obtain a copy, photograph or other record, of anything so authorised;

(c)remove anything which the receiver is required or authorised to take possession of in pursuance of an order of the court.

(4) The court may by order authorise the receiver to do any of the following for the purposes of the exercise of his functions—

(a)hold property;

(b)enter into contracts;

(c)sue and be sued;

(d)employ agents;

(e)execute powers of attorney, deeds or other instruments;

(f)take any other steps the court thinks appropriate.

(5) The court may order any person who has possession of realisable property to give possession of it to the receiver.

(6) The court—

(a)may order a person holding an interest in realisable property to make to the receiver such payment as the court specifies in respect of a beneficial interest held by the defendant or the recipient of a tainted gift;

(b)may (on payment being made) by order transfer, grant or extinguish any interest in the property.

(7) Paragraphs (2), (5) and (6) do not apply to property for the time being subject to a charge under any of these provisions—

(a)section 9 of the Drug Trafficking Offences Act 1986;

(b)section 78 of the Criminal Justice Act 1988;

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990;

(d)section 27 of the Drug Trafficking Act 1994;

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996.

(8) The court must not—

(a)confer the power mentioned in paragraph (2)(b) or (c) in respect of property, or

(b)exercise the power conferred on it by paragraph (6) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

[^F40 (8A) Paragraph (8), so far as relating to the power mentioned in paragraph (2)(b), does not apply to property which—

(a)is perishable; or

(b)ought to be disposed of before its value diminishes.^F40]

(9) The court may order that a power conferred by an order under this article is subject to such conditions and exceptions as it specifies.

(10) Managing or otherwise dealing with property includes—

(a)selling the property or any part of it or interest in it;

(b)carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

(c)incurring capital expenditure in respect of the property.

Powers of enforcement receivers in respect of external orders for the recovery of specified property_I28

^F41 29. —(1) If the court appoints a receiver under article 27, it may act under this article on the application of the relevant Director ... where the external order is for the recovery of property specified in the order (“the specified property”).

(2) The court may by order confer on the receiver the following powers in relation to the specified property—

(a)power to take possession of the property;

(b)power to manage or otherwise deal with the property;

(c)power to realise the property, in such manner as the court may specify;

(d)power to start, carry on or defend any legal proceedings in respect of the property;

[^F42 (e)as far as the property consists of cryptoassets, power to destroy the property.^F42]

(3) The court may by order confer on the receiver power to enter any premises in England and Wales and to do any of the following—

(a)search for or inspect anything authorised by the court;

(b)make or obtain a copy, photograph or other record of anything so authorised;

(c)remove anything which the receiver is required or authorised to take possession of in pursuance of an order of the court.

(4) The court may by order authorise the receiver to do any of the following for the purposes of the exercise of his functions—

(a)hold property;

(b)enter into contracts;

(c)sue and be sued;

(d)employ agents;

(e)execute powers of attorney, deeds or other instruments;

(f)take any other steps the court thinks appropriate.

(5) The court may order any person who has possession of the specified property to give possession of it to the receiver.

(6) The court—

(a)may order a person holding an interest in the specified property to make to the receiver such payment as the court specifies in respect of a beneficial interest held by the defendant or the recipient of a tainted gift;

(b)may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

(7) The court must not—

(a)confer the power mentioned in paragraph (2)(b) [^F43, (c) or (e)^F43] in respect of property, or

(b)exercise the power conferred on it by paragraph (6) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

[^F44 (7A) Paragraph (7), so far as relating to the power mentioned in paragraph (2)(b), does not apply to property which—

(a)is perishable; or

(b)ought to be disposed of before its value diminishes.^F44]

(8) The court may order that a power conferred by an order under this article is subject to such conditions and exceptions as it specifies.

[^F45 (8A) The court may confer the power mentioned in paragraph (2)(e) only where—

(a)it is not reasonably practicable to realise the cryptoassets in question, or

(b)there are reasonable grounds to believe that the realisation of the cryptoassets would be contrary to the public interest, having regard in particular to how likely it is that the entry of the cryptoassets into general circulation would facilitate criminal conduct by any person.

(8B) An order conferring that power—

(a)must set out the court’s assessment of the market value of the cryptoassets to which it relates;

(b)may confer power to destroy the cryptoassets only to the extent that their market value, as set out in the order, is less than or equal to the amount remaining to be paid under the external order.

(8C) If the receiver destroys any cryptoassets in the exercise of that power, the defendant is to be treated as having paid, towards satisfaction of the external order, an amount equal to the market value, as set out in the order, of the cryptoassets which have been destroyed.^F45]

(9) Managing or otherwise dealing with property includes—

(a)selling the property or any part of it or interest in it;

(b)carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

(c)incurring capital expenditure in respect of the property.

Appointment of Director of Agency’s receivers

^F4630. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Powers of Director of Agency’s receivers in respect of monetary external orders

^F4631. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Powers of Director of Agency’s receivers in respect of external orders for the recovery of specified property

^F4632. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Application of sums by enforcement receivers_I29

33.—(1) This article applies to sums which are in the hands of a receiver appointed under article 27 if they are—

(a)the proceeds of the realisation of property under article 28 or 29;

(b)where article 28 applies, sums (other than those mentioned in sub-paragraph (a)) in which the defendant holds an interest.

(2) The sums must be applied as follows—

(a)first, they must be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under this paragraph by virtue of article 3;

(b)second, they must be applied in making any payments directed by the Crown Court;

(c)third, they must be applied on the defendant’s behalf towards satisfaction of the external order.

(3) If the amount payable under the external order has been fully paid and any sums remain in the receiver’s hands he must distribute them—

(a)among such persons who held (or hold) interests in the property concerned as the Crown Court directs; and

(b)in such proportions as it directs.

(4) Before making a direction under paragraph (3) the court must give persons who held (or hold) interests in the property concerned a reasonable opportunity to make representations to it.

(5) For the purposes of paragraphs (3) and (4) the property concerned is—

(a)the property represented by the proceeds mentioned in paragraph (1)(a);

(b)the sums mentioned in paragraph (1)(b).

(6) The receiver applies sums as mentioned in paragraph (2)(c) by paying them to the relevant Director on account of the amount payable under the order.

Sums received by relevant Director_I30

34.—(1) This article applies if a relevant Director receives sums on account of the amount payable under a registered external order or the value of the property specified in the order.

(2) The relevant Director’s receipt of the sums reduces the amount payable under the order, but he must apply the sums received as follows.

(3) First he must apply them in payment of such expenses incurred by a person acting as an insolvency practitioner as—

(a)are payable under this paragraph by virtue of article 3, but

(b)are not already paid under article 33(2)(a).

(4) He must next apply them—

(a)first, in payment of the remuneration and expenses of a receiver appointed under article 15 to the extent that they have not been met by virtue of the exercise by that receiver of a power conferred under article 16(2)(d);

(b)second, in payment of the remuneration and expenses of the receiver appointed under article 27,

[^F47 (c)third, in payment to an appropriate officer of any amount to which the officer is entitled by virtue of article 48B(3).^F47]

(5) Any sums which remain after the relevant Director has made any payments required by the preceding provisions of this article must be paid into the Consolidated Fund.

(6) Paragraph (4) does not apply if the receiver is a member of the staff of [^F48the Crown Prosecution Service or the Serious Fraud Office^F48] ; and it is immaterial whether he is a permanent or temporary member or he is on secondment from elsewhere.

Application of sums by Director of Agency’s receivers

^F4935. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Application of sums received by the Director of the Agency

^F4936. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Satisfaction of external order_I31

37.—(1) A registered external order is satisfied when no amount is due under it.

(2) Where such an order authorises the recovery of property specified in it, no further amount is due under the order when all of the specified property has been sold.

Restrictions relating to enforcement receivers_I32

38.—(1) Paragraphs (2) to (4) apply if a court makes an order under article 27 appointing a receiver in respect of any realisable property or specified property.

(2) No distress may be levied against the property except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

(3) If the receiver is appointed in respect of a tenancy of any premises, no landlord or other person to whom rent is payable may exercise a right within paragraph (4) except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

(4) A right is within this paragraph if it is a right of forfeiture by peaceable re-entry in relation to the premises in respect of any failure by the tenant to comply with any term or condition of the tenancy.

(5) If a court in which proceedings are pending in respect of any property is satisfied that an order under article 27 appointing a receiver in respect of the property has been applied for or made, the court may either stay the proceedings or allow them to continue on any terms it thinks fit.

(6) Before exercising any power conferred by paragraph (5), the court must give an opportunity to be heard to—

(a)^F50the relevant Director ..., and

(b)the receiver (if the order under article 27 has been made).

Restrictions relating to Director of the Agency’s receivers

^F5139. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CHAPTER 3 RECEIVERS AND PROCEDURE

Protection of receiver appointed under articles 15, 27 and 30_I33

40. If a receiver appointed under article 15 [^F52or 27^F52] —

(a)takes action in relation to property which is not realisable property or, as the case may be, the specified property,

(b)would be entitled to take the action if it were realisable property or, as the case may be, the specified property, and

(c)believes on reasonable grounds that he is entitled to take the action,

he is not liable to any person in respect of any loss or damage resulting from the action, except so far as the loss or damage is caused by his negligence.

Further applications by receivers_I34

41.—(1) This article applies to a receiver appointed under article 15 [^F53or 27^F53] .

(2) The receiver may apply to the Crown Court for an order giving directions as to the exercise of his powers.

(3) The following persons may apply to the Crown Court—

(a)any person affected by action taken by the receiver;

(b)any person who may be affected by action the receiver proposes to take.

(4) On an application under this article the court may make such order as it believes is appropriate.

Discharge and variation of receiver orders_I35

42.—(1) The following persons may apply to the Crown Court to vary or discharge an order made under article 15, 16 or 27 [^F54to 29^F54] —

(a)the receiver;

(b)the relevant Director;

(c)any person affected by the order.

(2) On an application under this article the court—

(a)may discharge the order;

(b)may vary the order.

(3) But in the case of an order under article 15 or 16—

(a)if the condition in article 7 which was satisfied was that proceedings were started, the court must discharge the order if at the conclusion of the proceedings no external order has been made;

(b)if the condition which was satisfied was that proceedings were started, the court must discharge the order if within a reasonable time an external order has not been registered under Chapter 2 of this Part;

(c)if the condition which was satisfied was that an investigation was started, the court must discharge the order if within a reasonable time proceedings for the offence are not started.

Management receivers: discharge_I36

43.—(1) This article applies if—

(a)a receiver stands appointed under article 15 in respect of property which is identified in the restraint order (the management receiver), and

(b)^F55the court appoints a receiver under article 27 ....

(2) The court must order the management receiver to transfer to the other receiver all property held by the management receiver by virtue of the powers conferred on him by article 16.

^F56(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) Paragraph (2) does not apply to property which the management receiver holds by virtue of the exercise by him of his power under article 16(2)(d).

(5) If the management receiver complies with an order under paragraph (2) he is discharged—

(a)from his appointment under article 15;

(b)from any obligation under this Order arising from his appointment.

(6) If this article applies the court may make such a consequential or incidental order as it believes is appropriate.

Appeal to Court of Appeal about receivers_I37

44.—(1) If on an application for an order under any of articles 15, 16 [^F57or 27 to 29^F57] the court decides not to make one, the person who applied for the order may appeal to the Court of Appeal against the decision.

(2) If the court makes an order under any of articles 15, 16 [^F58or 27 to 29^F58] , the following persons may appeal to the Court of Appeal in respect of the court’s decision—

(a)the person who applied for the order;

(b)any person affected by the order.

(3) If on an application for an order under article 41 the court decides not to make one, the person who applied for the order may appeal to the Court of Appeal against the decision.

(4) If the court makes an order under article 41 the following persons may appeal to the Court of Appeal in respect of the court’s decision—

(a)the person who applied for the order;

(b)any person affected by the order;

(c)the receiver.

(5) The following persons may appeal to the Court of Appeal against a decision of the court on an application under article 42—

(a)^F59the person who applied for the order in respect of which the application was made ...;

(b)any person affected by the court’s decision;

(c)the receiver.

(6) On an appeal under this article the Court of Appeal may—

(a)confirm the decision, or

(b)make such order as it believes is appropriate.

Appeal to the [^F60Supreme Court^F60] about receivers_I38

45.—(1) An appeal lies to the [^F61Supreme Court^F61] from a decision of the Court of Appeal on an appeal under article 44.

(2) An appeal under this article lies at the instance of any person who was a party to the proceedings before the Court of Appeal.

(3) On an appeal under this article the [^F62Supreme Court^F62] may—

(a)confirm the decision of the Court Appeal, or

(b)make such order as it believes is appropriate.

Powers of court and receiver_I39

case46.—(1) This article applies to—

(a)the powers conferred on a court by this Part;

(b)the powers of a receiver appointed under article 15 [^F63or 27^F63] ;

[^F64 (c)the powers conferred on appropriate officers by articles 17B to 17E, 17G and 17I to 17K;

(d)the powers conferred on senior officers by article 17F.^F64]

(2) The powers—

(a)must be exercised with a view to the value for the time being of realisable property or specified property being made available (by the property’s realisation) for satisfying an external order that has been or may be made against the defendant;

(b)must be exercised, in a case where an external order has not been made, with a view to securing that there is no diminution in the value of the property identified in the external request;

(c)must be exercised without taking account of any obligation of a defendant or a recipient of a tainted gift if the obligation conflicts with the object of satisfying any external order against the defendant that has been or may be registered under article 22;

(d)may be exercised in respect of a debt owed by the Crown.

(3) Paragraph (2) has effect subject to the following rules—

(a)the powers must be exercised with a view to allowing a person other than the defendant or a recipient of a tainted gift to retain or recover the value of any interest held by him;

(b)in the case of realisable property or specified property held by a recipient of a tainted gift, the powers must be exercised with a view to realising no more than the value for the time being of the gift;

(c)in a case where an external order has not been made against the defendant, property must not be sold if the court so orders under paragraph (4).

(4) If on an application by the defendant or the recipient of a tainted gift, the court decides that property cannot be replaced it may order that it must not be sold.

(5) An order under paragraph (4) may be revoked or varied.

Procedure on appeal to Court of Appeal under Part 2_I40

case47.—(1) An appeal to the Court of Appeal under this Part lies only with the leave of that Court.

(2) Subject to rules of court made under section 53(1) of the Supreme Court Act 1981(28) (distribution of business between civil and criminal divisions) the criminal division of the Court of Appeal is the division—

(a)to which an appeal to that Court under this Part is to lie, and

(b)which is to exercise that Court’s jurisdiction under this Part.

(3) In relation to appeals to the Court of Appeal under this Part, the Secretary of State may make an order containing provision corresponding to any provision in the Criminal Appeal Act 1968(29), subject to any specified modifications.

(4) Subject to any rules of court, the costs of and incidental to all proceedings on an appeal to the criminal division of the Court of Appeal under article 10, 23 [^F65, 24B^F65] or 44 are in the discretion of the court.

(5) The court shall have full power to determine by whom and to what extent the costs are to be paid.

(6) In any proceedings mentioned in paragraph (4), the court may—

(a)disallow, or

(b)(as the case may be) order the legal or other representative concerned to meet,

the whole of any wasted costs or such part of them as may be determined in accordance with rules of court.

(7) In paragraph (6) “wasted costs” means any costs incurred by a party—

(a)as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative, or

(b)which, in the light of any such act or omission occurring after they were incurred, the court considers it unreasonable to expect that party to pay.

(8) “Legal or other representative”, in relation to a party to proceedings, means any person exercising a right of audience or right to conduct litigation on his behalf.

Procedure on appeal to [^F66Supreme Court^F66] under Part 2_I41

case48.—(1) Section 33(3) of the Criminal Appeal Act 1968 (limitation on appeal from criminal division of the Court of Appeal) does not prevent an appeal to the [^F67Supreme Court^F67] under this Part.

(2) In relation to appeals to the [^F68Supreme Court^F68] under this Part, the Secretary of State may make an order containing provision corresponding to any provision in the Criminal Appeal Act 1968, subject to any specified modifications.

[^F69CHAPTER 3A Seized personal property

Seized personal property

48A.—(1) This article applies to personal property which is held by a person and which—

(a)has been seized by an appropriate officer under a relevant seizure power; or

(b)has been produced to an appropriate officer in compliance with a production order under—

(i)article 6 of the Proceeds of Crime Act 2002 (External Investigations) Order 2013; or

(ii)article 6 of the Proceeds of Crime Act 2002 (External Investigations) Order 2014.

(2) A magistrates’ court may by order authorise an appropriate officer to realise the property if—

(a)an external order is made against the person by whom the property is held; and

(b)a receiver has not been appointed under article 27 (appointment of enforcement receivers) in relation to the property.

Costs of storage and realisation

48B.—(1) This article applies if a magistrates’ court makes an order under article 48A.

(2) The court may determine an amount which may be recovered by the appropriate officer in respect of reasonable costs incurred in—

(a)storing or insuring the property since it was seized or produced as mentioned in paragraph (1) of that article;

(b)realising the property.

(3) If the court makes a determination under this article the appropriate officer is entitled to payment of the amount under article 34(4)(c).

(4) A determination under this article may be made on the same occasion as the article 48A order or on any later occasion; and more than one determination may be made in relation to any case.

Articles 48A and 48B: appeals

48C.—(1) If a magistrates’ court decides not to make an order under article 48A, an appropriate officer may appeal to the Crown Court.

(2) If a magistrates’ court makes an order under article 48A, a person affected by the order may appeal to the Crown Court.

(3) But the person mentioned in article 48A(2)(a) may not appeal.

(4) An appropriate officer may appeal to the Crown Court against—

(a)a determination made by a magistrates’ court under article48B;

(b)a decision by a magistrates’ court not to make a determination under that article.

Proceeds of realisation

48D.—(1) This article applies to sums which—

(a)are in the hands of an appropriate officer; and

(b)are the proceeds of the realisation of property under article 48A.

(2) The sums must be applied as follows—

(a)first, they must be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under this paragraph by virtue of article 3;

(b)second, they must be applied in making any payments directed by the magistrates’ court or the Crown Court;

(c)third, they must be paid to the relevant Director on account of the amount payable under the external order.

(3) If the amount payable under the external order has been fully paid and any sums remain in the appropriate officer’s hands, the appropriate officer must distribute them—

(a)among such persons who held (or hold) interests in the property represented by the proceeds as the magistrates’ court or the Crown Court directs; and

(b)in such proportions as it directs.

(4) Before making a direction under paragraph (3) the court must give persons who held (or hold) interests in the property a reasonable opportunity to make representations to it.

(5) If the magistrates’ court has made a direction under paragraph (2)(b) or (3) in respect of the proceeds of realisation of any property, the Crown Court may not make a direction under either of those provisions in respect of the proceeds of realisation of that property; and vice versa.^F69]

CHAPTER 4 INTERPRETATION

Property_I42

case 49. —(1) In this Part, “realisable property” means in a case where the external order specifies a sum of money, any free property held by the defendant or by the recipient of a tainted gift.

(2) “Free property” has the same meaning as in section 82 of the Act (free property)( 30 ).

(3) The rules in paragraphs (a) and (c) to (g) of section 84(2) of the Act (property: general provisions) apply in relation to property under this Order (in addition to section 447(4) to (6) of the Act (interpretation)) as they apply in relation to property under Part 2 of the Act.

Tainted gifts_I43

50.—(1) In this Part, a gift is tainted if it was made by the defendant at any time after—

(a)the date on which the offence to which the external order or external request relates was committed, or

(b)if his criminal conduct consists of two or more such offences and they were committed on different dates, the date of the earliest.

(2) For the purposes of paragraph (1), an offence which is a continuing offence is committed on the first occasion when it is committed.

(3) A gift may be a tainted gift whether it was made before or after the coming into force of this Order.

Gifts and their recipients_I44

51.—(1) In this Part, a defendant is to be treated as making a gift if he transfers property to another person for a consideration whose value is significantly less than the value of the property at the time of the transfer.

(2) If paragraph (1) applies, the property given is to be treated as such share in the property transferred as is represented by the fraction—

(a)whose numerator is the difference between the two values mentioned in paragraph (1), and

(b)whose denominator is the value of the property at the time of the transfer.

(3) In this Part references to a recipient of a tainted gift are to a person to whom the defendant has made the gift.

Value: the basic rule_I45

52.—(1) Subject to article 53, this article applies where it is necessary under this Part to decide the value at any time of property then held by a person.

(2) Its value is the market value of the property at that time.

(3) But if at that time another person holds an interest in the property its value, in relation to the person mentioned in paragraph (1), is the market value of his interest at that time, ignoring any charging order under a provision listed in paragraph (4).

(4) Those provisions are—

(a)section 9 of the Drug Trafficking Offences Act 1986(31);

(b)section 78 of the Criminal Justice Act 1988(32);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990(33);

(d)section 27 of the Drug Trafficking Act 1994(34);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996(35).

Value of tainted gifts_I46

53.—(1) The value at any time (the material time) of a tainted gift is the greater of the following—

(a)the value (at time of the gift) of the property given, adjusted to take account of later changes in the value of money;

(b)the value (at the material time) of the property found under paragraph (2).

(2) The property found under this paragraph is as follows—

(a)if the recipient holds the property given, the property found under this paragraph is that property;

(b)if the recipient holds no part of the property given, the property found under this paragraph is any property which directly or indirectly represents it in his hands;

(c)if the recipient holds part of the property given, the property found under this paragraph is that part and any property which directly or indirectly represents the other part in his hands.

(3) The references in paragraph (1)(a) and (b) to the value are to the value found in accordance with article 52.

Meaning of “defendant”_I47

case 54. In this Part “defendant”—

(a)in relation to a restraint order means—

(i)in a case in which the first condition in article 7 is satisfied, the alleged offender;

(ii)in a case in which the second condition in article 7 is satisfied, the person against whom proceedings for an offence have been started in a country outside the United Kingdom (whether or not he has been convicted);

(b)in relation to an external order, the person convicted of criminal conduct;

[^F70 (c)for the purpose of Chapter 1A, has the meaning given in article 17A(4).^F70]

[^F71No further possibility of appeal

54A.—(1) The following rule applies for the purposes of construing any provision of this Part which refers to there being no further possibility of—

(a)an appeal against a decision of a court; or

(b)an appeal on which an order of a court could be varied or quashed.

(2) Any power to extend the time for giving notice of application for leave to appeal, or for applying for leave to appeal, must be ignored.^F71]

Other interpretation_{cross-notesI48}

case55. In this Part—

[^F72 “appropriate officer” means—

“relevant Director” has the meaning—

“relevant property” means property which satisfies the test in section 447(7) of the Act;

[^F72 “relevant seizure power” means a power to seize property which is conferred by or by virtue of—

[^F76 “SFO officer” means a member of staff of the Serious Fraud Office; ^F76]

“specified property” means property specified in an external order (other than an order that specifies a sum of money).

case PART 3 GIVING EFFECT IN SCOTLAND TO EXTERNAL REQUESTS IN CONNECTION WITH CRIMINAL INVESTIGATIONS OR PROCEEDINGS AND TO EXTERNAL ORDERS ARISING FROM SUCH PROCEEDINGS

CHAPTER 1 EXTERNAL REQUESTS

Action on receipt of external request in connection with criminal investigations or proceedings_I49

56.—(1) The Lord Advocate may make an application under article 59 where—

(a)he receives an external request in relation to relevant property in Scotland; and

(b)he considers that the request is likely to satisfy either of the conditions in article 57.

(2) The Lord Advocate may ask the overseas authority which made the request for such further information as may be necessary to determine whether the request is likely to satisfy either of the conditions in article 57.

(3) Where a request concerns relevant property which is in England and Wales or Northern Ireland as well as Scotland, so much of the request as concerns such property shall be dealt with under Part 2 or 4 respectively.

Conditions for court to give effect to external request_I50

57.—(1) The court may exercise the powers conferred by article 58 if either of the following conditions is satisfied.

(2) The first condition is that—

(a)relevant property within Scotland is identified in the external request;

(b)a criminal investigation has been instituted in the country from which the external request was made with regard to an offence; and

(c)there [^F77are reasonable grounds to suspect^F77] that the alleged offender named in the request has benefited from his criminal conduct.

(3) The second condition is that—

(a)relevant property within Scotland is identified in the external request;

(b)proceedings for an offence have been instituted in the country from which the external request was made and not concluded, and

(c)there is reasonable cause to believe that the accused named in the request has benefited from his criminal conduct.

(4) In determining whether the conditions are satisfied and whether the request is an external request within the meaning of the Act, the court must have regard to the definitions in subsections (1), (4) to (8) and (11) of section 447 of the Act.

(5) If the first condition is satisfied references in this Chapter to the accused are to the alleged offender.

Restraint orders_I51

58. —(1) If either condition set out in article 57 is satisfied, the court may make an order (“a restraint order”) interdicting any specified person from dealing with relevant property which is identified in the external request and specified in the order.

(2) A restraint order may be made subject to exceptions, and an exception may in particular—

(a)make provision for reasonable living expenses and reasonable legal expenses in connection with the proceedings seeking a restraint order or the registration of an external order;

(b)make provision for the purpose of enabling any person to carry on any trade, business, profession or occupation;

(c)be made subject to conditions.

(3) But an exception to a restraint order must not make provision for any legal expenses which—

(a)relate to the criminal conduct mentioned in article 57(2), if the first condition is satisfied, or article 57(3), if the second condition is satisfied; and

(b)are incurred by a person against whom proceedings for the offence have been instituted or by a recipient of a tainted gift.

(4) The court may make such order as it believes is appropriate for the purpose of ensuring that the restraint order is effective.

[^F78 (4A) Paragraphs (4B) and (4C) apply where the court makes a restraint order (by virtue of the first condition in article 57) as a result of a criminal investigation having been instituted in the country from which the external request was made with regard to an offence.

(4B) The court—

(a) must include in the restraint order a requirement for the applicant for the restraint order to report to the court on the progress of the investigation at such times and in such manner as the restraint order may specify (a “reporting requirement”); and

(b)must recall the restraint order if proceedings for the offence are not instituted within a reasonable time (and this duty applies whether or not an application to recall the restraint order is made under article 59(4)).

(4C) The duty under paragraph (4B)(a) does not apply if the court decides that, in the circumstances of the case, a reporting requirement should not be imposed, but the court—

(a)must give reasons for its decision; and

(b)may at any time vary the restraint order so as to include a reporting requirement (and this power applies whether or not an application to vary the restraint order is made under article 59(4)).^F78]

(5) A restraint order does not affect property for the time being subject to a charge under—

(a)section 9 of the Drug Trafficking Offences Act 1986(36);

(b)section 78 of the Criminal Justice Act 1988(37);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990(38);

(d)section 27 of the Drug Trafficking Act 1994(39);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996(40).

(6) Dealing with property includes removing the property from Scotland.

[^F79Restraint orders: power to retain seized property etc.

58A.—(1) A restraint order may include provision authorising the detention of any property to which it applies if the property—

(a)is seized by an appropriate officer under a relevant seizure power; or

(b)is produced to an appropriate officer in compliance with a production order under—

(i)article 40 of the Proceeds of Crime Act 2002 (External Investigations) Order 2013; or

(ii)article 6 of the Proceeds of Crime Act 2002 (External Investigations) (Scotland) Order 2015.

(2) Provision under paragraph (1) may, in particular—

(a)relate to specified property, to property of a specified description or to all property to which the restraint order applies;

(b)relate to property that has already been seized or produced or to property that may be seized or produced in future.^F79]

Application, recall and variation_I52

59.—(1) A restraint order may be made on an ex parte application by the Lord Advocate, which may be heard in chambers.

(2) The Lord Advocate must intimate an order to every person affected by it.

(3) Paragraph (2) does not affect the time when the order becomes effective.

(4) The Lord Advocate and any person affected by the order may apply to the court to recall the order or to vary it and paragraphs (5) to [^F80(9)^F80] apply in such a case.

(5) If an application under paragraph (4) in relation to an order has been made but not determined, realisable property to which the order applies must not be realised.

(6) The court may—

(a)recall the order;

(b)vary the order.

(7) If the condition in article 57 which was satisfied was that proceedings were instituted, the court must recall the order if, at the conclusion of the proceedings, no external order has been made.

[^F81 (8) If the condition in article 57 which was satisfied was that proceedings were instituted, the court must recall the order if within a reasonable time—

(a)an external order has not been registered under Chapter 2 of this Part, or

(b)there has been no direction by the Court of Session in accordance with paragraph 11 of Schedule 1 to the 2014 Regulations to register an overseas confiscation order which applies to property specified in the restraint order.^F81]

(9) If the condition in article 57 which was satisfied was that an investigation was instituted, the court must recall the order if within a reasonable time proceedings for the offence are not instituted.

Appeals_I53

60.—(1) If on an application for a restraint order the court decides not to make one, the Lord Advocate may reclaim against the decision.

(2) The Lord Advocate and any person affected by the order may reclaim against the decision of the court on an application under article 59(4).

[^F82Detention of property pending appeal

60A.—(1) This article applies where—

(a)a restraint order includes provision under article 58A authorising the detention of property; and

(b)the restraint order is recalled under article 59(6)(a).

(2) This article also applies where—

(a)a restraint order includes provision under article 58A authorising the detention of property; and

(b)the restraint order is varied under article 59(6)(b) so as to omit any such provision.

(3) The property may be detained until there is no further possibility of an appeal against (or review of)—

(a)the decision to recall or vary the restraint order; or

(b)any decision made on an appeal against (or review of) that decision.^F82]

Inhibition of property affected by order_I54

61.—(1) On the application of the Lord Advocate, the court may, in relation to the property mentioned in paragraph (2), grant warrant for inhibition against any person specified in a restraint order.

(2) That property is the heritable realisable property to which the restraint order applies (whether generally or 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 Lord Advocate against the person and may be executed, recalled, loosed or restricted accordingly, and

(b)has the effect of letters of inhibition and must forthwith be registered by the Lord Advocate in the Register of Inhibitions and Adjudications.

(4) Section 155 of the Titles to Land Consolidation (Scotland) Act 1868(41) (effective date of inhibition) applies in relation to an inhibition for which warrant is granted under paragraph (1) as it applies to an inhibition by separate letters or contained in a summons.

(5) The execution of an inhibition under this article in respect of property does not prejudice the exercise of an administrator’s powers under or for the purposes of this Part in respect of that property.

(6) An inhibition executed under this article ceases to have effect when, or in so far as, the restraint order ceases to apply in respect of the property in relation to which the warrant for inhibition was granted.

(7) If an inhibition ceases to have effect to any extent by virtue of paragraph (6) the Lord Advocate must—

(a)apply for the recall or, as the case may be, the restriction of the inhibition, and

(b)ensure that the recall or restriction is reflected in the Register of Inhibitions and Adjudications.

Arrestment of property affected by order_I55

62.—(1) On the application of the Lord Advocate the court may, in relation to moveable realisable property to which a restraint order applies (whether generally or such of it as is specified in the application), grant warrant for arrestment.

(2) Such a warrant for arrestment may be granted only if the property would be arrestable if the person entitled to it were a debtor.

(3) A warrant under paragraph (1) has effect as if granted on the dependence of an action for debt at the instance of the Lord Advocate against the person and may be executed, recalled, loosed or restricted accordingly.

(4) The execution of an arrestment under this article in respect of property does not prejudice the exercise of an administrator’s powers under or for the purposes of this Part in respect of that property.

(5) An arrestment executed under this article ceases to have effect when, or in so far as, the restraint order ceases to apply in respect of the property in relation to which the warrant for arrestment was granted.

(6) If an arrestment ceases to have effect to any extent by virtue of paragraph (5) the Lord Advocate must apply to the court for an order recalling, or as the case may be, restricting the arrestment.

Management administrators_I56

63.—(1) If the court makes a restraint order it may at any time, on the application of the Lord Advocate—

(a)appoint an administrator to take possession of any realisable property to which the order applies and (in accordance with the court’s directions) to manage or otherwise deal with the property;

(b)order a person who has possession of property in respect of which an administrator is appointed to give him possession of it.

(2) An appointment of an administrator may be made subject to conditions or exceptions.

(3) Where the court makes an order under paragraph (1)(b), the clerk of court must notify the accused and any person subject to the order of the making of the order.

(4) Any dealing of the accused or any such person in relation to property to which the order applies is of no effect in a question with the administrator unless the accused or, as the case may be, that person had no knowledge of the administrator’s appointment.

(5) The court—

(a)may order a person holding an interest in realisable property to which the restraint order applies to make to the administrator such payment as the court specifies in respect of a beneficial interest held by the accused or the recipient of a tainted gift;

(b)may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

(6) The court must not—

(a)confer the power mentioned in paragraph (1) to manage or otherwise deal with the property, or

(b)exercise the power conferred on it by paragraph (5),

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

(7) The court may order that a power conferred by an order under this article is subject to such conditions and exceptions as it specifies.

(8) Managing or otherwise dealing with property includes—

(a)selling the property or any part of it or interest in it;

(b)carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

(c)incurring capital expenditure in respect of the property.

(9) Paragraphs (1)(b) and (5) do not apply to property for the time being subject to a charge under—

(a)section 9 of the Drug Trafficking Offences Act 1986(42);

(b)section 78 of the Criminal Justice Act 1988(43);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990(44);

(d)section 27 of the Drug Trafficking Act 1994(45);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996(46).

Seizure in pursuance of restraint order

^F8364. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Restraint orders: restrictions on proceedings and remedies_I57

65.—(1) While a restraint order has effect, the court may sist any action, execution or any legal process in respect of the property to which the order applies.

(2) If the court in which proceedings are pending in respect of any property is satisfied that a restraint order has been applied for or made in respect of the property, the court may either sist the proceedings or allow them to continue on any terms it thinks fit.

(3) Before exercising any power conferred by paragraph (2), the court must give an opportunity to be heard to—

(a)the Lord Advocate, and

(b)any administrator appointed in respect of the property under article 63.

[^F84CHAPTER 1A External requests: search and seizure powers

Conditions for exercise of powers

65A.—(1) An appropriate officer may exercise the power conferred by article 65B if satisfied that either of the following conditions is met.

(2) The first condition is that—

(a)a criminal investigation has been started in the country from which the external request was made with regard to an offence;

^F85(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)proceedings for the offence have not yet been started against the person in that country; and

(d)a restraint order is in force in respect of any realisable property.

(3) The second condition is that—

(a)proceedings for an offence have been started in the country from which the external request was made; and

(b)a restraint order is in force in respect of any realisable property.

(4) In relation to the first condition in this article, subject to article 65B(4), references in this Chapter to the accused are to the person mentioned in that condition.

Power to seize property

65B.—(1) On being satisfied that either condition in article 65A is met, an appropriate officer may seize any realisable property if the officer has reasonable grounds for suspecting that—

(a)the property may otherwise be made unavailable for satisfying any external order that has been or may be made against the accused; or

(b)the value of the property may otherwise be diminished as a result of conduct by the accused or any other person.

(2) But the officer may not [^F86 under paragraph (1)^F86] seize exempt property.

(3) “Exempt property” means—

(a)such tools, books, vehicles and other items of equipment as are necessary to the accused for use personally in the accused’s employment, business or vocation;

(b)such clothing, bedding, furniture, household equipment, provisions or other things as are necessary for satisfying the basic domestic needs of the accused and the accused’s family.

(4) In relation to realisable property which is free property held by the recipient of a tainted gift, references in paragraph (3) to the accused are to be read as references to the recipient of that gift.

[^F87 (4A) On being satisfied as mentioned in article 65A(1) an appropriate officer may seize any free property if the officer has reasonable grounds for suspecting that it is a cryptoasset-related item.

(4B) A “cryptoasset-related item” is an item of property that is, or that contains or gives access to information that is, likely to assist in the seizure under paragraph (1) of any cryptoasset.

(4C) The circumstances in which a cryptoasset is “ seized ” for the purposes of paragraph (1) include circumstances in which it is transferred into a crypto wallet controlled by the appropriate officer.

(4D) If an appropriate officer is lawfully on any premises, the officer may, for the purpose of—

(a)determining whether any property is a cryptoasset-related item, or

(b)enabling or facilitating the seizure under paragraph (1) of any cryptoasset,

require any information which is stored in any electronic form and accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible, or from which it can readily be produced in a visible and legible form.

(4E) But paragraph (4D) does not authorise an appropriate officer to require a person to produce any items subject to legal privilege (as defined in section 412 of the Proceeds of Crime Act 2002).

(4F) Where an appropriate officer has seized a cryptoasset-related item under paragraph (4A), they may use any information obtained from it for the purpose of—

(a)identifying or gaining access to a crypto wallet, and

(b)by doing so, enabling or facilitating the seizure under paragraph (1) of any cryptoassets.^F87]

(5) “Free property” has the same meaning as in section 148 of the Act.

(6) “Tainted gift” has the same meaning as in section 144 of the Act.

(7) The power conferred by this article may be exercised only with the appropriate approval under article 65F unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

Search power: premises

65C.—(1) If an appropriate officer is lawfully on any premises the officer may search the premises for the purpose of finding any property which—

(a)the officer has reasonable grounds for suspecting may be found there; and

(b)if found there, the officer intends to seize under article 65B.

(2) The power conferred by this article may be exercised only with the appropriate approval under article 65F unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

(3) “Premises” has the meaning given by section 23 of the Police and Criminal Evidence Act 1984 .

Search power: people

65D.—(1) An appropriate officer may exercise the following powers if the officer has reasonable grounds for suspecting that a person is carrying property that may be seized under article 65B.

(2) The officer may, so far as the officer thinks it necessary or expedient for the purpose of seizing the property under that article, require the person—

(a)to permit a search of any property with the person;

(b)to permit a search of the person.

(3) An officer exercising a power under paragraph (2) may detain the person for so long as is necessary for its exercise.

(4) A power conferred by this article may be exercised only with the appropriate approval under article 65F unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

(5) This article does not require a person to submit to an intimate search or strip search (within the meaning of section 164 of the Customs and Excise Management Act 1979).

Search power: vehicles

65E.—(1) The powers specified in paragraph (4) are exercisable if—

(a)an appropriate officer has reasonable grounds for suspecting that a vehicle contains property that may be seized under article 65B; and

(b)it appears to the officer that the vehicle is under the control of a person who is in or in the vicinity of the vehicle.

(2) The powers are exercisable only if the vehicle is—

(a)in any place to which, at the time of the proposed exercise of the powers, the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission; or

(b)in any other place to which at that time people have ready access but which is not a dwelling.

(3) But if the vehicle is in a garden or yard or other land occupied with and used for the purposes of a dwelling, the officer may exercise the powers under paragraph (4) only if the officer has reasonable grounds for believing—

(a)that the person does not reside in the dwelling; and

(b)that the vehicle is not in the place in question with the express or implied permission of another who resides in the dwelling.

(4) The officer may, so far as the officer thinks it necessary or expedient for the purpose of seizing the property under article 65B, require the person to—

(a)permit entry to the vehicle;

(b)permit a search of the vehicle.

(5) An officer exercising a power under paragraph (4) may detain the vehicle for so long as is necessary for its exercise.

(6) A power conferred by this article may be exercised only with the appropriate approval under article 65F unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

Appropriate approval

65F.—(1) This article has effect for the purposes of articles 65B, 65C, 65D and 65E.

(2) The appropriate approval, in relation to the exercise of a power by an appropriate officer, means the approval of the sheriff or (if that is not practicable in any case) the approval of a senior officer.

(3) A senior officer means—

(a)in relation to the exercise of a power by an officer of Revenue and Customs, an officer of Revenue and Customs of a rank designated by the Commissioners for Her Majesty’s Revenue and Customs as equivalent to that of a senior police officer;

(b)in relation to the exercise of a power by a constable, a senior police officer.

(4) A senior police officer means a police officer of at least the rank of inspector.

Exercise of powers without judicial approval

65G.—(1) An appropriate officer must give a written report to the appointed person in any case where—

(a)the officer seizes property under article 65B without the approval of the sheriff; and

(b)any of the property seized is not detained for more than 48 hours.

(2) An appropriate officer must also give a written report to the appointed person in any case where—

(a)the officer exercises any of the powers conferred by articles 65C to 65E without the approval of the sheriff; and

(b)no property is seized under article 65B.

(3) A report under this article must give particulars of the circumstances which led the officer to believe that—

(a)the powers were exercisable; and

(b)it was not practicable to obtain the approval of the sheriff.

(4) The appointed person means a person appointed for the purposes of this article by the Scottish Ministers.

(5) The appointed person must not be a person employed under or for the purposes of the Scottish Administration; and the terms and conditions of appointment, including any remuneration or expenses to be paid, are to be determined by the Scottish Ministers.

(6) The period of 48 hours mentioned in paragraph (1)(b) is to be calculated in accordance with paragraph (7).

(7) In calculating a period of 48 hours in accordance with this paragraph, no account is to be taken of—

(a)any Saturday or Sunday;

(b)Christmas Day;

(c)Good Friday;

(d)any day that is a bank holiday under the Banking and Financial Dealings Act 1971 in Scotland; or

(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 power is exercised.

Report by appointed person on exercise of powers

65H.—(1) As soon as possible after the end of each financial year, the person appointed under article 65G(4) must prepare a report for that year.

(2) “Financial year” means—

(a)the period beginning with the day on which this article comes into force and ending with the next 31st March (which is the first financial year); and

(b)each subsequent period of twelve months beginning with 1st April.

(3) The report must give the appointed person’s opinion as to the circumstances and manner in which the powers conferred by articles 65B to 65E are being exercised in cases where the officer who exercised them is required to give a report under article 65G.

(4) The report may make any recommendations the appointed person considers appropriate.

(5) The appointed person must send a copy of the report to the Scottish Ministers.

(6) The Scottish Ministers must—

(a)publish any report received under paragraph (5); and

(b)lay a copy before the Scottish Parliament.

(7) Before acting under paragraph (6) the Scottish Ministers must exclude from the report any matter which the Scottish Ministers think is likely to prejudice any criminal investigation or criminal proceedings either in the United Kingdom or abroad (including the country from which the external request was made).

(8) If the Scottish Ministers exclude any matter from the report they must comply with paragraph (6) in relation to the whole of the report as soon as they think that the excluded matter is no longer likely to prejudice any criminal investigation or criminal proceedings.

Initial detention of seized property

65I.—(1) This article applies if an appropriate officer seizes property under article 65B.

(2) The property may be detained initially for a period of 48 hours.

(3) The period of 48 hours is to be calculated in accordance with article 65G(7).

Further detention pending variation of restraint order

65J.—(1) This article applies if—

(a)property is detained under article 65I;

(b)a restraint order is in force in respect of the property; and

(c)the restraint order does not include provision under article 58A authorising the detention of the property.

(2) If within the period mentioned in article 65I an application is made for the restraint order to be varied so as to include provision under article 58A authorising detention of the property, the property may be detained until the application is determined or otherwise disposed of.

(3) If such an application is made within that period and the application is refused, the property may be detained until there is no further possibility of an appeal against (or review of)—

(a)the decision to refuse the application; or

(b)any decision made on an appeal against (or review of) that decision.

[^F88 (4) Exempt property seized under article 65B(4A) may be detained under paragraphs (2) and (3) only with the approval of a senior officer.

(5) In paragraph (4)—

“ exempt property ” has the meaning given in article 65B(3) (reading references there to the accused as references to the person by whom the property is held) ;

“ senior officer ” has the meaning given in article 65F(3) (and for this purpose, the powers under paragraphs (2) and (3) to detain property are to be treated as exercised by the appropriate officer who seized the property). ^F88]

Release of property

65K.—(1) This article applies in relation to property which—

(a)has been seized by an appropriate officer under article 65B; and

(b)is detained under or by virtue of article 65I or 65J.

(2) The property must be released if at any time an appropriate officer decides that the detention condition is no longer met.

(3) The detention condition is met for so long as—

(a)either condition in article 65A is met; and

(b)there are reasonable grounds for the suspicion mentioned in article 65B(1) [^F89 or (4A)^F89] .

(4) Nothing in this article requires property to be released if there is a power to detain it otherwise than under or by virtue of article 65I or 65J.

(5) Nothing in this article affects the operation of any power or duty to release property that arises apart from this article.

[^F90 (6) If a cryptoasset-related item, as defined by article 65(4B), which has been released is not claimed within the period of a year beginning with the date on which it was released, the appropriate officer may—

(a)retain the item and deal with it as they see fit,

(b)dispose of the item, or

(c)destroy the item.

(7) The powers in paragraph (6) may be exercised only—

(a)where the appropriate officer has taken reasonable steps to notify—

(i)the person from whom the item was seized, and

(ii)any other persons who the appropriate officer has reasonable grounds to believe have an interest in the item,

that the item has been released, and

(b)with the approval of a senior officer.

(8) “Senior officer” in paragraph (7)(b) has the meaning given in article 65F(3).

(9) Any proceeds of a disposal of the item are to be paid into the Scottish Consolidated Fund.^F90]

Guidance by Lord Advocate

65L.—(1) The Lord Advocate may issue guidance in connection with—

(a)the carrying out by appropriate officers of the functions conferred by articles 65B to 65G;

(b)the carrying out by senior officers of their functions under article 65F; and

(c)the detention of property under or by virtue of articles 58A, 60A, 65I and 65J.

(2) The Lord Advocate must publish any guidance issued under this article.^F84]

CHAPTER 2 EXTERNAL ORDERS

Application to give effect to external orders_I58

66.—(1) Where the Lord Advocate receives an external order arising from a criminal conviction and concerning relevant property in Scotland, he may make an ex parte application to the court to give effect to the order.

(2) No application to give effect to such an order [^F91under this Order^F91] may be made otherwise than under paragraph (1).

(3) An application under paragraph (1) may be heard in chambers.

(4) Where an order concerns relevant property which is in England and Wales or Northern Ireland as well as Scotland, so much of the request as concerns such property shall be dealt with under Part 2 or 4 respectively.

Authentication by an overseas court_I59

67.—(1) Paragraph (2) applies where an overseas court has authenticated its involvement in—

(a)any judgement;

(b)any order;

(c)any other document concerned with such a judgement or order or proceedings relating to it.

(2) Where this paragraph applies, any statement in the judgement, order or document is admissible in evidence in proceedings under this Chapter.

Conditions for the court to give effect to external orders_I60

68.—(1) The court must decide to give effect to an external order by registering it where all of the following conditions are satisfied.

(2) The first condition is that the external order was made consequent on the conviction of the person named in the order and no appeal is outstanding in respect of that conviction.

(3) The second condition is that the order is in force and no appeal is outstanding in respect of it.

(4) The third condition is that giving effect to the order would not be incompatible with any of the Convention rights (within the meaning of the Human Rights Act 1998(47)) of any person affected by it.

(5) The fourth condition applies only in respect of an external order which authorises the confiscation of property other than money that is specified in the order.

(6) That condition is that the specified property must not be subject to a charge under—

(a)section 9 of the Drug Trafficking Offences Act 1986(48);

(b)section 78 of the Criminal Justice Act 1988(49);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990(50);

(d)section 27 of the Drug Trafficking Act 1994(51); or

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996(52).

(7) In determining whether the order is an external order within the meaning of the Act the court must have regard to the definitions in subsections (2), (4), (5), (6), (8) and (10) of section 447 of the Act.

(8) In paragraph (3) “appeal” includes—

(a)any proceedings by way of discharging or setting aside the order; and

(b)an application for a new trial or suspension or delay in execution of any penalty or sentence.

Registration of external orders_I61

69.—(1) Where the court decides to give effect to an external order, it must—

(a)register the order;

(b)provide for notice of the registration to be given to any person affected by it; and

(c)appoint a sheriff clerk for the purposes of the receipt of payment under articles 72(2) [^F92, 77(6) and 86D(2)^F92] .

(2) Only an external order registered by the court may be implemented under this Chapter.

(3) The court may cancel the registration of the external order, or vary the property to which it applies, on an application by the Lord Advocate or any person affected by it if, or to the extent that, the court is of the opinion that any of the conditions in article 68 is not satisfied.

(4) Notice of an application under paragraph (3) must be given—

(a)in the case of an application by the Lord Advocate, to any person affected by the registration of the external order; and

(b)in any other case, to the Lord Advocate and any other person affected by the registration of the external order.

(5) The court shall not cancel the registration of the external order or vary the property to which it applies under paragraph (3) unless it gives the Lord Advocate and any person affected by it the opportunity to make representations to it.

(6) The court must cancel the registration of the external order on an application by the Lord Advocate or any person affected by it, if it appears to the court that the order has been satisfied—

(a)in the case of an order for the recovery of a sum of money specified in it, by payment of the amount due under it, or

(b)in the case of an order for the recovery of specified property, by the surrender of the property, or

(c)by any other means.

(7) Where the registration of an external order is cancelled or varied under paragraph (3) or (6), the court must provide for notice of this to be given to the Lord Advocate and any person affected by it.

Appeal about external orders_I62

70.—(1) If on an application for the court to give effect to an external order by registering it, the court decides not to do so, the Lord Advocate may reclaim against the decision.

(2) If an application is made under article 69(3) or (6) in relation to the registration of an external order, the following persons may reclaim against the court’s decision on the application—

(a)the Lord Advocate;

(b)any person affected by the registration.

(3) On a reclaiming motion under paragraph (1) or (2) the court may—

(a)confirm or set aside the decision to register; or

(b)direct the court to register the external order (or so much of it as relates to property other than that to which article 68(6) applies).

[^F93Orders for securing compliance with external order

70A.—(1) This article applies where the court registers an external order.

(2) The court may make such order in relation to the registered person as it believes is appropriate for the purpose of ensuring that the external order is effective (a “compliance order”).

(3) The court must consider whether to make a compliance order—

(a)when it registers the external order; and

(b)if it does not make a compliance order then, at any later time (while the registration of the external order is still in effect) on an application made by the Lord Advocate.

(4) The court may recall or vary a compliance order on an application made by—

(a)the Lord Advocate;

(b)the registered person.

(5) In this article and article 70B “registered person” means the person named in the external order which has been registered by the court.

Appeal against orders under article 70A

70B.—(1) If on an application under article 70A(3)(b) the court decides not to make a compliance order, the Lord Advocate may reclaim against the decision.

(2) The following persons may reclaim in respect of the court’s decision to make, recall or vary a compliance order—

(a)the Lord Advocate;

(b)the registered person.

(3) On a reclaiming motion under paragraph (1) or (2) the court may—

(a)confirm or set aside the decision; or

(b)make such order as it believes is appropriate.

(4) In this article “compliance order” means an order made under article 70A. ^F93]

Sums in currency other than sterling_I63

71.—(1) This article applies where the external order which is registered under article 69 specifies a sum of money.

(2) If the sum of money which is specified is expressed in a currency other than sterling, the sum of money to be recovered is to be taken to be the sterling equivalent calculated in accordance with the rate of exchange prevailing at the end of the working day immediately preceding the day when the court registered the external order under article 69.

(3) The sterling equivalent must be calculated by the Lord Advocate.

(4) The notice referred to in article 69(1)(b) and (7) must set out the amount in sterling which is to be paid.

(5) In this article “working day” means any day other than—

(a)a Saturday or Sunday;

(b)Christmas Day; or

(c)Good Friday;

(d)any day that is a bank holiday in Scotland under the Banking and Financial Dealings Act 1971(53).

Time for payment_I64

72.—(1) This article applies where the external order is for the recovery of a specified sum of money.

(2) Subject to paragraphs (3) to (6), the amount ordered to be paid under—

(a)an external order that has been registered under article 69; or

(b)where article 71 applies, the notice under article 69(1)(b),

must be paid to the appropriate clerk of court on the date on which the notice under article 69(1)(b) is delivered to the person affected by it.

(3) Where there is a reclaiming motion under article 70 the duty to pay is delayed until the day on which the reclaiming motion is determined or withdrawn.

(4) If the person affected by an external order which has been registered shows that he needs time to pay the amount ordered to be paid, the court may make an order allowing payment to be made within a specified period.

(5) The specified period—

(a)must start with the day on which the notice under article 69(1)(b) was delivered to the person affected by the order or the day referred to in paragraph (3) as the case may be; and

(b)must not exceed six months.

(6) If within the specified period the person affected by an external order applies to the court for the period to be extended and the court believes that there are exceptional circumstances, it may make an order extending the period.

(7) The extended period—

(a)must start with the day on which the notice under article 69(1)(b) was delivered to the person affected by it; and

(b)must not exceed 12 months.

(8) An order under paragraph (6)—

(a)may be made after the end of the specified period; but

(b)must not be made after the end of the extended period.

(9) The court must not make an order under paragraph (4) or (6) unless it gives the Lord Advocate an opportunity to make representations.

(10) The appropriate clerk of court is the sheriff clerk appointed under article 69(1).

Appointment of enforcement administrators_I65

73.—(1) This article applies if—

(a)an external order is registered;

(b)it is not satisfied; and

(c)in the case of an external order for the recovery of a specified sum of money, any period specified by order under article 72 has expired.

(2) On the application of the Lord Advocate the court may appoint an administrator in respect of—

(a)where the external order is for the recovery of a specified sum of money, realisable property;

(b)where the external order is for the recovery of specified property, that property.

Powers of enforcement administrators in respect of monetary external orders_I66

74.—(1) If the court appoints an administrator under article 73, it may act under this article on the application of the Lord Advocate where the external order is for the recovery of a specified sum of money.

(2) The court may confer on the administrator the following powers in relation to any realisable property—

(a)power to take possession of the property;

(b)power to manage or otherwise deal with the property;

(c)power to realise the property in such manner as the court may specify.

(3) The court may order any person who has possession of realisable property to give possession of it to the administrator.

(4) The clerk of court must notify the offender and any person subject to an order under paragraph (3) of the making of that order.

(5) Any dealing of the offender or any such persons in relation to property to which the order applies is of no effect in a question with the administrator unless the offender or, as the case may be, that person had no knowledge of the administrator’s appointment.

(6) The court—

(a)may order a person holding an interest in realisable property to make to the administrator such payment as the court specifies in respect of a beneficial interest held by the offender or the recipient of a tainted gift;

(b)may (on payment being made) by order transfer, grant or extinguish any interest in the property.

(7) The court must not—

(a)confer the power mentioned in paragraph (2)(b) or (c) in respect of the property, or

(b)exercise the power conferred on it by paragraph (6) in respect of the property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

(8) Managing or otherwise dealing with property includes—

(a)selling the property or any part of it or interest in it;

(b)carrying on or arranging for another person to carry on any trade or business the assets of which are [^F94or are^F94] part of the property;

(c)incurring capital expenditure in respect of the property.

(9) The court may order that a power conferred by an order under this article is subject to such conditions and exceptions as it specifies.

(10) Paragraph (2) does not apply to property for the time being subject to a charge under—

(a)section 9 of the Drug Trafficking Offences Act 1986;

(b)section 78 of the Criminal Justice Act 1988;

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990;

(d)section 27 of the Drug Trafficking Act 1994;

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996.

Powers of enforcement administrators in respect of external orders for the recovery of specified property_I67

75. —(1) If the court appoints an administrator under article 73, it may act under this article on the application of the Lord Advocate where the external order is for the recovery of property specified in the order (“the specified property”).

(2) The court may confer on the administrator the following powers in relation to the specified property—

(a)power to take possession of the property;

(b)power to manage or otherwise deal with the property;

(c)power to realise the property in such manner as the court may specify;

[^F95 (d)so far as the property consists of cryptoassets, power to destroy the property.^F95]

(3) The court may order any person who has possession of the specified property to give possession of it to the administrator.

(4) The clerk of court must notify the offender and any person subject to an order under paragraph (3) of the making of that order.

(5) Any dealing of the offender or any such person in relation to property to which the order applies is of no effect in a question with the administrator unless [^F96the offender or, as the case may be, that person^F96] had no knowledge of the administrator’s appointment.

(6) The court—

(a)may order a person holding an interest in the specified property to make to the administrator such payment as the court specifies in respect of a beneficial interest held by the offender or the recipient of a tainted gift;

(b)may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

(7) The court must not—

(a)confer the power mentioned in paragraph (2)(b) [^F97, (c) or (d)^F97] in respect of the property; or

(b)exercise the power conferred on it by paragraph (6) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations about it.

(8) The court may order that a power conferred by an order under this article is subject to such conditions and exceptions as it specifies.

[^F98 (8A) The court may confer the power mentioned in paragraph (6)(d) only where—

(a)it is not reasonably practicable to realise the cryptoassets in question, or

(b)there are reasonable grounds to believe that the realisation of the cryptoassets would be contrary to the public interest, having regard in particular to how likely it is that the entry of the cryptoassets into general circulation would facilitate criminal conduct by any person.

(8B) An order conferring that power—

(a)must set out the court’s assessment of the market value of the cryptoassets to which it relates;

(b)may confer power to destroy the cryptoassets only to the extent that their market value, as set out in the order, is less than or equal to the amount remaining to be paid under the external order.

(8C) If the administrator destroys any cryptoassets in the exercise of that power, the accused is to be treated as having paid, towards satisfaction of the external order, an amount equal to the market value, as set out in the order, of the cryptoassets which have been destroyed.^F98]

(9) Managing or otherwise dealing with property includes—

(a)selling the property or any part of it or interest in it;

(b)carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

(c)incurring capital expenditure in respect of the property.

Disposal of family home_I68

76.—(1) This article applies where the court confers power on the administrator under article 74(2) in respect of the offender’s family home.

(2) Where this article applies, then, before the administrator disposes of any right or interest in the offender’s family home he shall—

(a)obtain the relevant consent; or

(b)where he is unable to do so, apply to the court for authority to carry out the disposal.

(3) On an application being made to it under paragraph (2)(b), the court, after having regard to all the circumstances of the case including—

(a)the needs and financial resources of the spouse of the offender;

(b)the needs and financial resources of any child of the family;

(c)the length of the period during which the family home has been used as a residence by any of the persons referred to in sub-paragraph (a) or (b),

may refuse to grant the application or may postpone the granting of the application for such period (not exceeding 12 months) as it may consider reasonable in the circumstances or may grant the application subject to such conditions as it may prescribe.

(4) Paragraph (3) shall apply—

(a)to an action for division and sale of the family home of the person concerned; or

(b)to an action for the purpose of obtaining vacant possession of that home,

brought by an administrator as it applies to an application under paragraph (2)(b) and, for the purposes of this paragraph, any reference in paragraph (3) to the granting of the application shall be construed as a reference to the granting of decree in the action.

(5) In this article—

“family home”, in relation to any offender means any property in which the offender has or had (whether alone or in common with any other person) a right or interest, being property which is occupied as a residence by the offender and his or her spouse or by the offender’s spouse or former spouse (in any case with or without a child of the family) or by the offender with a child of the family;

[^F99 “child of the family” includes any child or grandchild of either the offender or the offender’s spouse or former spouse, and any person who has been treated by either the offender or the offender’s spouse or former spouse as if he or she were a child of the offender, spouse or former spouse, whatever the age of such a child, grandchild or person may be; ^F99]

“relevant consent” means in relation to the disposal of any right or interest in a family home—

Application of sums by enforcement administrator_I69

77.—(1) This article applies to sums which are in the hands of an administrator appointed under article 73 if they are—

(a)the proceeds of the realisation of property under article 74 or 75;

(b)where article 74 applies, sums (other than those mentioned in sub-paragraph (a)) in which the offender holds an interest.

(2) The sums must be applied as follows—

(a)first, they must be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under this paragraph by virtue of article 3;

(b)second, they must be applied in making any payments as directed by the court;

(c)third, they must be applied on the offender’s behalf towards satisfaction of the external order.

(3) If the amount payable under the external order has been fully paid and any sums remain in the administrator’s hands he must distribute them—

(a)among such persons who held (or hold) interests in the property concerned as the court directs; and

(b)in such proportions as it directs.

(4) Before making a direction under paragraph (3) the court must give persons who held (or hold) interests in the property concerned a reasonable opportunity to make representations to it.

(5) For the purposes mentioned in paragraphs (3) and (4) the property concerned is—

(a)the property represented by the proceeds mentioned in paragraph (1)(a);

(b)the sums mentioned in paragraph (1)(b).

(6) The administrator applies sums as mentioned in paragraph (2)(c) by paying them to the appropriate clerk of court on account of the amount payable under the order.

(7) The appropriate clerk of court is the sheriff clerk appointed [^F100under^F100] article 69(1).

Sums received by clerk of court_I70

78.—(1) This section applies if a clerk of court receives sums on account of the amount payable under a registered external order or the value of the property specified in the order.

(2) The clerk of court’s receipt of the sums reduces the amount payable under the order, but he must apply the sums received as follows.

(3) First he must apply them in payment of such expenses incurred by a person acting as an insolvency practitioner as—

(a)are payable under this paragraph by virtue of article 3; but

(b)are not already paid under article 77(2)(a) [^F101or 86D(2)(a)^F101] .

(4) If the Lord Advocate has reimbursed the administrator in respect of remuneration or expenses under article 80 the clerk of court must next apply the sums in reimbursing the Lord Advocate.

(5) If the clerk of court received the sums under article 77 he must next apply them in payment of the administrator’s remuneration and expenses.

[^F102 (5A) If the clerk of court received the sums from an appropriate officer under article 77 or 86D, the clerk of court must next apply them in payment to an appropriate officer of any amount to which the officer is entitled by virtue of article 86B.^F102]

(6) If any amount remains after the clerk of court makes any payments required by the preceding paragraphs of this article, the amount must be disposed of in accordance with [^F103section 211(6)^F103] of the Criminal Procedure (Scotland) Act 1995(54) as if it were a fine imposed [^F104under that Act^F104] .

Satisfaction of external order_I71

79.—(1) A registered external order is satisfied when no amount is due under it.

(2) Where such an order authorises the recovery of property specified in it, no amount is due under the order when all of the specified property has been sold.

CHAPTER 3 ADMINISTRATORS AND PROCEDURE

Protection of administrator appointed under article 63 or 73_I72

80.—(1) If an administrator appointed under article 63 or 73—

(a)takes action in relation to property which is not realisable property, or as the case may be, the specified property;

(b)would be entitled to take the action if it were realisable property or, as the case may be, the specified property; and

(c)believes on reasonable grounds that he is entitled to take action,

he is not liable to any person in respect of any loss or damage resulting from the action, except so far as the loss or damage is caused by his negligence.

(2) Paragraph (3) applies if an administrator incurs expenses in the exercise of his functions at a time when—

(a)an external order has not been registered; and

(b)an external order has been registered but the administrator has recovered no money.

(3) As soon as practicable after they have been incurred the expenses must be reimbursed by the Lord Advocate.

(4) Paragraph (5) applies if—

(a)an amount is due in respect of the administrator’s remuneration and expenses; but

(b)nothing (or not enough) is available to be applied in payment of them under article 78(4).

(5) The remuneration and expenses must be paid (to the extent of the shortfall) by the Lord Advocate.

Protection of persons affected_I73

81.—(1) This paragraph applies where an administrator is appointed under article 63 or 73.

(2) The following persons may apply to the court—

(a)any person affected by action taken by the administrator;

(b)any person who may be affected by action the administrator proposes to take.

(3) On an application under this article the court may make such order as it thinks appropriate.

Recall and variation of order_I74

82.—(1) The Lord Advocate, an administrator and any other person affected by an order made under article 63 or articles 73 to 75 may apply to the court to vary or recall the order.

(2) On an application under this article the court—

(a)may vary the order;

(b)may recall the order.

(3) But in the case of an order under article 63—

(a)if the condition in article 57 which was satisfied was that proceedings were instituted, the court must recall the order if at the conclusion of the proceedings no external order (within the meaning of section 447(2) of the Act) has now been made;

(b)if the condition which was satisfied was that an investigation was instituted the court must recall the order if within a reasonable period proceedings for the offence are not instituted.

Management administrators: discharge_I75

83.—(1) This article applies if—

(a)an administrator stands appointed under article 63 in respect of property which is identified in the restraint order (the management administrator); and

(b)the court appoints an administrator under article 73.

(2) The Court must order the management administrator to transfer to the other administrator all property held by the management administrator by virtue of the powers conferred on him by article 63.

(3) If the management administrator complies with an order under paragraph (2) he is discharged—

(a)from his appointment under article 63;

(b)from any obligation under this Order arising from his appointment.

Appeals_I76

84.—(1) If on an application for an order under article 63 or articles 73 to 75 the court decides not to make one, the Lord Advocate may reclaim in respect of the decision.

(2) If the court makes an order under article 63 or articles 73 to 75 the following persons may reclaim in respect of the court’s decision—

(a)the Lord Advocate;

(b)any person affected by the Order.

(3) If on an application for an order under article 81 the court decides not to make one, the person who applied for the order may reclaim in respect of the decision.

(4) If the court makes an order under article 81, the following persons may reclaim in respect of the court’s decision—

(a)the person who applied for the order in respect of which the application was made;

(b)any person affected by the court’s decision;

(c)the administrator.

(5) The following persons may reclaim in respect of a decision of the court on an application under article 82—

(a)the person who applied for the order in respect of which the application was made;

(b)any person affected by the court’s decision;

(c)the administrator.

(6) On a reclaiming motion under this article the court may—

(a)confirm the decision;

(b)make such order as it believes is appropriate.

Administrators: further provision_I77

85. Schedule 1 which makes further provision about administrators appointed under articles 63 and 73 has effect.

Administrators: restrictions on proceedings and remedies_I78

86.—(1) Where an administrator is appointed under article 73, the court may sist any action, execution or other legal process in respect of the property to which the order appointing the administrator relates.

(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 an application has been made for the appointment of an administrator or that an administrator has been appointed in relation to that property, the court may either sist the proceedings or allow them to continue on any terms it thinks fit.

(3) Before exercising any power conferred by paragraph (2) the court must give an opportunity to be heard to—

(a)the Lord Advocate;

(b)if appointed, the administrator.

[^F105CHAPTER 3A Seized personal property

Seized personal property

86A.—(1) This article applies to moveable property which is held by a person and which—

(a)has been seized by an appropriate officer under a relevant seizure power; or

(b)has been produced to an appropriate officer in compliance with a production order under—

(i)article 40 of the Proceeds of Crime Act 2002 (External Investigations) Order 2013; or

(ii)article 6 of the Proceeds of Crime Act 2002 (External Investigations) (Scotland) Order 2015.

(2) The sheriff may by order authorise an appropriate officer to realise the property if—

(a)an external order is made against the person by whom the property is held;

(b)an administrator has not been appointed under article 73 (appointment of enforcement administrators) in relation to the property; and

(c)any period allowed under article 72 (time for payment) for payment of the amount ordered to be paid under the external order has ended.

Costs of storage and realisation

86B.—(1) This article applies if the sheriff makes an order under article 86A.

(2) The sheriff may determine an amount which may be recovered by the appropriate officer in respect of reasonable costs incurred in—

(a)storing or insuring the property since it was seized or produced as mentioned in paragraph (1) of that article;

(b)realising the property.

(3) If the sheriff makes a determination under this article the appropriate officer is entitled to payment of the amount under article 78(5A).

(4) A determination under this article may be made on the same occasion as the article 86A order or on any later occasion; and more than one determination may be made in relation to any case.

Articles 86A and 86B: appeals

86C.—(1) If a sheriff decides not to make an order under article 86A, an appropriate officer may appeal to the Court of Session.

(2) If a sheriff makes an order under article 86A, a person affected by the order may appeal to the Court of Session.

(3) But the person mentioned in article 86A(2)(a) may not appeal.

(4) An appropriate officer may appeal to the Court of Session against—

(a)a determination made by a sheriff under article 86B;

(b)a decision by a sheriff not to make a determination under that article.

(5) An appeal under this article must be made before the end of the period of 21 days starting with the day on which the decision or (as the case may be) the order was made.

(6) On an appeal under this article, the Court of Session may—

(a)confirm, quash or vary the decision or (as the case may be) the order; or

(b)make such order as the Court of Session believes is appropriate.

Proceeds of realisation

86D.—(1) This article applies to sums which—

(a)are in the hands of an appropriate officer; and

(b)are the proceeds of the realisation of property under article 86A.

(2) The sums must be applied as follows—

(a)first, they must be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under this paragraph by virtue of article 3;

(b)second, they must be applied in making any payments directed by the sheriff;

(c)third, they must be paid to the appropriate clerk of court on account of the amount payable under the external order.

(3) If the amount payable under the external order has been fully paid and any sums remain in the appropriate officer’s hands, the appropriate officer must distribute them—

(a)among such persons who held (or hold) interests in the property represented by the proceeds as the sheriff directs; and

(b)in such proportions as the sheriff directs.

(4) Before making a direction under paragraph (3) the sheriff must give persons who held (or hold) interests in the property a reasonable opportunity to make representations to the sheriff.

(5) The appropriate clerk of court is the sheriff clerk appointed under article 69(1).^F105]

CHAPTER 4 INTERPRETATION

Property_I79

87. —(1) In this Part, “realisable property” means in a case where an external order specifies a sum of money, any free property held by the accused or offender, as the case may be, or the recipient of a tainted gift.

(2) The rules in paragraphs (a) and (c) to (g) of section 150(2) of the Act (property: general provisions) apply in relation to property under this Order (in addition to section 447(4) to (6)) of the Act (interpretation) as they apply in relation to property under Part 3 of the Act.

Tainted gifts and their recipients_I80

88.—(1) In this Part, a gift is tainted if it was made by the accused or offender, as the case may be, at any time after—

(a)the date on which the offence to which the external order or external request relates was committed, or

(b)if his criminal conduct consists of two or more such offences and they were committed on different dates, the date of the earliest.

(2) For the purposes of paragraph (1), an offence which is a continuing offence is committed on the first occasion when it is committed.

(3) A gift may be a tainted gift whether it was made before or after the coming into force of this Order.

(4) In this Part, an accused or offender, as the case may be, is to be treated as making a gift if he transfers property to another person for a consideration whose value is significantly less than the value of the property at the time of the transfer.

(5) If paragraph (4) applies, the property given is to be treated as such share in the property transferred as is represented by the fraction—

(a)whose numerator is the difference between the two values mentioned in paragraph (4), and

(b)whose denominator is the value of the property at the time of the transfer.

(6) In this Part, references to a recipient of a tainted gift are to a person to whom the accused or offender, as the case may be, has (whether directly or indirectly) made the gift.

Value: the basic rule_I81

89.—(1) Subject to article 90, this article applies where it is necessary under this Part to decide the value at any time of property then held by that person.

(2) Its value is the market value of the property at that time.

(3) But if at that time another person holds an interest in the property its value, in relation to the person mentioned in paragraph (1) is the market value of his interest at that time ignoring any charging order under a provision listed in paragraph (4).

(4) Those provisions are—

(a)section 9 of the Drug Trafficking Offences Act 1986(55);

(b)section 78 of the Criminal Justice Act 1988(56);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990(57);

(d)Section 27 of the Drug Trafficking Act 1994(58);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996(59).

Value of tainted gifts_I82

90.—(1) The value at any time (the material time) of a tainted gift is the greater of the following—

(a)the value (at the time of the gift) of the property gives, adjusted to take account of later changes in the value of money;

(b)the value (at the material time) of the property found under paragraph (2).

(2) The property found under this paragraph is as follows—

(a)if the recipient holds the property given, that property;

(b)if the recipient holds no part of the property given, any property which directly or indirectly represents it in his hands;

(c)if the recipient holds part of the property given, that part and any property which directly or indirectly represents the other part in his hands.

(3) The references in paragraph (1)(a) and (b) to the value are to the value found in accordance with article 89.

Meaning of “accused” and “offender”_I83

91. In this Part—

[^F106 “accused”—

“offender”, in relation to an external order means the person convicted of criminal conduct.

[^F107No further possibility of appeal

91A.—(1) The following rule applies for the purposes of construing any provision of this Part which refers to there being no further possibility of—

(a)an appeal against (or review of) a decision of a court; or

(b)an appeal on which an order of a court could be varied or quashed.

(2) Any power—

(a)to allow an appeal (or review) out of time, or

(b)to extend the time for applying for leave to appeal,

must be ignored.^F107]

Other interpretation_I84

92. In this Part—

[^F108 “appropriate officer” means—

“court” means the Court of Session;

“relevant property” means property which satisfies the test set out in section 447(7) of the Act;

[^F108 “relevant seizure power” means a power to seize property which is conferred by or by virtue of—

“specified property” means that property specified in the external request (other than a request that specifies a sum of money).

case PART 4 GIVING EFFECT IN NORTHERN IRELAND TO EXTERNAL REQUESTS IN CONNECTION WITH CRIMINAL INVESTIGATIONS OR PROCEEDINGS AND TO EXTERNAL ORDERS ARISING FROM SUCH PROCEEDINGS

CHAPTER 5 EXTERNAL REQUESTS

Action on receipt of external request in connection with criminal investigations or proceedings_I85

93.—(1) Except where paragraph (2) applies, the Secretary of State may refer an external request in connection with criminal investigations or proceedings in the country from which the request was made and concerning relevant property in Northern Ireland to—

^F109(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)the Director of Public Prosecutions for Northern Ireland;

to process it.

(2) This paragraph applies where it appears to the Secretary of State that the request—

(a)is made in connection with criminal investigations or proceedings which relate to an offence involving serious or complex fraud, and

(b)concerns relevant property in Northern Ireland.

(3) Where paragraph (2) applies, the Secretary of State may refer the request to the Director of the Serious Fraud Office to process it.

(4) In this Chapter “the relevant Director” means the Director to whom an external request is referred under paragraph (1) or (3).

(5) The relevant Director may ask the overseas authority which made the request for such further information as may be necessary to determine whether the request is likely to satisfy either of the conditions in article 94.

(6) A request under paragraph (5) may include a request for statements which may be used as evidence.

(7) Where a request concerns relevant property which is in England, Wales or Scotland as well as Northern Ireland, so much of the request as concerns such property shall be dealt with under Part 2 or 3 respectively.

Conditions for High Court to give effect to external request_I86

94.—(1) The High Court may exercise the powers conferred by article 95 if either of the following conditions is satisfied.

(2) The first condition is that—

(a)relevant property in Northern Ireland is identified in the external request;

(b)a criminal investigation has been started in the country from which the external request was made with regard to an offence, and

(c)there [^F110are reasonable grounds to suspect^F110] that the alleged offender named in the request has benefited from his criminal conduct.

(3) The second condition is that—

(a)relevant property in Northern Ireland is identified in the external request;

(b)proceedings for an offence have been started in the country from which the external request was made and not concluded, and

(c)there is reasonable cause to believe that the defendant named in the request has benefited from his criminal conduct.

(4) In determining whether the conditions are satisfied and whether the request is an external request within the meaning of the Act, the court must have regard to the definitions in subsections (1), (4) to (8) and (11) of section 447 of the Act.

(5) If the first condition is satisfied, references in this Chapter to the defendant are to the alleged offender.

Restraint orders_I87

95. —(1) If either condition set out in article 94 is satisfied, the High Court may make an order (“a restraint order”) prohibiting any specified person from dealing with relevant property which is identified in the external request and specified in the order.

(2) A restraint order may be made subject to exceptions, and an exception may in particular—

(a)make provision for reasonable living expenses and reasonable legal expenses in connection with the proceedings seeking a restraint order or the registration of an external order;

(b)make provision for the purpose of enabling any person to carry on any trade, business, profession or occupation;

(c)be made subject to conditions.

(3) Paragraph (4) applies if—

(a)a court makes a restraint order, and

(b)the applicant for the order applies to the court to proceed under paragraph (4) (whether as part of the application for the restraint order or at any time afterwards).

(4) The court may make such order as it believes is appropriate for the purpose of ensuring that the restraint order is effective.

[^F111 (4A) Paragraphs (4B) and (4C) apply where the High Court makes a restraint order (by virtue of the first condition in article 94) as a result of a criminal investigation having been started in the country from which the external request was made with regard to an offence.

(4B) The court—

(a) must include in the restraint order a requirement for the applicant for the restraint order to report to the court on the progress of the investigation at such times and in such manner as the restraint order may specify (a “reporting requirement”); and

(b)must discharge the restraint order if proceedings for the offence are not started within a reasonable time (and this duty applies whether or not an application to discharge the restraint order is made under article 96(2)).

(4C) The duty under paragraph (4B)(a) does not apply if the court decides that, in the circumstances of the case, a reporting requirement should not be imposed, but the court—

(a)must give reasons for its decision; and

(b)may at any time vary the restraint order so as to include a reporting requirement (and this power applies whether or not an application to vary the restraint order is made under article 96(2)).^F111]

(5) A restraint order does not affect property for the time being subject to a charge under any of these provisions—

(a)section 9 of the Drug Trafficking Offences Act 1986(60);

(b)section 78 of the Criminal Justice Act 1988(61);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990(62);

(d)section 27 of the Drug Trafficking Act 1994(63);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996(64).

(6) Dealing with property includes removing it from Northern Ireland.

[^F112Restraint orders: power to retain seized property

95A.—(1) A restraint order may include provision authorising the detention of any property to which it applies if the property—

(a)is seized by an appropriate officer under a relevant seizure power; or

(b)is produced to an appropriate officer in compliance with a production order under—

(i)article 6 of the Proceeds of Crime Act 2002 (External Investigations) Order 2013; or

(ii)article 6 of the Proceeds of Crime Act 2002 (External Investigations) Order 2014.

(2) Provision under paragraph (1) may, in particular—

(a)relate to specified property, to property of a specified description or to all property to which the restraint order applies;

(b)relate to property that has already been seized or produced or to property that may be seized or produced in future.^F112]

Application, discharge and variation of restraint orders_I88

96.—(1) A restraint order—

(a)may be made only on an application by the relevant Director;

(b)may be made on an ex parte application to a judge in chambers.

(2) An application to discharge or vary a restraint order or an order under article 95(4) may be made to the High Court by—

(a)the relevant Director;

(b)any person affected by the order.

(3) Paragraphs (4) to (7) apply to an application under paragraph (2).

(4) The court—

(a)may discharge the order;

(b)may vary the order.

(5) If the condition in article 94 which was satisfied was that proceedings were started, the court must discharge the order if, at the conclusion of the proceedings, no external order has been made.

[^F113 (6) If the condition in article 94 which was satisfied was that proceedings were started, the court must discharge the order if within a reasonable time—

(a)an external order has not been registered under Chapter 2 of this part, or

(b)there has been no direction by the Crown Court in accordance with paragraph 11 of Schedule 2 to the 2014 Regulations to register an overseas confiscation order which applies to property specified in the restraint order.^F113]

(7) If the condition in article 94 which was satisfied was that an investigation was started, the court must discharge the order if within a reasonable time proceedings for the offence are not started.

Appeal to Court of Appeal about restraint orders_I89

97.—(1) If on an application for a restraint order the High Court decides not to make one, the relevant Director may appeal to the Court of Appeal against the decision.

(2) If an application is made under article 96(2) in relation to a restraint order or an order under article 95(4), the following persons may appeal to the Court of Appeal in respect of the High Court’s decision on the application—

(a)the relevant Director;

(b)any person affected by the order.

(3) On an appeal under paragraph (1) or (2) the Court of Appeal may—

(a)confirm the decision, or

(b)make such order as it believes is appropriate.

Appeal to [^F114Supreme Court^F114] about restraint orders_I90

98.—(1) An appeal lies to the [^F114Supreme Court^F114] from a decision of the Court of Appeal on an appeal under article 97.

(2) An appeal under this article lies at the instance of any person who was a party to the proceedings before the Court of Appeal.

(3) On an appeal under this article the [^F114Supreme Court^F114] may—

(a)confirm the decision of the Court of Appeal, or

(b)make such order as it believes is appropriate.

[^F115Detention of property pending appeal

98A.—(1) This article applies where—

(a)a restraint order includes provision under article 95A authorising the detention of property; and

(b)the restraint order is discharged under article 96(4)(a) or 97(3)(b).

(2) This article also applies where—

(a)a restraint order includes provision under article 95A authorising the detention of property; and

(b)the restraint order is varied under article 96(4)(b) or 97(3)(b) so as to omit any such provision.

(3) The property may be detained until there is no further possibility of an appeal against—

(a)the decision to discharge or vary the restraint order; or

(b)any decision made on an appeal against that decision.^F115]

Seizure in pursuance of restraint order

^F11699. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Supplementary (restraint orders)_I91

100.—(1) The person applying for a restraint order must be treated for the purposes of section 66 of the Land Registration Act (Northern Ireland) 1970(65) (cautions) as a person interested in relation to any registered land to which—

(a)the application relates, or

(b)a restraint order made in pursuance of the application relates.

(2) Upon being served with a copy of a restraint order, the Registrar shall, in respect of any registered land to which a restraint order or an application for a restraint order relates, make an entry inhibiting any dealing with the land without the consent of the High Court.

(3) Subsections (2) and (4) of section 67 of the Land Registration Act (Northern Ireland) 1970 (inhibitions) shall apply to an entry made under subsection (2) as they apply to an entry made on the application of any person interested in the registered land under subsection (1) of that section.

(4) Where a restraint order has been protected by an entry registered under the Land Registration Act (Northern Ireland) 1970 or the Registration of Deeds Acts, an order discharging the restraint order may require that the entry be vacated.

(5) In this article—

“Registrar” and “entry” have the same meanings as in the Land Registration Act (Northern Ireland) 1970 ; and

“Registration Deeds Acts” has the meaning given by section 46(2) of the Interpretation Act (Northern Ireland) 1954 ( 66 ).

Appointment of management receivers_I92

101.—(1) Paragraph (2) applies if—

(a)the High Court makes a restraint order, and

(b)the relevant Director applies to the court to proceed under paragraph (2) (whether as part of the application for the restraint order or at any time afterwards).

(2) The High Court may by order appoint a receiver in respect of any property which is specified in the restraint order.

Powers of management receivers_I93

102.—(1) If the court appoints a receiver under article 101 it may act under this article on the application of the relevant Director.

(2) The court may by order confer on the receiver the following powers in relation to any property which is specified in the restraint order—

(a)power to take possession of the property;

(b)power to manage or otherwise deal with the property;

(c)power to start, carry on or defend any legal proceedings in respect of the property;

(d)power to realise so much of the property as is necessary to meet the receiver’s remuneration and expenses.

(3) The court may by order confer on the receiver power to enter any premises in Northern Ireland and to do any of the following—

(a)search for or inspect anything authorised by the court;

(b)make or obtain a copy, photograph or other record of anything so authorised;

(c)remove anything which the receiver is required or authorised to take possession of in pursuance of an order of the court.

(4) The court may by order authorise the receiver to do any of the following for the purpose of the exercise of his functions—

(a)hold property;

(b)enter into contracts;

(c)sue and be sued;

(d)employ agents;

(e)execute powers of attorney, deeds or other instruments;

(f)take any other steps the court thinks appropriate.

(5) The court may order any person who has possession of property which is specified in the restraint order to give possession of it to the receiver.

(6) The court—

(a)may order a person holding an interest in property which is specified in the restraint order to make to the receiver such payment as the court specifies in respect of a beneficial interest held by the defendant or the recipient of a tainted gift;

(b)may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

(7) Paragraphs (2), (5) and (6) do not apply to property for the time being subject to a charge under any of these provisions—

(a)section 9 of the Drug Trafficking Offences Act 1986(67);

(b)section 78 of the Criminal Justice Act 1988(68);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990(69);

(d)section 27 of the Drug Trafficking Act 1994(70);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996(71).

(8) The court must not––

(a)confer the power mentioned in paragraph (2)(b) or (d) in respect of property, or

(b)exercise the power conferred on it by paragraph (6) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

[^F117 (8A) Paragraph (8), so far as relating to the power mentioned in paragraph (2)(b), does not apply to property which—

(a)is perishable; or

(b)ought to be disposed of before its value diminishes.^F117]

(9) The court may order that a power conferred by an order under this article is subject to such conditions and exceptions as it specifies.

(10) Managing or otherwise dealing with property includes—

(a)selling the property or any part of it or interest in it;

(b)carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

(c)incurring capital expenditure in respect of the property.

Restrictions relating to restraint orders_I94

103.—(1) Paragraphs (2) and (3) apply if a court makes a restraint order.

(2) If the order applies to a tenancy of any premises, no landlord or other person to whom rent is payable may exercise a right within paragraph (3) except with the leave of the High Court and subject to any terms the High Court may impose.

(3) A right is within this paragraph if it is a right of forfeiture by peaceable re-entry in relation to the premises in respect of any failure by the tenant to comply with any term or condition of the tenancy.

(4) If a court in which proceedings are pending in respect of any property is satisfied that a restraint order has been applied for or made in respect of the property, the court may either stay the proceedings or allow them to continue on any terms it thinks fit.

(5) Before exercising any power conferred by paragraph (4), the court must give an opportunity to be heard to—

(a)the relevant Director, and

(b)any receiver appointed in respect of the property under article 101 [^F118or 113^F118] .

[^F119CHAPTER 1A External Requests: Search and Seizure Powers

Conditions for exercise of powers

103A.—(1) An appropriate officer may exercise the power conferred by article 103B if satisfied that either of the following conditions is met.

(2) The first condition is that—

(a)a criminal investigation has been started in the country from which the external request was made with regard to an offence;

^F120(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)proceedings for the offence have not yet been started against the person in that country; and

(d)a restraint order is in force in respect of any realisable property.

(3) The second condition is that—

(a)proceedings for an offence have been started in the country from which the external request was made; and

(d)a restraint order is in force in respect of any realisable property.

(4) In relation to the first condition in this article, subject to article 103B(4), references in this Chapter to the defendant are to the person mentioned in that condition.

Power to seize property

103B.—(1) On being satisfied that either condition in article 103A is met, an appropriate officer may seize any realisable property if the officer has reasonable grounds for suspecting that—

(a)the property may otherwise be made unavailable for satisfying any external order that has been or may be made against the defendant; or

(b)the value of the property may otherwise be diminished as a result of conduct by the defendant or any other person.

(2) But the officer may not [^F121 under paragraph (1)^F121] seize exempt property.

(3) “Exempt property” means—

(a)such tools, books, vehicles and other items of equipment as are necessary to the defendant for use personally in the defendant’s employment, business or vocation;

(b)such clothing, bedding, furniture, household equipment, provisions or other things as are necessary for satisfying the basic domestic needs of the defendant and the defendant’s family.

(4) In relation to realisable property which is free property held by the recipient of a tainted gift, references in paragraph (3) to the defendant are to be read as references to the recipient of that gift.

[^F122 (4A) On being satisfied as mentioned in article 103A(1) an appropriate officer may seize any free property if the officer has reasonable grounds for suspecting that it is a cryptoasset-related item.

(4B) A “ cryptoasset-related item ” is an item of property that is, or that contains or gives access to information that is, likely to assist in the seizure under paragraph (1) of any cryptoasset.

(4C) The circumstances in which a cryptoasset is “ seized ” for the purposes of paragraph (1) include circumstances in which it is transferred into a crypto wallet controlled by the appropriate officer.

(4D) If an appropriate officer is lawfully on any premises, the officer may, for the purpose of—

(a)determining whether any property is a cryptoasset-related item, or

(b)enabling or facilitating the seizure under paragraph (1) of any cryptoasset,

require any information which is stored in any electronic form and accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible, or from which it can readily be produced in a visible and legible form.

(4E) But paragraph (4D) does not authorise an appropriate officer to require a person to produce information which the person would be entitled to refuse to provide on grounds of legal professional privilege in proceedings in the High Court.

(4F) Where an appropriate officer has seized a cryptoasset-related item under paragraph (4A), they may use any information obtained from it for the purpose of—

(a)identifying or gaining access to a crypto wallet, and

(b)by doing so, enabling or facilitating the seizure under paragraph (1) of any cryptoassets.^F122]

(5) “Free property” has the same meaning as in section 230 of the Act.

(6) “Tainted gift” has the same meaning as in section 225 of the Act.

(7) The power conferred by this article may be exercised only with the appropriate approval under article 103F unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

Search power: premises

103C.—(1) If an appropriate officer is lawfully on any premises the officer may search the premises for the purpose of finding any property which—

(a)the officer has reasonable grounds for suspecting may be found there; and

(b)if found there, the officer intends to seize under article 103B.

(2) The power conferred by this article may be exercised only with the appropriate approval under article 103F unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

(3) “Premises” has the meaning given by Article 25 of the Police and Criminal Evidence (Northern Ireland) Order 1989 .

Search power: people

103D.—(1) An appropriate officer may exercise the following powers if the officer has reasonable grounds for suspecting that a person is carrying property that may be seized under article 103B.

(2) The officer may, so far as the officer thinks it necessary or expedient for the purpose of seizing the property under that article, require the person—

(a)to permit a search of any property with the person;

(b)to permit a search of the person.

(3) An officer exercising a power under paragraph (2) may detain the person for so long as is necessary for its exercise.

(4) A power conferred by this article may be exercised only with the appropriate approval under article 103F unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.

(5) This article does not require a person to submit to an intimate search or strip search (within the meaning of section 164 of the Customs and Excise Management Act 1979).

Search power: vehicles

103E.—(1) The powers specified in paragraph (4) are exercisable if—