Proceeds of Crime Act 2002, section 49

Powers

Part 2 Confiscation: England and Wales

(1)If the court appoints a receiver under section 48 it may act under this section on the application of the person who applied for the restraint order.

(2)The court may by order confer on the receiver the following powers in relation to any realisable property to which the restraint order applies—

(a)power to take possession of the property;

(b)power to manage or otherwise deal with the property;

(c)power to start, carry on or defend any legal proceedings in respect of the property;

(d)power to realise so much of the property as is necessary to meet the receiver’s remuneration and expenses.

(3)The court may by order confer on the receiver power to enter any premises in England and Wales and to do any of the following—

(a)search for or inspect anything authorised by the court;

(b)make or obtain a copy, photograph or other record of anything so authorised;

(c)remove anything which the receiver is required or authorised to take possession of in pursuance of an order of the court.

(4)The court may by order authorise the receiver to do any of the following for the purpose of the exercise of his functions—

(a)hold property;

(b)enter into contracts;

(c)sue and be sued;

(d)employ agents;

(e)execute powers of attorney, deeds or other instruments;

(f)take any other steps the court thinks appropriate.

(5)The court may order any person who has possession of realisable property to which the restraint order applies to give possession of it to the receiver.

(6)The court—

(a)may order a person holding an interest in realisable property to which the restraint order applies to make to the receiver such payment as the court specifies in respect of a beneficial interest held by the defendant or the recipient of a tainted gift;

(b)may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

(7)Subsections (2), (5) and (6) do not apply to property for the time being subject to a charge under any of these provisions—

(a)section 9 of the Drug Trafficking Offences Act 1986 (c. 32);

(b)section 78 of the Criminal Justice Act 1988 (c. 33);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));

(d)section 27 of the Drug Trafficking Act 1994 (c. 37);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

(8)The court must not—

(a)confer the power mentioned in subsection (2)(b) or (d) in respect of property, or

(b)exercise the power conferred on it by subsection (6) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

[F255 (8A)Subsection (8), so far as relating to the power mentioned in subsection (2)(b), does not apply to property which—

(a)is perishable; or

(b)ought to be disposed of before its value diminishes.F255]

(9)The court may order that a power conferred by an order under this section is subject to such conditions and exceptions as it specifies.

(10)Managing or otherwise dealing with property includes—

(a)selling the property or any part of it or interest in it;

(b)carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

(c)incurring capital expenditure in respect of the property.

Definitions used in section 49 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 49 8

Gale and another v Serious Organised Crime Agency

[2011] UKSC 49 · 26 October 2011Defines

Section 49 gave a Part 2 receiver broader powers to realise and deal with assets than those possessed by a Part 5 interim receiver (see paras [70]; [99]). For a Part 2 receiver, managing or dealing with property included selling it. The absence of an equivalent general power for a Part 5 interim receiver was material (see paras [70]; [98]-[99]). The provision formed part of the broader Part 2 power to manage or otherwise deal with property, including through sale (see para [70]). Unlike the Part 5 scheme, the Part 2 scheme expressly permitted realisation of property to meet a receiver’s remuneration and expenses (see paras [70]; [99]).

Crown Prosecution Service v The Eastenders Group & Anor

[2012] EWCA Crim 2436 · 23 November 2012Limits

The provision permits realisation of property to meet a receiver’s remuneration and expenses. It supports the ordinary rule of payment from valid receivership assets, but did not authorise recovery from the companies’ assets when the appointment lacked its statutory basis (see paras [31]; [75]; [82]-[84]).

JS v R

[2009] EWCA Crim 2972 · 29 September 2009Interprets

Section 49(8) did not make it self-evident that a co-defendant holding an interest in restrained property had to receive material protected against disclosure. The court had to assess whether access could realistically assist relevant representations which justice required. (see [10]; [20])

What each judgment says about section 49 is in the case-law panel in the full Act.

Explanatory note

100.Section 49 sets out the powers that the court can confer on a management receiver. They are based on the powers that receivers use in practice under the earlier legislation to manage property pending conviction and confiscation. Subsection (7) prevents the powers from being exercised in relation to property subject to a charging order under earlier confiscation legislation in England and Wales or Northern Ireland (there was no provision for charging orders in the Scottish legislation).

All the explanatory notes for the Act

Amendments and notes

3 notes from legislation.gov.uk

Amendments

  1. F255S. 49(8A) inserted (6.4.2008) by Serious Crime Act 2007 (c. 27), ss. 82(1), 94(1); S.I. 2008/755, art. 17(1)(h) (with art. 17(3))

Modifications

  1. C26S. 49(6) excluded (24.2.2003) by Proceeds of Crime Act 2002 (Enforcement in different parts of the United Kingdom) Order 2002 (S.I. 2002/3133), arts. 1, 12(3)

Commencement

  1. I44S. 49 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.