Proceeds of Crime Act 2002 s.282 – Other exemptions

(1)Proceedings for a recovery order may not be taken against any person in circumstances of a prescribed description; and the circumstances may relate to the person himself or to the property or to any other matter.

In this subsection, prescribed means prescribed by an order made by the Secretary of State after consultation with the Scottish Ministers [^F853or, in relation to Northern Ireland, prescribed by an order made by the Department of Justice^F853] .

(2)Proceedings for a recovery order may not be taken in respect of cash found at any place in the United Kingdom unless the proceedings are also taken in respect of property other than cash which is property of the same person.

(3)Proceedings for a recovery order may not be taken against the [^F854Financial Conduct Authority or the Prudential Regulation Authority^F854] in respect of any recoverable property held by [^F855it^F855] .

(4)Proceedings for a recovery order may not be taken in respect of any property which is subject to any of the following charges—

(a)a collateral security charge, within the meaning of the Financial Markets and Insolvency (Settlement Finality) Regulations 1999 (S.I. 1999/2979),

(b)a market charge, within the meaning of Part 7 of the Companies Act 1989 (c. 40),

(c)a money market charge, within the meaning of the Financial Markets and Insolvency (Money Market) Regulations 1995 (S.I. 1995/2049),

(d)a system charge, within the meaning of the Financial Markets and Insolvency Regulations 1996 (S.I. 1996/1469) or the Financial Markets and Insolvency Regulations (Northern Ireland) 1996 (S.R. 1996/252).

(5)Proceedings for a recovery order may not be taken against any person in respect of any recoverable property which he holds by reason of his acting, or having acted, as an insolvency practitioner.

Acting as an insolvency practitioner has the same meaning as in section 433.

Definitions used in section 282 4

recovery order: “recovery order” means an order made under section 266,
Defined in s.316(1) · see it in the full Act
the Department of Justice: “the Department of Justice” means the Department of Justice in Northern Ireland;
Defined in s.316(1) · see it in the full Act
cash: “cash” has the meaning given by section 289(6) or (7),
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

Cases considering section 282 3

Serious Organised Crime Agency v Agidi & Anor

[2011] EWHC 175 (QB) · 7 February 2011Interprets

Section 282(2) was considered in relation to SOCA’s ability to bring civil recovery proceedings after other proceedings. The court accepted that Part 5 permitted the claim in the circumstances. (see paras [123], [128], [144]-[146])

Perry & Ors v Serious Organised Crime Agency (Rev 1)

[2011] EWCA Civ 578 · 18 May 2011Limits

Section 282 was considered in relation to statutory exclusions from civil recovery and the argument that the absence of foreign equivalents indicated a territorial limit. The court rejected that inference (see paras [60]; [149]-[153]). Section 282(1) empowers the Secretary of State to prescribe by order persons against whom civil recovery proceedings cannot be taken (see para [60]). Section 282(3) was relied on for its exclusion concerning the Financial Services Authority. The court treated the absence of overseas equivalents as insufficient to restrict Part 5 territorially (see para [149]). Section 282(4) was relied on for its references to specified UK, EU and EEA charges. The court rejected the argument that the absence of worldwide equivalents demonstrated a territorial restriction (see para [149]). Section 282(5) was relied on for its exclusion concerning insolvency practitioners. The court rejected the argument that the absence of foreign equivalents limited Part 5 to domestic property (see para [149]).

Serious Organised Crime Agency v Perry & Ors

[2010] EWHC 1711 (Admin) · 28 June 2010Disapplies

Referred to as an exemption from recovery proceedings for recoverable property held by the Financial Services Authority. (see para [9]) Referred to as excluding property subject to specified United Kingdom financial charges from recovery proceedings. (see para [9])

What each judgment says about section 282 is in the case-law panel in the full Act.

Explanatory note

388.This section provides that proceedings for civil recovery may not be taken in respect of certain people in prescribed circumstances.

389.Subsection (1) provides for a power to make an order to exempt a person from having civil recovery proceedings brought against them. The power can be exercised by reference to any sort of description of the person and by reference to specified circumstances. The power to make exemption orders under this section will be exercised by the Secretary of State, but the Secretary of State is to consult with Scottish Ministers before making the order. Any order made under these provisions will be subject to approval by both Houses of Parliament (section 459(6)(a)).

390.Under subsection (2), the Director or the Scottish Ministers may not take civil recovery proceedings in respect of cash unless they are simultaneously taking proceedings against other property held by the same person. Proceedings involving cash only may be brought under the summary proceedings in Chapter 3.

391.Subsections (3) to (5) specify particular types of property and persons against whom proceedings may not be taken. These include property held by the Financial Services Authority (subsection (3)). The Authority may hold recoverable property, in the form of levies and civil penalties it may impose on people engaging in market abuse. The charges in subsection (4) relate to assets which are intended as security for financial markets. Subsection (5) protects a person acting as an insolvency practitioner from proceedings in respect of recoverable property he holds or has held in connection with his role as a practitioner.

All the explanatory notes for the Act

Amendments and notes

4 notes from legislation.gov.uk

Amendments

F853Words in s. 282(1) inserted (12.4.2010) by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 (S.I. 2010/976), art. 1(2), Sch. 14 para. 55 (with arts. 28-31)
F854Words in s. 282(3) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 18 para. 94(2)(a) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F855Word in s. 282(3) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 18 para. 94(2)(b) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

Commencement

I264S. 282 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)