Proceeds of Crime Act 2002, section 247

Functions of interim receiver

Part 5 Civil recovery of the proceeds etc. of unlawful conduct

(1)An interim receiving order may authorise or require the interim receiver—

(a)to exercise any of the powers mentioned in Schedule 6,

(b)to take any other steps the court thinks appropriate,

for the purpose of securing the detention, custody or preservation of the property to which the order applies or of taking any steps under subsection (2).

(2)An interim receiving order must require the interim receiver to take any steps which the court thinks necessary to establish—

(a)whether or not the property to which the order applies is recoverable property or associated property,

(b)whether or not any other property is recoverable property (in relation to the same unlawful conduct) and, if it is, who holds it.

(3)If—

(a)the interim receiver deals with any property which is not property to which the order applies, and

(b)at the time he deals with the property he believes on reasonable grounds that he is entitled to do so in pursuance of the order,

the interim receiver is not liable to any person in respect of any loss or damage resulting from his dealing with the property except so far as the loss or damage is caused by his negligence.

Definitions used in section 247 6

interim receiving order

“interim receiving order” has the meaning given by section 246(2),

Defined in s.316(1) · see it in the full Act
the court

(10) In this section, sections 120 to 140 and Schedule 3 “the court” means—

(a)the Court of Session, where a trial diet or a diet fixed for the purposes of section 76 of the Procedure Act in proceedings for the offence or offences concerned is to be, is being or has been held in the High Court of Justiciary;

(b)the sheriff exercising his civil jurisdiction, where a diet referred to in paragraph (a) is to be, is being or has been held in the sheriff court.

Defined in s.119(10) · see it in the full Act

“the court” (except in sections 253(2) and (3) and 262(2) and (3) and Chapters 3, 3A , 3B, 3C, 3D, 3E and 3F ) means the High Court or (in relation to proceedings in Scotland) the Court of Session,

Defined in s.316(1) · see it in the full Act
recoverable property

“recoverable property” is to be read in accordance with sections 304 to 310,

Defined in s.316(1) · see it in the full Act
associated property

“associated property” (in Chapter 2) has the meaning given by section 245,

Defined in s.316(1) · see it in the full Act
unlawful conduct

“unlawful conduct” has the meaning given by section 241,

Defined in s.316(1) · see it in the full Act
dealing

“dealing” with property includes disposing of it, taking possession of it or removing it from the United Kingdom,

Defined in s.316(1) · see it in the full Act

Cases considering section 247 5

Gale and another v Serious Organised Crime Agency

[2011] UKSC 49 · 26 October 2011Interprets

Section 247 supplied the interim receiver’s preservation and investigative functions. Those mandatory functions demonstrated why reasonable investigation expenditure was integral to the recovery litigation (see paras [65]-[69]; [80]-[81]). An interim order may authorise the Schedule 6 powers and other steps needed to preserve property or undertake the statutory investigation (see paras [67]-[69]). The interim order must require steps needed to establish whether identified or other property is recoverable. This mandatory investigation supported recovery of its reasonable cost as litigation expenditure (see paras [65]-[68]; [80]). The receiver had to investigate whether property covered by the order was recoverable or associated property. That work formed an essential part of SOCA’s claim (see paras [65]; [67]; [80]). The receiver had to investigate whether other property was recoverable from the same unlawful conduct and identify its holder. This was litigation-related investigative work (see paras [65]; [67]; [80]).

Gale & Ors v Serious Organised Crime Agency

[2010] EWCA Civ 759 · 7 July 2010

Section 247(2) requires the interim receiver to investigate whether property is recoverable or associated property and, where appropriate, identify other recoverable property and its holder (see para [60]).

Assets Recovery Agency v Jackson & Ors

[2007] EWHC 2553 (QB) · 9 November 2007

The receiver was required to investigate whether property was recoverable or associated property and whether other property was recoverable in relation to the same unlawful conduct. (see para [20])

What each judgment says about section 247 is in the case-law panel in the full Act.

Explanatory note

310.The detailed functions of an interim receiver will be conferred by the High Court’s order itself. The Court’s discretion to confer whatever powers it considers appropriate to the circumstances of an individual case are at large, provided always they are for the purposes set out at subsections (1) and (2), i.e. the detention, custody or preservation of the property or establishing whether it is recoverable or associated property or whether other property is recoverable property in relation to the same unlawful conduct.

311.Subsection (1)(a) introduces Schedule 6, which makes explicit mention of some of the more significant powers that the court may choose to confer on an interim receiver. An explanatory note about Schedule 6 is included below.

312.Although the High Court has a wide discretion over the powers and functions that may be conferred on an interim receiver, there are some duties under which he must always be placed. Subsection (2) sets these out. He will always be required to take the necessary steps to establish:

  • whether in his view the property is to any extent recoverable or associated property, and

  • whether there is any other property which is recoverable in relation to the same unlawful conduct and if so who holds it.

313.Up until the interim receiving order or the issuing of the claim form (whichever comes first), the Director has access to the civil investigation powers set out in Part 8. Thereafter, the Director ceases to have access to these powers and the duty of taking whatever further steps are needed to establish the facts about the property is placed upon the interim receiver acting under the Court’s direction.

314.Subsection (3) provides legal protection for the interim receiver if he mistakenly, but honestly and reasonably, deals with property that is not the property specified in the order. He will have immunity from any legal claims in respect of loss or damage caused by such dealing, unless it can be shown that it was caused by his negligence.

All the explanatory notes for the Act

Amendments and notes

1 notes from legislation.gov.uk

Commencement

  1. I228S. 247 in force at 24.2.2003 by S.I. 2003/120, art. 2, Sch. (with arts. 3, 4) (as amended (20.2.2003) by S.I. 2003/333, art. 14)