Proceeds of Crime Act 2002, section 286A

Legal expenses excluded from freezing: required conditions

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

(1)The Lord Chancellor may by regulations specify the required conditions for the purposes of section 245C(5) or 252(4).

(2)A required condition may (in particular)—

(a)restrict who may receive sums released in pursuance of the exclusion (by, for example, requiring released sums to be paid to professional legal advisers), or

(b)be made for the purpose of controlling the amount of any sum released in pursuance of the exclusion in respect of an item of expenditure.

(3)A required condition made for the purpose mentioned in subsection (2)(b) may (for example)—

(a)provide for sums to be released only with the agreement of the enforcement authority;

(b)provide for a sum to be released in respect of an item of expenditure only if the court has assessed the amount allowed by regulations under section 286B in respect of that item and the sum is released for payment of the assessed amount;

(c)provide for a sum to be released in respect of an item of expenditure only if—

(i)the enforcement authority agrees to its release, or

(ii)the court has assessed the amount allowed by regulations under section 286B in respect of that item and the sum is released for payment of the assessed amount.

(4)Before making regulations under this section, the Lord Chancellor must consult such persons as he considers appropriate.

Definitions used in section 286A 2

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
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

Cases considering section 286A 3

National Crime Agency v Simkus

[2016] EWHC 728 (Admin) · 8 April 2016Defines

The provision is identified as containing the required conditions applicable to a legal-expense exclusion. The judgment does not separately construe those conditions. (see para [4])

Serious Organised Crime Agency (SOCA) v Azam & Ors

[2013] EWHC 1480 (QB) · 3 June 2013

Section 286A is identified as containing required conditions to which an exclusion for legal expenses must be subject. The court did not separately construe those conditions. (see para [48])

Serious Organised Crime Agency v Szepietowski & Ors

[2009] EWHC 344 (Ch) · 27 February 2009

Confirms the statutory power for regulations to specify the required conditions attached to legal-expenses exclusions. (see para [15])

What each judgment says about section 286A is in the case-law panel in the full Act.

Amendments and notes

1 notes from legislation.gov.uk

Amendments

  1. F881Ss. 286A, 286B inserted (1.8.2005) by Serious Organised Crime and Police Act 2005 (c. 15), s. 178(8), Sch. 6 para. 20; S.I. 2005/2026, art. 2(b)