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Crime (International Co-operation) Bill [HL]


Crime (International Co-operation) Bill [HL]
Schedule 4 — Terrorist property: freezing orders

    70

 

          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,

5

                      (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 11E to 11G to an overseas freezing order

10

include its accompanying certificate.

Enforcement of overseas freezing orders

          11E                 (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.

15

                           (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

20

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).

          11F                                   The High Court may postpone giving effect to an overseas

freezing order in respect of any property—

25

                      (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.

30

          11G                 (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.

35

                           (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 7 applies to an overseas freezing order registered in the

High Court as it applies to a restraint order under paragraph 5.

40

                           (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 Prosecutions or any other person affected by it,

if or to the extent that—

                      (a)                     the court is of the opinion mentioned in paragraph 11E(4),

45

or

 

 

Crime (International Co-operation) Bill [HL]
Schedule 4 — Terrorist property: freezing orders

    71

 

                      (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 England and Wales of registered overseas

freezing orders.

5

                           (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.

  4        In paragraph 14 of that Schedule (enforcement of orders made in designated

10

countries), in sub-paragraph (2), after the second “order” there is inserted

“(other than an overseas freezing order within the meaning of paragraph

11D)”.

  5                 In Part 2 of that Schedule (forfeiture orders: Scotland), after paragraph 25

there is inserted—

15

“Domestic and overseas freezing orders

          25A              (1)               This paragraph has effect for the purposes of paragraphs 25B to

25G.

                           (2)                  The relevant Framework Decision means any Framework

Decision of the Council of the European Union which is identified

20

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

25

                      (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 25D, prescribes an offence or a description of offences

may require that the conduct which constitutes the offence or

30

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

25B or 25D, means—

                      (a)                     any information required to be given by a prescribed

35

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—

40

                      (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

45

the Secretary of State.

 

 

Crime (International Co-operation) Bill [HL]
Schedule 4 — Terrorist property: freezing orders

    72

 

                           (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

          25B              (1)               If any of the property to which an application for a restraint order

5

relates is property in a participating country, the applicant may

ask the Court of Session to make a certificate under this paragraph.

                           (2)                  The Court of Session may make a certificate under this paragraph

if—

                      (a)                     it makes a restraint order in relation to property in the

10

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.

15

                           (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 Court of Session makes a certificate under this paragraph—

20

                      (a)                     the restraint order must provide for notice of the certificate

to be given to the person affected by it, and

                      (b)                     paragraph 19(2) to (4) applies to the certificate as it applies

to the restraint order.

Sending domestic freezing orders

25

          25C                 (1)                  If a certificate is made under paragraph 25B, the restraint order

and the certificate are to be sent to the Lord Advocate for

forwarding to—

                      (a)                     a court exercising jurisdiction in the place where the

property is situated, or

30

                      (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

35

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

40

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

45

 

 

Crime (International Co-operation) Bill [HL]
Schedule 4 — Terrorist property: freezing orders

    73

 

          to be sent to the Lord Advocate for forwarding as mentioned in

sub-paragraph (1).

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

5

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,

10

                      (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

15

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

20

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

25

                      (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.

30

                           (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,

35

                      (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

40

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,

45

 

 

Crime (International Co-operation) Bill [HL]
Schedule 4 — Terrorist property: freezing orders

    74

 

                      (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.

5

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

10

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

15

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

20

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

25

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

30

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.

35

                           (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),

40

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

45

orders.

                           (6)                  An Order in Council under this paragraph—

 

 

Crime (International Co-operation) Bill [HL]
Schedule 4 — Terrorist property: freezing orders

    75

 

                      (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.”

  6                 In paragraph 28 of that Schedule (enforcement of orders made in designated

countries), in sub-paragraph (2), after the second “order” there is inserted

5

“(other than an overseas freezing order within the meaning of paragraph

25D)”.

  7                 In Part 3 of that Schedule (forfeiture orders: Northern Ireland), after

paragraph 41 there is inserted—

“Domestic and overseas freezing orders

10

          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

15

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

20

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,

25

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

30

                      (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

35

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.

40

                           (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.

 

 

Crime (International Co-operation) Bill [HL]
Schedule 4 — Terrorist property: freezing orders

    76

 

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—

5

                      (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

10

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.

15

                           (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.

20

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

25

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

30

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).

35

                           (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

40

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).

 

 

 
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