Proceeds of Crime Act 2002, section 267

Functions of the trustee for civil recovery

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

(1)The trustee for civil recovery is a person appointed by the court to give effect to a recovery order.

(2)The enforcement authority must nominate a suitably qualified person for appointment as the trustee.

(3)The functions of the trustee are—

(a)to secure the detention, custody or preservation of any property vested in him by the recovery order,

(b)in the case of property other than money, to realise the value of the property for the benefit of the enforcement authority, and

[F824 (ba)if decree of removing and warrant for ejection is granted by the Court of Session under section 266(8ZA), to enforce the decree and warrant,F824]

(c)to perform any other functions conferred on him by virtue of this Chapter.

(4)In performing his functions, the trustee acts on behalf of the enforcement authority and must comply with any directions given by the authority.

(5)The trustee is to realise the value of property vested in him by the recovery order, so far as practicable, in the manner best calculated to maximise the amount payable to the enforcement authority.

(6)The trustee has the powers mentioned in Schedule 7.

(7)References in this section to a recovery order include an order under section 276 and references to property vested in the trustee by a recovery order include property vested in him in pursuance of an order under section 276.

Definitions used in section 267 4

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
recovery order

“recovery order” means an order made under section 266,

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

“enforcement authority”—

(a)

in relation to England and Wales, means the Financial Conduct Authority, Her Majesty's Revenue and Customs, the National Crime Agency , the Director of Public Prosecutions ... or the Director of the Serious Fraud Office,

(b)

in relation to Scotland, means the Scottish Ministers,

(c)

in relation to Northern Ireland, means the Financial Conduct Authority, Her Majesty's Revenue and Customs, the National Crime Agency , the Director of the Serious Fraud Office or the Director of Public Prosecutions for Northern Ireland,

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

“value” means market value.

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

Cases considering section 267 5

Gale & Ors v Serious Organised Crime Agency

[2010] EWCA Civ 759 · 7 July 2010Defines

Section 267(1) identifies the trustee for civil recovery as the person appointed to give effect to the recovery order (see para [63]). Sections 267(3) to (5) define the trustee’s preservation, realisation and enforcement-authority functions. The contrast with the interim receiver’s narrower powers was material to the costs analysis (see paras [65], [76]).

Olden v Serious Organised Crime Agency

[2010] EWCA Civ 143 · 26 February 2010

The court applied the trustee’s statutory functions when identifying the correct party to realise vested land. The trustee, rather than SOCA, had to decide whether to seek possession. (see paras [70]; [75]-[78]) For non-money property, the trustee’s function is to realise value for the enforcement authority. The court relied on that allocation of function in holding that the trustee had to bring any possession claim. (see paras [75]; [77]-[78])

Gale and another v Serious Organised Crime Agency

[2011] UKSC 49 · 26 October 2011Defines

The trustee for civil recovery acts for the enforcement authority and has realisation functions materially broader than an interim receiver’s preservation and investigation functions (see paras [73]; [82]).

What each judgment says about section 267 is in the case-law panel in the full Act.

Explanatory note

352.Where it makes a recovery order, or a consent order under section 276, the court must appoint a trustee for civil recovery. The enforcement authority is required by subsection (2) to nominate someone suitably qualified, and may do so from its own staff (this is because unlike the interim receiver or interim administrator the trustee acts in the interests of the enforcement authority following the court’s judgment in favour of that authority and has no investigative functions). Subsection (3) places the trustee under a duty to secure the property which will be vested in him, and to liquidate non-cash assets for the benefit of the enforcement authority. Subsection (4) states that the trustee acts as such on behalf of the enforcement authority and on its instructions. Subsection (5) places the trustee under a duty to maximise the amount realisable from the property vested in him. These provisions together make clear that the trustee must approach his functions with a view to giving the fullest effect to the enforcement of the authority's right of recovery.

All the explanatory notes for the Act

Amendments and notes

2 notes from legislation.gov.uk

Amendments

  1. F824S. 267(3)(ba) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 29(4), 58(1)(6); S.I. 2018/78, reg. 3(l)

Commencement

  1. I248S. 267 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)