Proceeds of Crime Act 2002, section 447

Interpretation

Part 11 Co-operation

(1)An external request is a request by an overseas authority to prohibit dealing with relevant property which is identified in the request.

(2)An external order is an order which—

(a)is made by an overseas court where property is found or believed to have been obtained as a result of or in connection with criminal conduct, and

(b)is for the recovery of specified property or a specified sum of money.

(3)An external investigation is an investigation by an overseas authority into—

(a)F1878whether property has been obtained as a result of or in connection with criminal conduct, ...

[F1879 (aa)the extent or whereabouts of property obtained as a result of or in connection with criminal conduct, orF1879]

(b)whether a money laundering offence has been committed.

(4)Property is all property wherever situated and includes—

(a)money;

(b)all forms of property, real or personal, heritable or moveable;

(c)things in action and other intangible or incorporeal property.

(5)Property is obtained by a person if he obtains an interest in it.

(6)References to an interest, in relation to property other than land, include references to a right (including a right to possession).

[F1880 (6A)A person who obtains a pecuniary advantage as a result of or in connection with conduct is to be taken to obtain, as a result of or in connection with the conduct, a sum of money equal to the value of the pecuniary advantage.

(6B)References to property or a pecuniary advantage obtained in connection with conduct include references to property or a pecuniary advantage obtained both in that connection and some other.F1880]

(7)Property is relevant property if there are reasonable grounds to believe that it may be needed to satisfy an external order which has been or which may be made.

(8)Criminal conduct is conduct which—

(a)constitutes an offence in any part of the United Kingdom, or

(b)would constitute an offence in any part of the United Kingdom if it occurred there.

(9)A money laundering offence is conduct carried out in a country or territory outside the United Kingdom and which if carried out in the United Kingdom would constitute any of the following offences—

(a)an offence under section 327, 328 or 329;

(b)an attempt, conspiracy or incitement to commit an offence specified in paragraph (a);

(c)aiding, abetting, counselling or procuring the commission of an offence specified in paragraph (a).

(10)An overseas court is a court of a country or territory outside the United Kingdom.

(11)An overseas authority is an authority which has responsibility in a country or territory outside the United Kingdom—

(a)for making a request to an authority in another country or territory (including the United Kingdom) to prohibit dealing with relevant property,

(b)for carrying out an investigation into whether property has been obtained as a result of or in connection with criminal conduct, or

(c)for carrying out an investigation into whether a money laundering offence has been committed.

(12)This section applies for the purposes of this Part.

Definitions used in section 447 2

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
land

(6E) In sub-paragraph (6B) “land” includes part of a building and part of any other structure.

Defined in Sch.9 para.1(6E) · see it in the full Act

Cases considering section 447 13

King (Respondent) v Director of the Serious Fraud Office (Appellant) (On Appeal from the Court of Appeal Criminal Division)

[2009] UKHL 17 · 18 March 2009Limits

The definition of an external request requires a request by an overseas authority to prohibit dealings with relevant property identified in the request. The House used that definition as part of the scheme linking jurisdiction to identified property in England and Wales (see Lord Phillips, “The statutory scheme”; “The natural meaning of the Order”). Cited only. The definition identifies an external order as an overseas order for recovery of specified property or a specified sum connected with criminal conduct. The House used it to explain that restraint preserves property which may be needed to satisfy such an order (see Lord Phillips, “The statutory scheme”; “The natural meaning of the Order”). Although property is defined as all property wherever situated, the meaning remains contextual. Where the external-request Order expressly or impliedly concerns property in England and Wales, the definition covers only property situated there (see Lord Phillips, “The natural meaning of the Order”). Cited only. Cited only. Relevant property is property reasonably believed to be needed to satisfy an existing or prospective external order. The House used this definition to explain the preservative purpose of restraint (see Lord Phillips, “The statutory scheme”; “The natural meaning of the Order”). Cited only.

Blue Holdings & Ors v National Crime Agency

[2016] EWCA Civ 760 · 19 July 2016

The court considered whether the property was found or believed to have been obtained through or in connection with criminal conduct. It held that the appellants had already received sufficient information to challenge that issue (see para [56]). The court applied the low threshold of reasonable grounds to believe that property may be needed to satisfy an external order. That threshold supported maintaining confidentiality about whether the assets were relevant property (see para [56]).

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

[2011] EWCA Civ 578 · 18 May 2011Interprets

Section 447(10) defines overseas court as a court of a country or territory outside the United Kingdom (see para [97]). Section 447(2) was considered in defining an external order and addressing the apparent significance of the word where. The statutory scheme nevertheless envisages recognition and enforcement of specified-property orders made overseas (see paras [97]-[105]). Section 447(4) defines property for external orders as property wherever situated, supporting the wider statutory scheme for recognition and enforcement (see paras [94]; [97]-[100]). Section 447(5) was cited as one of the provisions to which the external-order regime requires regard (see para [105]). Section 447(6) was cited as one of the provisions to which the external-order regime requires regard (see para [105]). Section 447(8) was cited as one of the provisions to which the external-order regime requires regard (see para [105]).

What each judgment says about section 447 is in the case-law panel in the full Act.

Explanatory note

599.Section 447(2) makes an external order, which is made in relation to the recovery of the proceeds of crime, enforceable in the United Kingdom regardless of the form it takes. It could be an order made against a person (an “in personam” order) or an order made against property (an “in rem” order, as in civil forfeiture proceedings in the USA). It could be a forfeiture order (an order changing the title of property), an order to a person to pay a sum of money or some other kind of order.

600.The external order must have been made by an overseas court (as defined by subsection (10)). It is immaterial what kind of court proceedings the external order is made in. It could be made in criminal proceedings, civil proceedings or some other court proceedings. However, non-court orders such as “administrative” confiscation orders made by police officers and similar authorities are excluded from this scheme.

601.An external order is defined as being for the recovery of specified property or a specified sum of money (subsection (2)(b)). This will enable external orders to be enforced, whether they are orders for the recovery of particular tainted property or orders for specified sums of money that may be satisfied out of any property, legally or illegally obtained.

602.Subsection (11) defines “overseas authority”. This section of the Act refers to “overseas authority” rather than “overseas government” because it will not always be the government of a country which has responsibility for the functions outlined at subsection (11)(a) – (c).

All the explanatory notes for the Act

Amendments and notes

5 notes from legislation.gov.uk

Amendments

  1. F1878Word in s. 447(3)(a) repealed (E.W.) (1.7.2005) by Serious Organised Crime and Police Act 2005 (c. 15), s. 178(8), Sch. 17 Pt. 2; S.I. 2005/1521, art. 3(1)(ee)
  2. F1879S. 447(3)(aa) inserted (1.7.2005) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 108(4), 178(8); S.I. 2005/1521, art. 3(1)(d)
  3. F1880S. 447(6A)(6B) inserted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 39, 88(1); S.I. 2015/820, reg. 3(l)

Modifications

  1. C262S. 447(9)(b) modified (E.W.N.I.) (1.10.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 6 para. 44(c) (with Sch. 13 para. 5); S.I. 2008/2504, art. 2(a)

Commencement

  1. I408S. 447 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.