| Description | Circular No: JD/1/2006 - Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 |
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| ISBN | (Web Only) |
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| Official Print Publication Date | |
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| Website Publication Date | January 10, 2006 |
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Justice Department Criminal Justice Division Circular No: JD/1/2006 Lord Justice Clerk The Principal Clerk of Session & Justiciary Sheriff Principal The Sheriff Association Dean of the Faculty of Advocates Law Society of Scotland | St Andrew's House Regent Road Edinburgh EH1 3DG
Telephone: 0131-244 2068 Fax: 0131-244 2623 George.dickson@scotland.gsi.gov.uk http://www.scotland.gov.uk
Your ref: Our ref:
4 Janauary 2006 |
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Dear Sir/Madam
PROCEEDS OF CRIME ACT 2002 (EXTERNAL REQUESTS AND ORDERS) ORDER 2005
Introduction
1. This Order is made in exercise of the powers conferred under section 444 and 459(2) of the Proceeds of Crime Act 2002. It sets out the provisions for the United Kingdom to respond and co-operate with other countries in freezing and confiscating assets. The Order was made in the Westminster Parliament on 15 November and came into force on 1 January 2006.
Background
2. Section 444 of the Proceeds of Crime Act 2002 provides for the freezing of property in the United Kingdom which may be needed to satisfy overseas requests in relation to ongoing proceedings for the recovery of criminal proceeds. The section also provides for the registration and enforcement of overseas confiscation orders by the realisation of property in any part of the United Kingdom.
Details of the Order
3. This Order provides for the freezing and recovery for both confiscation following a criminal conviction and civil recovery which is not reliant on conviction. The provisions in the Order correspond to domestic provisions under the Proceeds of Crime Act 2002. These provisions will apply to the proceeds of crime located in the United Kingdom which are subject to investigation or proceedings in an overseas jurisdiction.
4. Part 3 of the Order makes provision in relation to external requests and external orders relative to property situated in Scotland. Applications for restraint orders are to be made to the Court of Session by the Lord Advocate. The conditions for the grant of a restraint order and the applicable procedure are provided for in articles 57 to 60, 64 and 65. Articles 61 and 62 allow the court to grant warrant for inhibition against any person specified in a restraint order for arrestment in relation to moveable property to which the order applies. Article 63 provides for the appointment of management administrators in respect of property subject to restraint orders.
5. Chapter 2 of the Order provides for applications for registration of external orders to be made to the Court of Session by the Lord Advocate. The conditions and procedure for registration are set out in articles 68 to 72. Articles 73 to 75 provide for the appointment of enforcement administrators and set out the powers of those administrators. Article 76 provides that where the external order specifies a sum of money and the court confers power on the receiver in respect of the offender's family home, the administrator must obtain the contents specified in the article or the authority of the court before disposing of any right or interest in the family home.
6. Copies of the Order will be available from HMSO: www.opsi.gov.uk
7. Any enquiries about the Order relating to Civil Recovery can be made to Lorna Harris and to Lesley Thomson/David Harvie if it relates to Criminal Confiscation. They can be contacted at the Crown Office on 0131-222 3139.
Yours sincerely
GEORGE DICKSON