(1) This rule applies where a person who held realisable property wants the court to award compensation for loss suffered in consequence of anything done in relation to that property in connection with confiscation proceedings.
(2) The application must be in writing and may be supported by a witness statement.
(3) The application and any witness statement must be served on the court officer.
(4) The application and any witness statement must be served on—
(a) the person alleged to be in default; and
(b) the person or authority by whom the compensation would be payable,
at least 5 business days before the date fixed by the court for hearing the application, unless the court directs otherwise.
[Note. See section 72 of the Proceeds of Crime Act 2002.]
33.21 Compensation – confiscation order made against absconder
(1) This rule applies where—
(a) the court varies or discharges a confiscation order made against an absconder;
(b) a person who held realisable property suffered loss as a result of the making of that confiscation order; and
(c) that person wants the court to award compensation for that loss.
(2) The application must be in writing and supported by a witness statement which must give details of—
(a) the confiscation order;
(b) the variation or discharge of the confiscation order;
(c) the realisable property to which the application relates; and
(d) the loss suffered by the applicant as a result of the confiscation order.
(3) The application and witness statement must be served on the court officer.
(4) The application and witness statement must be served on the prosecutor at least 5 business days before the date fixed by the court for hearing the application, unless the court specifies a shorter period.
[Note. See section 73 of the Proceeds of Crime Act 2002.]
33.22 Payment of money held or detained in satisfaction of confiscation order
(1) An order under section 67 of the Proceeds of Crime Act 2002 requiring the payment of money to a magistrates’ court officer (‘a payment order’) shall—
(a) be directed to—
(i) the relevant financial institution concerned, where the money is held in an account maintained with that relevant financial institution, or
(ii) the person on whose authority the money is detained, in any other case;
(b) name the person against whom the confiscation order has been made;
(c) state the amount which remains to be paid under the confiscation order;
(d) state the name and address of the relevant financial institution at which the account in which the money ordered to be paid is held and the sort code, if known;
(e) state the name in which the account in which the money ordered to be paid is held and the account number of that account, if the account number is known;
(f) state the amount which the relevant financial institution is required to pay to the court officer under the payment order;
(g) give the name and address of the court officer to whom payment is to be made; and
(h) require the relevant financial institution to make payment within a period of 5 business days beginning on the day on which the payment order is made, unless it appears to the court that a longer or shorter period would be appropriate in the particular circumstances.
(2) In this rule ‘confiscation order’ has the meaning given to it by section 88(6) of the Proceeds of Crime Act 2002.
[Note. Under section 67(8) of the Proceeds of Crime Act 2002, “relevant financial institution” means a bank, a building society, an electronic money institution or a payment institution; “electronic money institution” means an institution or person registered by the Financial Conduct Authority under the Electronic Money Regulations 2011; and “payment institution” means a person registered by that Authority under the Payment Services Regulations 2017.]
33.23 Application to realise seized property or to realise or destroy cryptoassets
(1) This rule applies where a magistrates’ court can make an order—
(a) under section 67A of the Proceeds of Crime Act 2002 authorising the realisation of seized personal property;
(b) under section 67B of the 2002 Act determining any storage, insurance or realisation costs recoverable by the officer;
(c) under section 67ZA of the 2002 Act requiring the realisation of seized cryptoassets; or
(d) under section 67AA of the 2002 Act authorising the destruction of seized cryptoassets.
(2) An applicant for such an order must—
(a) apply in writing; and
(b) serve the application on—
(i) the court officer, and
(ii) any person whom the applicant believes would be affected by an order, including (where the application concerns cryptoassets) the UK-connected cryptoasset service provider which administers the crypto wallet in which the cryptoassets are held.
(3) The application must—
(a) specify the property or cryptoassets concerned;
(b) explain the applicant’s entitlement to apply and, as applicable—
(i) how the proposed realisation of personal property meets the conditions prescribed by section 67A of the 2002 Act,
(ii) how any storage, etc. costs have been calculated,
(iii) how the proposed realisation of cryptoassets meets the conditions prescribed by section 67ZA of the 2002 Act, and
(iv) how the proposed destruction of cryptoassets meets the conditions prescribed by section 67AA of the 2002 Act;
(c) attach any material on which the applicant relies; and
(d) propose the terms of the order, including an assessment of the market value of any cryptoassets ordered to be destroyed.
(4) The court may—
(a) determine the application at a hearing, or without a hearing;
(b) consider an application made orally instead of in writing; and
(c) consider an application which has not been served on a person likely to be affected by an order.
(5) If the court authorises a realisation of personal property or a realisation or destruction of cryptoassets, the applicant must—
(a) notify any person affected by the order who was absent when it was made; and
(b) serve on the court officer a list of those so notified.
[Note. Under sections 67ZA and 67A of the Proceeds of Crime Act 2002, one of the officers listed in section 41A of the Act may apply to a magistrates’ court for authority to realise personal property or cryptoassets seized by such an officer if—
(a) a confiscation order has been made against a person who holds that property or those cryptoassets; and
(b) no receiver has been appointed in relation to that property or those cryptoassets.
Under section 67AA of the 2002 Act, in those same circumstances an officer may apply to a magistrates’ court for authority to destroy cryptoassets if it is not reasonably practicable to realise them or there are reasonable grounds to believe that their realisation would be contrary to the public interest, having regard in particular to how likely it is that the entry of the cryptoassets into general circulation would facilitate criminal conduct by any person.
Under section 67B of the 2002 Act, if a magistrates’ court makes an order under section 67A then on the same or a subsequent occasion the court may determine an amount which may be recovered by the applicant in respect of reasonable costs incurred in storing or insuring the property, or realising it.
In the 2002 Act, for the purposes of the provisions to which this rule refers—
(a) section 84 makes general provisions about property; and
(b) section 84A defines “cryptoasset” and related expressions.]
33.24 Appeal about decision on application to realise seized property or to realise or destroy cryptoassets
(1) This rule applies where on an application under rule 33.23 for an order to realise seized property or to realise or destroy cryptoassets—
(a) a magistrates’ court decides not to make such an order and an officer who is entitled to apply wants to appeal against that decision to the Crown Court, under section 67C(1) of the Proceeds of Crime Act 2002;
(b) a magistrates’ court makes such an order and a person who is affected by that decision, other than the defendant against whom the confiscation order was made, wants to appeal against it to the Crown Court, under section 67C(2) of the 2002 Act; or
(c) a magistrates’ court makes a decision about storage, etc. costs and an officer who is entitled to apply wants to appeal against that decision to the Crown Court, under section 67C(4) of the 2002 Act.
(2) The appellant must serve an appeal notice—
(a) on the Crown Court officer and on any other party; and
(b) not more than 15 business days after the magistrates’ court’s decision, or, if applicable, service of notice under rule 33.23(5).
(3) The appeal notice must—
(a) specify the decision under appeal;
(b) where paragraph (1)(a) applies, explain why the property should be realised; and
(c) in any other case, propose the order that the appellant wants the court to make, and explain why.
(4) Rule 34.11 (Constitution of the Crown Court) applies on such an appeal.
[Note. Under section 67C of the Proceeds of Crime Act 2002, an officer entitled to apply for an order under section 67ZA, 67A, 67AA or 67B of that Act (authority to realise seized property or requirement to realise cryptoassets towards satisfaction of a confiscation order; authority to destroy cryptoassets; determination of storage, etc. costs) may appeal against a refusal to make an order, or against a costs determination; and a person affected by an order, other than the owner defendant against whom the confiscation order was made, may appeal against the order.]
33.25 Application for direction about surplus proceeds
(1) This rule applies where—
(a) on an application under rule 33.23, a magistrates’ court has made an order authorising the realisation of personal property or requiring the realisation of cryptoassets;
(b) an officer holds proceeds of that realisation;
(c) the confiscation order has been fully paid; and
(d) the officer, or a person who had or has an interest in the property or cryptoassets represented by the proceeds, wants a magistrates’ court or the Crown Court to determine under section 67D of the Proceeds of Crime Act 2002—
(i) to whom the remaining proceeds should be paid, and
(ii) in what amount or amounts.
(2) Such a person must—
(a) apply in writing; and
(b) serve the application on—
(i) the court officer, and
(ii) as appropriate, the officer holding the proceeds, or any person to whom such proceeds might be paid.
(3) The application must—
(a) specify the property or cryptoassets realised;
(b) explain the applicant’s entitlement to apply;
(c) describe the distribution proposed by the applicant and explain why that is proposed;
(d) attach any material on which the applicant relies; and
(e) ask for a hearing, if the applicant wants one, and explain why it is needed.
(4) A person who wants to make representations about the application must—
(a) serve the representations on—
(i) the court officer,
(ii) the applicant, and
(iii) any other person to whom proceeds might be paid;
(b) do so as soon as reasonably practicable after service of the application;
(c) attach any material on which that person relies; and
(d) ask for a hearing, if that person wants one, and explain why it is needed.
(5) The court—
(a) must not determine the application unless the applicant and each person on whom it was served—
(i) is present, or
(ii) has had an opportunity to attend or to make representations; but
(b) subject to that, may determine the application—
(i) at a hearing (which must be in private unless the court otherwise directs), or without a hearing, and
(ii) in the absence of any party to the application.
[Note. Under section 67D of the Proceeds of Crime Act 2002, a magistrates’ court or the Crown Court may determine to whom, and in what proportions, any surplus proceeds of realisation must be distributed. Once a magistrates’ court has made such a determination, the Crown Court may not do so, and vice versa.]
33.26 Application for approval to seize property or to search
(1) This rule applies where an officer wants the approval of a magistrates’ court under section 47G of the Proceeds of Crime Act 2002—
(a) under section 47C of that Act, to seize—
(i) realisable property which is not cash or exempt property, or
(ii) any free property which is a cryptoasset-related item; or
(b) to search premises or a person or vehicle for property to be seized, under section 47D, 47E or 47F of that Act.
(2) Such an officer must—
(a) apply in writing; and
(b) serve the application on the court officer.
(3) The application must—
(a) explain—
(i) the applicant’s entitlement to apply, and
(ii) how the proposed seizure meets the conditions prescribed by sections 47B, 47C and, if applicable, 47D, 47E or 47F of the 2002 Act;
(b) if applicable, specify any premises, person or vehicle to be searched;
(c) attach any material on which the applicant relies; and
(d) propose the terms in which the applicant wants the court to give its approval.
(4) The court—
(a) must determine the application—
(i) at a hearing, which must be in private unless the court otherwise directs, and
(ii) in the applicant’s presence; but
(b) may consider an application made orally instead of in writing.
[Note. Under section 47C of the Proceeds of Crime Act 2002, if any of the conditions listed in section 47B of the Act are met then one of the officers listed in section 47A may seize—
(a) realisable property other than cash or exempt property as defined in section 47C, if the officer has reasonable grounds for suspecting that—
(i) the property may otherwise be made unavailable for satisfying any confiscation order that has been or may be made against a defendant; or
(ii) the value of the property may otherwise be diminished as a result of conduct by the defendant or any other person; and
(b) any free property if the officer has reasonable grounds for suspecting that it is a cryptoasset-related item as defined in section 47C.
In the 2002 Act, for the purposes of the provisions to which this rule refers—
(a) section 82 defines “free property”;
(b) section 83 defines “realisable property”;
(c) section 84 makes general provisions about property; and
(d) section 84A defines “cryptoasset” and related expressions.
Under sections 47D, 47E and 47F of the 2002 Act, such an officer may search premises, a person or a vehicle, respectively, for such property, on the conditions listed in those sections.
By sections 47C(6), 47D(2), 47E(4), 47F(6) and 47G of the 2002 Act, such an officer may seize property, and may search for it, only with the approval of a magistrates’ court or, if that is impracticable, the approval of a senior officer (as defined by section 47G), unless in the circumstances it is not practicable to obtain the approval of either.]
(1) This rule applies where an officer who is entitled to apply, or the prosecutor, wants a magistrates’ court to make an order, under section 47M of the Proceeds of Crime Act 2002, extending the period for which seized property may be detained.
(2) Such an officer or prosecutor must—
(a) apply in writing; and
(b) serve the application on—
(i) the court officer, and
(ii) any person whom the applicant believes would be affected by an order.
(3) The application must—
(a) specify—
(i) the property to be detained, and
(ii) whether the applicant wants it to be detained for a specified period or indefinitely;
(b) explain—
(i) the applicant’s entitlement to apply, and
(ii) how the proposed detention meets the conditions prescribed by section 47M of the 2002 Act;
(c) attach any material on which the applicant relies; and
(d) propose the terms of the order.
(4) The court—
(a) must determine the application—
(i) at a hearing, which must be in private unless the court otherwise directs, and
(ii) in the applicant’s presence; but
(b) may—
(i) consider an application made orally instead of in writing,
(ii) require service of the application on the court officer after it has been heard, instead of before.
(5) If the court extends the period for which the property may be detained, the applicant must—
(a) notify any person affected by the order who was absent when it was made; and
(b) serve on the court officer a list of those so notified.
[Note. Under section 47M of the Proceeds of Crime Act 2002, one of the officers listed in that section, or the prosecutor, may apply to a magistrates’ court for an order extending the period of 48 hours for which, under section 47J of the Act, property seized under section 47C may be detained.
On an application to which this rule applies, hearsay evidence within the meaning of section 1(2) of the Civil Evidence Act 1995 is admissible: see section 47Q of the 2002 Act.]
33.28 Application to vary or discharge order for extended detention
(1) This rule applies where an officer who is entitled to apply, the prosecutor, or a person affected by an order to which rule 33.27 applies, wants a magistrates’ court to vary or discharge that order, under section 47N of the Proceeds of Crime Act 2002.
(2) Such a person must—
(a) apply in writing; and
(b) serve the application on—
(i) the court officer, and
(ii) as appropriate, the applicant for the order, or any person affected by the order.
(3) The application must—
(a) specify the order and the property detained;
(b) explain—
(i) the applicant’s entitlement to apply,
(ii) why it is appropriate for the order to be varied or discharged,
(iii) if applicable, on what grounds the court must discharge the order;
(c) attach any material on which the applicant relies;
(d) if applicable, propose the terms of any variation; and
(e) ask for a hearing, if the applicant wants one, and explain why it is needed.
(4) A person who wants to make representations about the application must—
(a) serve the representations on—
(i) the court officer, and
(ii) the applicant;
(b) do so as soon as reasonably practicable after service of the application;
(c) attach any material on which that person relies; and
(d) ask for a hearing, if that person wants one, and explain why it is needed.
(5) The court—
(a) must not determine the application unless the applicant and each person on whom it was served—
(i) is present, or
(ii) has had an opportunity to attend or to make representations; but
(b) subject to that, may determine the application—
(i) at a hearing (which must be in private unless the court otherwise directs), or without a hearing,
(ii) in the absence of any party to the application.
[Note. Under section 47N of the Proceeds of Crime Act 2002, one of the officers listed in section 47M of the Act, the prosecutor, or a person affected by an order under section 47M, may apply to a magistrates’ court for the order to be varied or discharged. Section 47N(3) lists the circumstances in which the court must discharge such an order.
On an application to which this rule applies, hearsay evidence within the meaning of section 1(2) of the Civil Evidence Act 1995 is admissible: see section 47Q of the 2002 Act.]
(1) This rule applies where—
(a) on an application under rule 33.27 for an order extending the period for which property may be detained—
(i) a magistrates’ court decides not to make such an order, and
(ii) an officer who is entitled to apply for such an order, or the prosecutor, wants to appeal against that decision to the Crown Court under section 47O(1) of the Proceeds of Crime Act 2002; or
(b) on an application under rule 33.28 to vary or discharge an order under rule 33.27—
(i) a magistrates’ court determines the application, and
(ii) a person who is entitled to apply under that rule wants to appeal against that decision to the Crown Court under section 47O(2) of the 2002 Act.
(2) The appellant must serve an appeal notice—
(a) on the Crown Court officer and on any other party; and
(b) not more than 15 business days after the magistrates’ court’s decision, or, if applicable, service of notice under rule 33.27(5).
(3) The appeal notice must—
(a) specify the decision under appeal;
(b) where paragraph (1)(a) applies, explain why the detention period should be extended; and
(c) where paragraph (1)(b) applies, propose the order that the appellant wants the court to make, and explain why.
(4) Rule 34.11 (Constitution of the Crown Court) applies on such an appeal.
[Note. Under section 47O of the Proceeds of Crime Act 2002, one of those entitled to apply for an order under section 47M of that Act (extension of detention of property) may appeal against a refusal to make an order, and one of those entitled to apply for the variation or discharge of such an order, under section 47N of that Act, may appeal against the decision on such an application.
On an appeal to which this rule applies, hearsay evidence within the meaning of section 1(2) of the Civil Evidence Act 1995 is admissible: see section 47Q of the 2002 Act.]
(1) This rule applies to applications under sections 58(2) and (3) and 59(2) and (3) of the Proceeds of Crime Act 2002 for leave of the Crown Court to take control of goods or levy distress against property, or to exercise a right of forfeiture by peaceable re-entry in relation to a tenancy, in circumstances where the property or tenancy is the subject of a restraint order or a receiver has been appointed in respect of the property or tenancy.
(2) The application must be made in writing to the Crown Court.
(3) The application must be served on—
(a) the person who applied for the restraint order or the order appointing the receiver; and
(b) any receiver appointed in respect of the property or tenancy,
at least 5 business days before the date fixed by the court for hearing the application, unless the Crown Court specifies a shorter period.
An application for the appointment of a management receiver or enforcement receiver under rule 33.50 may be joined with—
(a) an application for a restraint order under rule 33.45; and
(b) an application for the conferral of powers on the receiver under rule 33.51.
(1) When hearing restraint proceedings and receivership proceedings, the Crown Court may control the evidence by giving directions as to—
(a) the issues on which it requires evidence;
(b) the nature of the evidence which it requires to decide those issues; and
(c) the way in which the evidence is to be placed before the court.
(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.
(3) The court may limit cross-examination in restraint proceedings and receivership proceedings.
(1) The general rule is that, unless the Crown Court orders otherwise, any fact which needs to be proved in restraint proceedings or receivership proceedings by the evidence of a witness is to be proved by their evidence in writing.
(2) Where evidence is to be given in writing under this rule, any party may apply to the Crown Court for permission to cross-examine the person giving the evidence.
(3) If the Crown Court gives permission under paragraph (2) but the person in question does not attend as required by the order, his evidence may not be used unless the court gives permission.
(1) Any party to restraint proceedings or receivership proceedings may apply to the Crown Court to issue a witness summons requiring a witness to—
(a) attend court to give evidence; or
(b) produce documents to the court.
(2) Rule 17.3 (Application for summons, warrant or order: general rules) applies to an application under this rule as it applies to an application under section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965.
Section 2(1) of the Civil Evidence Act 1995 (duty to give notice of intention to rely on hearsay evidence) does not apply to evidence in restraint proceedings and receivership proceedings.
(1) This rule applies where, in the course of restraint proceedings or receivership proceedings, an issue arises as to whether property is realisable property.
(2) The Crown Court may make an order for disclosure of documents.
(3) Part 31 of the Civil Procedure Rules 1998 as amended from time to time shall have effect as if the proceedings were proceedings in the High Court.
(1) Any order which the Crown Court issues in restraint proceedings or receivership proceedings must—
(a) state the name and judicial title of the person who made it;
(b) bear the date on which it is made; and
(c) be sealed by the Crown Court.
(2) The Crown Court may place the seal on the order—
(a) by hand; or
(b) by printing a facsimile of the seal on the order whether electronically or otherwise.
(3) A document purporting to bear the court’s seal shall be admissible in evidence without further proof.
(1) This rule applies where all the parties to restraint proceedings or receivership proceedings agree the terms in which an order should be made.
(2) Any party may apply for a judgment or order in the terms agreed.
(3) The Crown Court may deal with an application under paragraph (2) without a hearing.
(4) Where this rule applies—
(a) the order which is agreed by the parties must be drawn up in the terms agreed;
(b) it must be expressed as being ‘By Consent’; and
(c) it must be signed by the legal representative acting for each of the parties to whom the order relates or by the party if he is a litigant in person.
(5) Where an application is made under this rule, then the requirements of any other rule as to the procedure for making an application do not apply.
(1) The Crown Court may at any time correct an accidental slip or omission in an order made in restraint proceedings or receivership proceedings.
(2) A party may apply for a correction without notice.
(1) No document relating to restraint proceedings or receivership proceedings may be supplied from the records of the Crown Court for any person to inspect or copy unless the Crown Court grants permission.
(2) An application for permission under paragraph (1) must be made on notice to the parties to the proceedings.
33.43 Disclosure of documents in criminal proceedings
(1) This rule applies where—
(a) proceedings for an offence have been started in the Crown Court and the defendant has not been either convicted or acquitted on all counts; and
(b) an application for a restraint order under section 42(1) of the Proceeds of Crime Act 2002 has been made.
(2) The judge presiding at the proceedings for the offence may be supplied from the records of the Crown Court with documents relating to restraint proceedings and any receivership proceedings.
(3) Such documents must not otherwise be disclosed in the proceedings for the offence.
(1) Every order in restraint proceedings or receivership proceedings must be drawn up by the Crown Court unless—
(a) the Crown Court orders a party to draw it up;
(b) a party, with the permission of the Crown Court, agrees to draw it up; or
(c) the order is made by consent under rule 33.40.
(2) The Crown Court may direct that—
(a) an order drawn up by a party must be checked by the Crown Court before it is sealed; or
(b) before an order is drawn up by the Crown Court, the parties must lodge an agreed statement of its terms.
(3) Where an order is to be drawn up by a party—
(a) he must lodge it with the Crown Court no later than 5 business days after the date on which the court ordered or permitted him to draw it up so that it can be sealed by the Crown Court; and
(b) if he fails to lodge it within that period, any other party may draw it up and lodge it.
(4) Nothing in this rule shall require the Crown Court to accept a document which is illegible, has not been duly authorised, or is unsatisfactory for some other similar reason.
33.45 Application for restraint order or ancillary order
(1) This rule applies where the prosecutor, or an accredited financial investigator, makes an application under section 42 of the Proceeds of Crime Act 2002 for—
(a) a restraint order, under section 41(1) of the 2002 Act; or
(b) an ancillary order, under section 41(7) of that Act, for the purpose of ensuring that a restraint order is effective.
(2) The application may be made without notice if the application is urgent or if there are reasonable grounds for believing that giving notice would cause the dissipation of realisable property which is the subject of the application.
(3) An application for a restraint order must be in writing and supported by a witness statement which must—
(a) give the grounds for the application;
(b) to the best of the witness’ ability, give full details of the realisable property in respect of which the applicant is seeking the order and specify the person holding that realisable property;
(c) include the proposed terms of the order.
(4) An application for an ancillary order must be in writing and supported by a witness statement which must—
(a) give the grounds for, and full details of, the application;
(b) include, if appropriate—
(i) any request for an order for disclosure of documents to which rule 33.38 applies (Disclosure and inspection of documents),
(ii) the identity of any person whom the applicant wants the court to examine about the extent or whereabouts of realisable property,
(iii) a list of the main questions that the applicant wants to ask any such person, and
(iv) a list of any documents to which the applicant wants to refer such a person; and
(c) include the proposed terms of the order.
(5) An application for a restraint order and an application for an ancillary order may (but need not) be made at the same time and contained in the same documents.
(6) An application by an accredited financial investigator must include a statement that, under section 68 of the 2002 Act, the applicant has authority to apply.
(1) The Crown Court may make a restraint order subject to exceptions, including, but not limited to, exceptions for reasonable living expenses and reasonable legal expenses, and for the purpose of enabling any person to carry on any trade, business or occupation.
(2) But the Crown Court must not make an exception for legal expenses where this is prohibited by section 41(4) of the Proceeds of Crime Act 2002.
(3) An exception to a restraint order may be made subject to conditions.
(4) The Crown Court must not require the applicant for a restraint order to give any undertaking relating to damages sustained as a result of the restraint order by a person who is prohibited from dealing with realisable property by the restraint order.
(5) The Crown Court may require the applicant for a restraint order to give an undertaking to pay the reasonable expenses of any person, other than a person who is prohibited from dealing with realisable property by the restraint order, which are incurred in complying with the restraint order.
(6) An order must include a statement that disobedience of the order, either by a person to whom the order is addressed, or by another person, may be contempt of court and the order must include details of the possible consequences of being held in contempt of court.
(7) Unless the Crown Court otherwise directs, an order made without notice has effect until the court makes an order varying or discharging it.
(8) The applicant for an order must—
(a) serve copies of the order and of the witness statement made in support of the application on the defendant and any person who is prohibited by the order from dealing with realisable property; and
(b) notify any person whom the applicant knows to be affected by the order of its terms.
33.47 Application for discharge or variation of restraint or ancillary order by a person affected by the order
(1) This rule applies where a person affected by a restraint order makes an application to the Crown Court under section 42(3) of the Proceeds of Crime Act 2002 to discharge or vary the restraint order or any ancillary order made under section 41(7) of the Act.
(2) The application must be in writing and may be supported by a witness statement.
(3) The application and any witness statement must be lodged with the Crown Court.
(4) The application and any witness statement must be served on the person who applied for the restraint order and any person who is prohibited from dealing with realisable property by the restraint order (if he is not the person making the application) at least 2 business days before the date fixed by the court for hearing the application, unless the Crown Court specifies a shorter period.
(5) Where the application is for the Crown Court to make or vary an exception for the applicant’s reasonable living expenses it must include—
(a) details of the applicant’s current income and expenditure, with evidence of each item; and
(b) representations about proposed expenditure that include—
(i) the applicant’s previous standard of living and usual expenditure;
(ii) the possibility that the expenditure might maintain or improve the value of assets available to meet a confiscation order,
(iii) the possibility that the expenditure might reduce the value of such assets to less than the likely value of a confiscation order,
(iv) the likely duration of the restraint order, and
(v) the overall total of proposed expenditure.
33.48 Application for variation of restraint or ancillary order by the person who applied for the order
(1) This rule applies where the applicant for a restraint order makes an application under section 42(3) of the Proceeds of Crime Act 2002 to the Crown Court to vary the restraint order or any ancillary order made under section 41(7) of the 2002 Act (including where the court has already made a restraint order and the applicant is seeking to vary the order in order to restrain further realisable property).
(2) The application may be made without notice if the application is urgent or if there are reasonable grounds for believing that giving notice would cause the dissipation of realisable property which is the subject of the application.
(3) The application must be in writing and must be supported by a witness statement which must—
(a) give the grounds for the application;
(b) where the application is for the inclusion of further realisable property in a restraint order give full details, to the best of the witness’ ability, of the realisable property in respect of which the applicant is seeking the order and specify the person holding that realisable property;
(c) where the application is to vary an ancillary order, include, if appropriate—
(i) any request for an order for disclosure of documents to which rule 33.38 applies (Disclosure and inspection of documents),
(ii) the identity of any person whom the applicant wants the court to examine about the extent or whereabouts of realisable property,
(iii) a list of the main questions that the applicant wants to ask any such person, and
(iv) a list of any documents to which the applicant wants to refer such a person; and
(d) include the proposed terms of the variation.
(4) An application by an accredited financial investigator must include a statement that, under section 68 of the 2002 Act, the applicant has authority to apply.
(5) The application and witness statement must be lodged with the Crown Court.
(6) Except where, under paragraph (2), notice of the application is not required to be served, the application and witness statement must be served on any person who is prohibited from dealing with realisable property by the restraint order at least 2 business days before the date fixed by the court for hearing the application, unless the Crown Court specifies a shorter period.
(7) If the court makes an order for the variation of a restraint or ancillary order, the applicant must serve copies of the order and of the witness statement made in support of the application on—
(a) the defendant;
(b) any person who is prohibited from dealing with realisable property by the restraint order (whether before or after the variation); and
(c) any other person whom the applicant knows to be affected by the order.
33.49 Application for discharge of restraint or ancillary order by the person who applied for the order
(1) This rule applies where the applicant for a restraint order makes an application under section 42(3) of the Proceeds of Crime Act 2002 to discharge the order or any ancillary order made under section 41(7) of the 2002 Act.
(2) The application may be made without notice.
(3) The application must be in writing and must state the grounds for the application.
(4) If the court makes an order for the discharge of a restraint or ancillary order, the applicant must serve copies of the order on—
(a) the defendant;
(b) any person who is prohibited from dealing with realisable property by the restraint order (whether before or after the discharge); and
(c) any other person whom the applicant knows to be affected by the order.
33.50 Application for appointment of a management or an enforcement receiver
(1) This rule applies to an application for the appointment of a management receiver under section 48(1) of the Proceeds of Crime Act 2002 and an application for the appointment of an enforcement receiver under section 50(1) of the 2002 Act.
(2) The application may be made without notice if—
(a) the application is joined with an application for a restraint order under rule 33.45 (Application for restraint order or ancillary order);
(b) the application is urgent; or
(c) there are reasonable grounds for believing that giving notice would cause the dissipation of realisable property which is the subject of the application.
(3) The application must be in writing and must be supported by a witness statement which must—
(a) give the grounds for the application;
(b) give full details of the proposed receiver;
(c) to the best of the witness’ ability, give full details of the realisable property in respect of which the applicant is seeking the order and specify the person holding that realisable property;
(d) where the application is made by an accredited financial investigator, include a statement that, under section 68 of the 2002 Act, the applicant has authority to apply; and
(e) if the proposed receiver is not a person falling within section 55(8) of the 2002 Act and the applicant is asking the court to allow the receiver to act—
(i) without giving security, or
(ii) before he has given security or satisfied the court that he has security in place,
explain the reasons why that is necessary.
(4) Where the application is for the appointment of an enforcement receiver, the applicant must provide the Crown Court with a copy of the confiscation order made against the defendant.
(5) The application and witness statement must be lodged with the Crown Court.
(6) Except where, under paragraph (2), notice of the application is not required to be served, the application and witness statement must be lodged with the Crown Court and served on—
(a) the defendant;
(b) any person who holds realisable property to which the application relates; and
(c) any other person whom the applicant knows to be affected by the application,
at least 5 business days before the date fixed by the court for hearing the application, unless the Crown Court specifies a shorter period.
(7) If the court makes an order for the appointment of a receiver, the applicant must serve copies of the order and of the witness statement made in support of the application on—
(a) the defendant;
(b) any person who holds realisable property to which the order applies; and
(c) any other person whom the applicant knows to be affected by the order.
33.51 Application for conferral of powers on a management receiver or an enforcement receiver
(1) This rule applies to an application for the conferral of powers on a management receiver under section 49(1) of the Proceeds of Crime Act 2002 or an enforcement receiver under section 51(1) of the 2002 Act.
(2) The application may be made without notice if the application is to give the receiver power to take possession of property and—
(a) the application is joined with an application for a restraint order under rule 33.45 (Application for restraint order or ancillary order);
(b) the application is urgent; or
(c) there are reasonable grounds for believing that giving notice would cause the dissipation of the property which is the subject of the application.
(3) The application must be made in writing and supported by a witness statement which must—
(a) give the grounds for the application;
(b) give full details of the realisable property in respect of which the applicant is seeking the order and specify the person holding that realisable property;
(c) where the application is made by an accredited financial investigator, include a statement that, under section 68 of the 2002 Act, the applicant has authority to apply; and
(d) where the application is for power to start, carry on or defend legal proceedings in respect of the property, explain—
(i) what proceedings are concerned, in what court, and
(ii) what powers the receiver will ask that court to exercise.
(4) Where the application is for the conferral of powers on an enforcement receiver, the applicant must provide the Crown Court with a copy of the confiscation order made against the defendant.
(5) The application and witness statement must be lodged with the Crown Court.
(6) Except where, under paragraph (2), notice of the application is not required to be served, the application and witness statement must be served on—
(a) the defendant;
(b) any person who holds realisable property in respect of which a receiver has been appointed or in respect of which an application for a receiver has been made;
(c) any other person whom the applicant knows to be affected by the application; and
(d) the receiver (if one has already been appointed),
at least 5 business days before the date fixed by the court for hearing the application, unless the Crown Court specifies a shorter period.
(7) If the court makes an order for the conferral of powers on a receiver, the applicant must serve copies of the order on—
(a) the defendant;
(b) any person who holds realisable property in respect of which the receiver has been appointed; and
(c) any other person whom the applicant knows to be affected by the order.
33.52 Applications for discharge or variation of receivership orders, and applications for other orders
(1) This rule applies to applications under section 62(3) of the Proceeds of Crime Act 2002 for orders (by persons affected by the action of receivers) and applications under section 63(1) of the 2002 Act for the discharge or variation of orders relating to receivers.
(2) The application must be made in writing and lodged with the Crown Court.
(3) The application must be served on the following persons (except where they are the person making the application)—
(a) the person who applied for appointment of the receiver;
(b) the defendant;
(c) any person who holds realisable property in respect of which the receiver has been appointed;
(d) the receiver; and
(e) any other person whom the applicant knows to be affected by the application,
at least 5 business days before the date fixed by the court for hearing the application, unless the Crown Court specifies a shorter period.
(4) If the court makes an order for the discharge or variation of an order relating to a receiver under section 63(2) of the 2002 Act, the applicant must serve copies of the order on any persons whom he knows to be affected by the order.
(1) This rule applies where the amount payable under a confiscation order has been fully paid and any sums remain in the hands of an enforcement receiver.
(2) The receiver must make an application to the Crown Court for directions as to the distribution of the sums in his hands.
(3) The application and any evidence which the receiver intends to rely on in support of the application must be served on—
(a) the defendant; and
(b) any other person who held (or holds) interests in any property realised by the receiver,
at least 5 business days before the date fixed by the court for hearing the application, unless the Crown Court specifies a shorter period.
(4) If any of the provisions listed in paragraph (5) (provisions as to the vesting of funds in a trustee in bankruptcy) apply, then the Crown Court must make a declaration to that effect.
(5) These are the provisions—
(a) section 82 of the Bankruptcy (Scotland) Act 2016;
(b) section 306B of the Insolvency Act 1986; and
(c) article 279B of the Insolvency (Northern Ireland) Order 1989.
(1) This rule applies where the Crown Court appoints a receiver under section 48 or 50 of the Proceeds of Crime Act 2002 and the receiver is not a person falling within section 55(8) of the 2002 Act (and it is immaterial whether the receiver is a permanent or temporary member of staff or on secondment from elsewhere).
(2) The Crown Court may direct that before the receiver begins to act, or within a specified time, he must either—
(a) give such security as the Crown Court may determine; or
(b) file with the Crown Court and serve on all parties to any receivership proceedings evidence that he already has in force sufficient security,
to cover his liability for his acts and omissions as a receiver.
(3) The Crown Court may terminate the appointment of a receiver if he fails to—
(a) give the security; or
(b) satisfy the court as to the security he has in force,
by the date specified.
(1) This rule applies where the Crown Court appoints a receiver under section 48 or 50 of the Proceeds of Crime Act 2002 and the receiver is not a person falling within section 55(8) of the 2002 Act (and it is immaterial whether the receiver is a permanent or temporary member of staff or on secondment from elsewhere).
(2) The receiver may only charge for his services if the Crown Court—
(a) so directs; and
(b) specifies the basis on which the receiver is to be remunerated.
(3) Unless the Crown Court orders otherwise, in determining the remuneration of the receiver, the Crown Court shall award such sum as is reasonable and proportionate in all the circumstances and which takes into account—
(a) the time properly given by him and his staff to the receivership;
(b) the complexity of the receivership;
(c) any responsibility of an exceptional kind or degree which falls on the receiver in consequence of the receivership;
(d) the effectiveness with which the receiver appears to be carrying out, or to have carried out, his duties; and
(e) the value and nature of the subject matter of the receivership.
(4) The Crown Court may refer the determination of a receiver’s remuneration to be ascertained by the taxing authority of the Crown Court and rules 45.11 (Assessment and re-assessment) to 45.14 (Application for an extension of time) shall have effect as if the taxing authority was ascertaining costs.
(5) A receiver appointed under section 48 of the 2002 Act is to receive his remuneration by realising property in respect of which he is appointed, in accordance with section 49(2)(d) of the 2002 Act.
(6) A receiver appointed under section 50 of the 2002 Act is to receive his remuneration by applying to the magistrates’ court officer for payment under section 55(4)(b) of the 2002 Act.
(1) The Crown Court may order a receiver appointed under section 48 or 50 of the Proceeds of Crime Act 2002 to prepare and serve accounts.
(2) A party to receivership proceedings served with such accounts may apply for an order permitting him to inspect any document in the possession of the receiver relevant to those accounts.
(3) Any party to receivership proceedings may, within 10 business days of being served with the accounts, serve notice on the receiver—
(a) specifying any item in the accounts to which he objects;
(b) giving the reason for such objection; and
(c) requiring the receiver within 10 business days of receipt of the notice, either—
(i) to notify all the parties who were served with the accounts that he accepts the objection, or
(ii) if he does not accept the objection, to apply for an examination of the accounts in relation to the contested item.
(4) When the receiver applies for the examination of the accounts he must at the same time lodge with the Crown Court—
(a) the accounts; and
(b) a copy of the notice served on him under paragraph (3).
(5) If the receiver fails to comply with paragraph (3)(c) of this rule, any party to receivership proceedings may apply to the Crown Court for an examination of the accounts in relation to the contested item.
(6) At the conclusion of its examination of the accounts the court must certify the result.
(1) If a receiver appointed under section 48 or 50 of the Proceeds of Crime Act 2002 fails to comply with any rule, practice direction or direction of the Crown Court, the Crown Court may order him to attend a hearing to explain his non-compliance.
(2) At the hearing, the Crown Court may make any order it considers appropriate, including—
(a) terminating the appointment of the receiver;
(b) reducing the receiver’s remuneration or disallowing it altogether; and
(c) ordering the receiver to pay the costs of any party.
33.58 Statements, etc. relevant to making confiscation orders
(1) Where a prosecutor or defendant―
(a) serves on the magistrates’ court officer any statement or other document under section 73 of the Criminal Justice Act 1988 in any proceedings in respect of an offence listed in Schedule 4 to that Act; or
(b) serves on the Crown Court officer any statement or other document under section 11 of the Drug Trafficking Act 1994 or section 73 of the 1988 Act in any proceedings in respect of a drug trafficking offence or in respect of an offence to which Part VI of the 1988 Act applies,
that party must serve a copy as soon as practicable on the defendant or the prosecutor, as the case may be.
(2) Any statement tendered by the prosecutor to the magistrates’ court under section 73 of the 1988 Act or to the Crown Court under section 11(1) of the 1994 Act or section 73(1A) of the 1988 Act must include the following particulars—
(a) the name of the defendant;
(b) the name of the person by whom the statement is made and the date on which it was made;
(c) where the statement is not tendered immediately after the defendant has been convicted, the date on which and the place where the relevant conviction occurred; and
(d) such information known to the prosecutor as is relevant to the determination as to whether or not the defendant has benefited from drug trafficking or relevant criminal conduct and to the assessment of the value of any proceeds of drug trafficking or, as the case may be, benefit from relevant criminal conduct.
(3) Where, in accordance with section 11(7) of the 1994 Act or section 73(1C) of the 1988 Act, the defendant indicates in writing the extent to which he or she accepts any allegation contained within the prosecutor’s statement, the defendant must serve a copy of that reply on the court officer.
(4) Expressions used in this rule have the same meanings as in the 1994 Act or, where appropriate, the 1988 Act.
(1) Where an application is made by the defendant or the prosecutor –
(a) to a magistrates’ court under section 72A(5)(a) of the Criminal Justice Act 1988 asking the court to exercise its powers under section 72A(4) of that Act; or
(b) to the Crown Court under section 3(5)(a) of the Drug Trafficking Act 1994 asking the court to exercise its powers under section 3(4) of that Act, or under section 72A(5)(a) of the 1988 Act asking the court to exercise its powers under section 72A(4) of the 1988 Act,
the application must be in writing and the applicant must serve a copy on the prosecutor or the defendant, as the case may be.
(2) A party served with a copy of an application under paragraph (1) must, within 20 business days of the date of service, notify the applicant and the court officer, in writing, whether or not that party opposes the application, giving reasons for any opposition.
(3) After the expiry of the period referred to in paragraph (2), the court may determine an application under paragraph (1)—
(a) without a hearing; or
(b) at a hearing at which the parties may be represented.