Proceeds of Crime Act 2002, section 444

External requests and orders

Part 11 Co-operation

(1)Her Majesty may by Order in Council—

(a)make provision for a prohibition on dealing with property which is the subject of an external request;

(b)make provision for the realisation of property for the purpose of giving effect to an external order.

(2)An Order under this section may include provision which (subject to any specified modifications) corresponds to any provision of Part 2, 3 or 4 or Part 5 except Chapter 3.

(3)An Order under this section may include—

[F1864 (a)provision about the functions of any of the listed persons in relation to external requests and orders;F1864]

[F1865 (aa)provision creating offences in relation to external requests and orders which are equivalent to the offences created by section 453B;F1865]

(b)provision about the registration of external orders;

(c)provision about the authentication of any judgment or order of an overseas court, and of any other document connected with such a judgment or order or any proceedings relating to it;

(d)provision about evidence (including evidence required to establish whether proceedings have been started or are likely to be started in an overseas court);

(e)provision to secure that any person affected by the implementation of an external request or the enforcement of an external order has an opportunity to make representations to a court in the part of the United Kingdom where the request is being implemented or the order is being enforced.

[F1866 (4) For the purposes of subsection (3)(a) “the listed persons” are—

(a)the Secretary of State;

(b)the Lord Advocate;

(c)the Scottish Ministers;

[F1867 (ca)the Department of Justice in Northern Ireland;F1867]

[F1868 (d)the National Crime Agency;F1868]

(e)the Director of Public Prosecutions;

(f)the Director of Public Prosecutions for Northern Ireland; [F1869 andF1869]

(g)the Director of the Serious Fraud Office; F1870...

F1870 (h). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .F1866]

Definitions used in section 444 1

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

Cases considering section 444 8

Perry and others v Serious Organised Crime Agency

[2012] UKSC 35 · 25 July 2012Interprets

Section 444 provides for Orders in Council enabling assistance with external requests and external orders. The court used it, with the 2005 Order, to confirm a reciprocal scheme confined to the United Kingdom property that is the subject of the request (see paras [58]-[64]).

Blue Holding & Ors v United States of America

[2014] EWCA Civ 1291 · 9 October 2014

The provision authorises an Order in Council to prohibit dealings with property identified in an external request and to realise property to give effect to an external order. It formed the statutory foundation of the comprehensive regime which could not be circumvented through section 25 (see paras [39]; [60]; [84]-[87]).

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

[2011] EWCA Civ 578 · 18 May 2011Interprets

Section 444 was interpreted as providing for external requests and orders, including orders corresponding to Part 5, and supported recognition and enforcement in the United Kingdom of overseas recovery orders (see paras [94]-[100]).

What each judgment says about section 444 is in the case-law panel in the full Act.

Explanatory note

594.Section 444 provides for the freezing of property in the United Kingdom which may be needed to satisfy overseas orders in relation to the recovery of criminal proceeds, and for the enforcement of such orders by the realisation of property in any part of the United Kingdom. Such provision is to be made by Order in Council, and corresponds to provisions in Parts 2, 3 & 4 or Part 5 (excluding Chapter 3). Similar provisions in existing legislation are to be found in sections 39 and 40 of the Drug Trafficking Act 1994, sections 96 and 97 of the Criminal Justice Act 1988, sections 40 and 41 of the Proceeds of Crime (Scotland) Act 1995 and Article 42 of the Proceeds of Crime (Northern Ireland) Order 1996.

595.It should be noted that there is another scheme, in section 9 of the Criminal Justice (International Co-operation) Act 1990, for the enforcement in the United Kingdom, also by Order in Council, of forfeiture orders made overseas. However, these forfeiture orders are restricted to orders for the disposal of “instrumentalities” of crime (i.e. items used, or intended for use, in the commission of criminal offences). The Act makes no change to section 9 and does not affect the operation of the Orders in Council made under it.

596.It should also be noted that section 444 will, as in domestic cases under Parts 2 to 4 of the Act, enable restraint orders to be granted from the start of a criminal investigation. The Home Secretary may therefore, by Order in Council under this section, provide for the United Kingdom’s courts to restrain assets at the request of a foreign jurisdiction at an earlier stage in proceedings than is possible at present.

597.Under current legislation, assistance in freezing property and enforcing overseas orders may only be granted to countries and territories which have been “designated” for the purpose. Section 444 dispenses with the designation procedure and has been constructed so that asset recovery assistance can, like other forms of judicial co-operation under the Criminal Justice (International Co-operation) Act 1990 be granted to an external jurisdiction without the need for the country concerned to be designated.

All the explanatory notes for the Act

Amendments and notes

8 notes from legislation.gov.uk

Amendments

  1. F1864S. 444(3)(a) substituted (1.7.2005) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 108(2), 178(8); S.I. 2005/1521, art. 3(1)(d)
  2. F1865S. 444(3)(aa) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 24(2), 58(1)(6); S.I. 2018/78, reg. 3(i); S.I. 2021/724, reg. 2(1)(l)
  3. F1866S. 444(4) inserted (1.7.2005) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 108(3), 178(8); S.I. 2005/1521, art. 3(1)(d)
  4. F1867S. 444(4)(ca) 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. 70 (with arts. 28-31)
  5. F1868S. 444(4)(d) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 149; S.I. 2013/1682, art. 3(v)
  6. F1869Word in s. 444(4)(f) inserted (27.3.2014) by The Public Bodies (Merger of the Director of Public Prosecutions and the Director of Revenue and Customs Prosecutions) Order 2014 (S.I. 2014/834), art. 1(1), Sch. 2 para. 32(a)
  7. F1870S. 444(4)(h) and word omitted (27.3.2014) by virtue of The Public Bodies (Merger of the Director of Public Prosecutions and the Director of Revenue and Customs Prosecutions) Order 2014 (S.I. 2014/834), art. 1(1), Sch. 2 para. 32(b)

Commencement

  1. I405S. 444 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.