Explanatory note

This Order amends the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (S.I. 2005/3181) (“the 2005 Order”) in relation to giving effect in Northern Ireland and Scotland to external requests within the meaning of section 447 of the Proceeds of Crime Act 2002 (c. 29) (“the Act”).

The provisions in the 2005 Order for giving effect to external requests broadly correspond with provisions in the Act for giving effect to confiscation orders under the Act (“the domestic provisions”). The amendments made by this Order are consequential on the amendments made to the domestic provisions by the Policing and Crime Act 2009 (c. 26) and the Serious Crime Act 2015 (c. 9) which came into force in Northern Ireland and Scotland on 1st March 2016 (see commencement orders S.I. 2016/147 (C. 11) and S.I. 2016/148 (C. 12)).

Part 2 of this Order makes minor and consequential amendments to Part 1 of the 2005 Order (general provisions).

Part 3 of this Order makes amendments to Part 2 of the 2005 Order (giving effect in England and Wales to external requests in connection with criminal investigations or proceedings and to external orders arising from such proceedings). Article 9(6) of the 2005 Order requires the court to discharge a restraint order if (within a reasonable time) an external order has not been registered under Part 2 of the 2005 Order. A member state of the EU might make a confiscation order in respect of property which is subject to such a restraint order, which the member state may then register as an overseas confiscation order under the Criminal Justice and Data Protection (Protocol No 36) Regulations 2014 (S.I. 2014/3141) (“the 2014 Regulations”). Article 7 of this Order makes an amendment to Article 9(6) of the 2005 Order to the effect that, where there is no registration of an external order under the procedure in the 2005 Order, the court is not required to discharge the restraint order if an overseas confiscation order in respect of the same property has been registered in accordance with the 2014 Regulations.

In addition, article 9 of this Order amends the definition of an “accredited financial investigator” in Article 55 (which applies for the purposes of Part 2 of the 2005 Order), to clarify that it refers to accredited financial investigators under the direction of a relevant Director as defined in section 352(5A) of the Act.

Part 4 of this Order makes amendments to Part 3 of the 2005 Order (giving effect in Scotland to external requests in connection with criminal investigations or proceedings and to external orders arising from such proceedings). Article 11 amends paragraph 2(c) of Article 57 of the 2005 Order (conditions for court to give effect to external request) to state that, for the court to give effect to an external request where a criminal investigation has started but criminal proceedings have not commenced, there must be reasonable grounds to suspect that the accused has benefited from his conduct. Article 12 of this Order amends article 58 of the 2005 Order to include a requirement for the applicant for a restraint order to report to the court on the progress of an investigation, and a requirement for the court to recall the restraint order if proceedings are not started within a reasonable time. Article 13(b) of this Order makes a similar amendment to Article 7, in respect of the recall of restraint orders made in Scotland where an overseas confiscation order has been registered in accordance with the 2014 Regulations.

Article 14 of this Order inserts new articles 70A and 70B into the 2005 Order, which provide the court with a power to make compliance orders for the purpose of ensuring that an external order is effective. These provisions are equivalent to articles 24A, 24B and 24C of the 2005 Order, which apply in respect of England and Wales, and they reflect the equivalent domestic provisions in Scotland at sections 97B and 97D of the Act.

The remaining provisions in Part 4 of this Order, and the provisions in Part 7 of this Order, make minor amendments to Part 3 of, and Schedule 1 to, the 2005 Order in order to correct or clarify certain provisions. In addition, consequential amendments are made to Schedule 1 to the 2005 Order, further to the amendments made by the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17) to Schedule 3 to the Act.

Part 5 of this Order makes amendments to Part 4 of the 2005 Order (giving effect in Northern Ireland to external requests in connection with criminal investigations or proceedings and to external orders arising from such proceedings). Article 21 amends paragraph 2(c) of Article 94 of the 2005 Order (conditions for court to give effect to external request) to state that, for the court to give effect to an external request where a criminal investigation has started but criminal proceedings have not commenced, there must be reasonable grounds to suspect that the accused has benefited from his conduct. Article 22 of this Order amends article 95 of the 2005 Order to include a requirement for the applicant for a restraint order to report to the court on the progress of an investigation, and a requirement for the court to recall the restraint order if proceedings are not started within a reasonable time.

Article 23 of this Order inserts article 95A into the 2005 Order, which allows the court to authorise the detention of property which has been seized under a relevant seizure power. Article 25 inserts Article 98A into the 2005 Order, which provides that property may continue to be detained pending any appeal against a decision to discharge or vary a restraint order, or any subsequent further appeal. Equivalent provisions for the rest of the United Kingdom can be found at Articles 8A and 11A (for England and Wales) and 58A and 60A (for Scotland).

Article 27 of this Order inserts a new Chapter 1A into Part 4 of the 2005 Order. This provides search and seizure powers for officers who are dealing with external requests, and specifies the conditions which must be met, and the approval which must be obtained, for the powers to be exercised. Equivalent provisions for the rest of the United Kingdom are made by articles 17A-17L for England and Wales, and articles 65A-65L for Scotland. Articles 34 and 36 of this Order make consequential amendments to article 140 and 141 of the 2005 Order in this respect.

Article 28 of this Order inserts new articles 110A, 110B and 110C into the 2005 Order, which provide the court with a power to make compliance orders for the purpose of ensuring that an external order is effective. These provisions are equivalent to articles 24A, 24B and 24C of the 2005 Order, which apply in respect of England and Wales, and they reflect the equivalent domestic provisions in Northern Ireland at sections 163A and 163B of the Act. Article 29 of this Order amends article 112 of the 2005 Order (time for payment). These amendments provide that the court can make an order for payment of a confiscation order in specified periods, if it is satisfied that the Defendant cannot repay the full amount on the date the order is made. Equivalent provisions for England and Wales are made by article 26 of the 2005 Order.

Article 33 of this Order inserts a new chapter 3A into Part 4 of the 2005 Order, relating to seized personal property. This includes (at new Articles 134A and 134B) a power to allow the court to make an order authorising an appropriate officer to realise any seized property if an external order against the property holder is made and a receiver has not been appointed, and to recover costs of storing and realising the property. Article 30 of this Order makes a consequential amendment to article 120 of the 2005 Order in this respect. Equivalent provisions are made for the rest of the United Kingdom in the 2005 Order, by articles 48A-48D for England and Wales, and 86A-86D for Scotland.

Part 6 of this Order amends Part 5 of the 2005 Order (giving effect in the United Kingdom to external orders by means of civil recovery). Article 39 of this Order amends article 177 of the 2005 Order, which provides that a recovery order can make provision for the payment of reasonable legal expenses in respect of related proceedings under Part 5 of the 2005 Order. This provision is now amended to include related proceedings under Part 4A of the 2005 Order, ensuring that reasonable legal expenses incurred in proceedings involving related prohibition orders can also be paid.

An impact assessment has not been produced for this instrument as it has no direct impact on business, the public sector, charities or voluntary bodies.