Crime (International Co-operation) Bill [HL]—
Amendments to be debated in the House of Lordscontinued

House of Lords

back to previous amendments

 

Overseas freezing orders

 25D   (1)   Paragraph 25E applies where an overseas freezing order made by an appropriate court or authority in a participating country is received by the Secretary of State from the court or authority which made or confirmed the order.
(2)      An overseas freezing order is an order prohibiting dealing with property—
(a)  which is in the United Kingdom,
(b)  which the appropriate court or authority considers is likely to be used for the purposes of a listed offence or is the proceeds of the commission of such an offence, and
(c)  in respect of which an order has been or may be made by a court exercising criminal jurisdiction in the participating country for the forfeiture of the property,
  and in respect of which the following requirements of this paragraph are met.
(3)      The action which the appropriate court or authority considered would constitute or, as the case may be, constituted the listed offence is action done as an act of terrorism or for the purposes of terrorism.
(4)      The order must relate to—
(a)  criminal proceedings instituted in the participating country, or
(b)  a criminal investigation being carried on there.
(5)      The order must be accompanied by a certificate which gives the specified information; but a certificate may be treated as giving any specified information which is not given in it if the Secretary of State has the information in question.
(6)      The certificate must—
(a)  be signed by or on behalf of the court or authority which made or confirmed the order,
(b)  include a statement as to the accuracy of the information given in it,
(c)  if it is not in English, include a translation of it into English.
  The signature may be an electronic signature.
(7)      The order must be accompanied by an order made by a court exercising criminal jurisdiction in that country for the forfeiture of the property, unless the certificate indicates when such an order is expected to be sent.
(8)      An appropriate court or authority in a participating country in relation to an overseas freezing order is—
(a)  a court exercising criminal jurisdiction in the country,
(b)  a prosecuting authority in the country,
(c)  any other authority in the country which appears to the Secretary of State to have the function of making such orders.
(9)      References in paragraphs 25E to 25G to an overseas freezing order include its accompanying certificate.
 

Enforcement of overseas freezing orders

 25E   (1)   Where this paragraph applies the Secretary of State must send a copy of the overseas freezing order to the Court of Session and to the Lord Advocate.
(2)      The court is to consider the overseas freezing order on its own initiative within a period prescribed by rules of court.
(3)      Before giving effect to the overseas freezing order, the court must give the Lord Advocate an opportunity to be heard.
(4)      The court may decide not to give effect to the overseas freezing order only if, in its opinion, giving effect to it would be incompatible with any of the Convention rights (within the meaning of the Human Rights Act 1998).
 25F      The Court of Session may postpone giving effect to an overseas freezing order in respect of any property—
(a)  in order to avoid prejudicing a criminal investigation which is taking place in the United Kingdom, or
(b)  if, under an order made by a court in criminal proceedings in the United Kingdom, the property may not be dealt with.
 25G   (1)   Where the Court of Session decides to give effect to an overseas freezing order, the Deputy Principal Clerk of Session must—
(a)  register the order in the Books of Council and Session,
(b)  provide for notice of the registration to be given to any person affected by it.
(2)      For the purpose of enforcing an overseas freezing order registered in the Books of Council and Session, the order is to have effect as if it were an order made by the Court of Session.
(3)      Paragraphs 20 and 21 apply to an overseas freezing order registered in the Books of Council and Session as they apply to a restraint order under paragraph 18.
(4)      The Court of Session may cancel the registration of the order, or vary the property to which the order applies, on an application by the Lord Advocate or any other person affected by it, if or to the extent that—
(a)  the court is of the opinion mentioned in paragraph 25E(4), or
(b)  the court is of the opinion that the order has ceased to have effect in the participating country.
(5)      Her Majesty may by Order in Council make further provision for the enforcement in Scotland of registered overseas freezing orders.
(6)      An Order in Council under this paragraph—
(a)  may make different provision for different cases,
(b)  is not to be made unless a draft of it has been laid before and approved by resolution of each House of Parliament."
      In paragraph 28 of that Schedule (enforcement of orders made in designated countries), in sub-paragraph (2), after the second "order" there is inserted "(other than an overseas freezing order within the meaning of paragraph 25D)".
      In Part 3 of that Schedule (forfeiture orders: Northern Ireland) after paragraph 41 there is inserted—
     

    "Domestic and overseas freezing orders

     41A   (1)   This paragraph has effect for the purposes of paragraphs 41B to 41G.
    (2)      The relevant Framework Decision means any Framework Decision of the Council of the European Union which is identified by the Secretary of State by order and is about the execution of orders freezing property or evidence.
    (3)      A listed offence means—
    (a)  an offence described in a prescribed provision of the relevant Framework Decision, or
    (b)  a prescribed offence or an offence of a prescribed description.
    (4)      An order under sub-paragraph (3)(b) which, for the purposes of paragraph 41D, prescribes an offence or a description of offences may require that the conduct which constitutes the offence or offences would, if it occurred in a part of the United Kingdom, constitute an offence in that part.
    (5)      Specified information, in relation to a certificate under paragraph 41B or 41D, means—
    (a)  any information required to be given by a prescribed document annexed to the relevant Framework Decision, or
    (b)  any prescribed information.
    (6)      In this paragraph, "prescribed" means prescribed by an order made by the Secretary of State.
    (7)      A participating country means—
    (a)  a country other than the United Kingdom which is a member State on a day appointed for the commencement of Schedule 4 to the Crime (International Co-operation) Act 2003, and
    (b)  any other member State designated by an order made by the Secretary of State.
    (8)      "Country" includes territory.
    (9)      Section 14(2)(a) applies for the purposes of determining what are the proceeds of the commission of an offence.
     

    Domestic freezing orders: certification

     41B   (1)   If any of the property to which an application for a restraint order relates is property in a participating country, the applicant may ask the High Court to make a certificate under this paragraph.
    (2)      The High Court may make a certificate under this paragraph if—
    (a)  it makes a restraint order in relation to property in the participating country, and
    (b)  it is satisfied that there is a good arguable case that the property is likely to be used for the purposes of a listed offence or is the proceeds of the commission of a listed offence.
    (3)      A certificate under this paragraph is a certificate which—
    (a)  is made for the purposes of the relevant Framework Decision, and
    (b)  gives the specified information.
    (4)      If the High Court makes a certificate under this paragraph—
    (a)  the restraint order must provide for notice of the certificate to be given to the person affected by it, and
    (b)  paragraph 34(2) to (4) applies to the certificate as it apples to the restraint order.
     

    Sending domestic freezing orders

     41C   (1)   If a certificate is made under paragraph 41B, the restraint order and the certificate are to be sent to the Secretary of State for forwarding to—
    (a)  a court exercising jurisdiction in the place where the property is situated, or
    (b)  any authority recognised by the government of the participating country as the appropriate authority for receiving orders of that kind.
    (2)      The restraint order and the certificate must be accompanied by a forfeiture order, unless the certificate indicates when the court expects a forfeiture order to be sent.
    (3)      The certificate must include a translation of it into an appropriate language of the participating country (if that language is not English).
    (4)      The certificate must be signed by or on behalf of the court and must include a statement as to the accuracy of the information given in it.
      The signature may be an electronic signature.
    (5)      If the restraint order and the certificate are not accompanied by a forfeiture order, but a forfeiture order is subsequently made, it is to be sent to the Secretary of State for forwarding as mentioned in sub-paragraph (1).
     

    Overseas freezing orders

     41D   (1)   Paragraph 41E applies where an overseas freezing order made by an appropriate court or authority in a participating country is received by the Secretary of State from the court or authority which made or confirmed the order.
    (2)      An overseas freezing order is an order prohibiting dealing with property—
    (a)  which is in the United Kingdom,
    (b)  which the appropriate court or authority considers is likely to be used for the purposes of a listed offence or is the proceeds of the commission of such an offence, and
    (c)  in respect of which an order has been or may be made by a court exercising criminal jurisdiction in the participating country for the forfeiture of the property,
      and in respect of which the following requirements of this paragraph are met.
    (3)      The action which the appropriate court or authority considered would constitute or, as the case may be, constituted the listed offence is action done as an act of terrorism or for the purposes of terrorism.
    (4)      The order must relate to—
    (a)  criminal proceedings instituted in the participating country, or
    (b)  a criminal investigation being carried on there.
    (5)      The order must be accompanied by a certificate which gives the specified information; but a certificate may be treated as giving any specified information which is not given in it if the Secretary of State has the information in question.
    (6)      The certificate must—
    (a)  be signed by or on behalf of the court or authority which made or confirmed the order,
    (b)  include a statement as to the accuracy of the information given in it,
    (c)  if it is not in English, include a translation of it into English.
      The signature may be an electronic signature.
    (7)      The order must be accompanied by an order made by a court exercising criminal jurisdiction in that country for the forfeiture of the property, unless the certificate indicates when such an order is expected to be sent.
    (8)      An appropriate court or authority in a participating country in relation to an overseas freezing order is—
    (a)  a court exercising criminal jurisdiction in the country,
    (b)  a prosecuting authority in the country,
    (c)  any other authority in the country which appears to the Secretary of State to have the function of making such orders.
    (9)      References in paragraphs 41E to 41G to an overseas freezing order include its accompanying certificate.
     

    Enforcement of overseas freezing orders

     41E   (1)   Where this paragraph applies the Secretary of State must send a copy of the overseas freezing order to the High Court and to the Director of Public Prosecutions for Northern Ireland.
    (2)      The court is to consider the overseas freezing order on its own initiative within a period prescribed by rules of court.
    (3)      Before giving effect to the overseas freezing order, the court must give the Director an opportunity to be heard.
    (4)      The court may decide not to give effect to the overseas freezing order only if, in its opinion, giving effect to it would be incompatible with any of the Convention rights (within the meaning of the Human Rights Act 1998).
     41F      The High Court may postpone giving effect to an overseas freezing order in respect of any property—
    (a)  in order to avoid prejudicing a criminal investigation which is taking place in the United Kingdom, or
    (b)  if, under an order made by a court in criminal proceedings in the United Kingdom, the property may not be dealt with.
     41G   (1)   Where the High Court decides to give effect to an overseas freezing order, it must—
    (a)  register the order in that court,
    (b)  provide for notice of the registration to be given to any person affected by it.
    (2)      For the purpose of enforcing an overseas freezing order registered in the High Court, the order is to have effect as if it were an order made by that court.
    (3)      Paragraph 35 applies to an overseas freezing order registered in the High Court as it applies to a restraint order under paragraph 33.
    (4)      The High Court may cancel the registration of the order, or vary the property to which the order applies, on an application by the Director of Public Prosecution for Northern Ireland or any other person affected by it, if or to the extent that—
    (a)  the court is of the opinion mentioned in paragraph 41E(4), or
    (b)  the court is of the opinion that the order has ceased to have effect in the participating country.
    (5)      Her Majesty may by Order in Council make further provision for the enforcement in Northern Ireland of registered overseas freezing orders.
    (6)      An Order in Council under this paragraph—
    (a)  may make different provision for different cases,
    (b)  is not to be made unless a draft of it has been laid before and approved by resolution of each House of Parliament."
      In paragraph 44 of that Schedule (enforcement of orders made in designated countries), in sub-paragraph (2), after the second "order" there is inserted "(other than an overseas freezing order within the meaning of paragraph 41D)"."
Page 70, line 18, leave out paragraph 5 and insert—
      "In Part 4 of that Schedule (insolvency), in paragraph 45, in paragraph (c) of the definition of "restraint order", for the words from "external" to "virtue" there is substituted "order which is enforceable in England and Wales, Scotland or Northern Ireland by virtue of paragraph 11G, 25G or 41G or"."

 
back to previous pagecontinue to next page
 
 
House of Commons home page Houses of Parliament home page House of Lords home page search page enquiries index

©Parliamentary copyright 2003
20 February 2003