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54 provisions
34F Disclosure of information, copying of documents etc.
(1) An unexplained wealth order has effect in spite of any restriction on the disclosure of information (however imposed).
(2) But paragraphs (1) to (5) of article 20 (further provisions: rights in connection with privileged information, questions and material) apply in relation to requirements imposed by an unexplained wealth order as they apply in relation to requirements imposed under a disclosure order.
(3) The enforcement authority may take copies of any documents produced by the respondent or any specified responsible officer in connection with complying with the requirements imposed by an unexplained wealth order.
(4) Documents so produced may also be retained for so long as it is necessary to retain them (as opposed to a copy of them) in connection with an external investigation in relation to the property in respect of which the unexplained wealth order is made.
(5) But if the enforcement authority has reasonable grounds to believe that the documents—
(a) may need to be produced for the purposes of any legal proceedings, and
(b) might otherwise be unavailable for those purposes,
they may be retained until the proceedings are concluded.
(6) Unless article 34D (compliance or purported compliance with an unexplained wealth order) applies, an enforcement authority which has been provided with compliance material may send the compliance material to the requesting party or to the Secretary of State for forwarding to the requesting party.
34G Holding of property: trusts and company arrangements etc.
(1) This article applies for the purposes of articles 34A (unexplained wealth orders) and 34B (requirements for making of unexplained wealth order).
(2) The cases in which a person (“P”) is to be taken to “hold” property include where—
(a) P has effective control over the property,
(b) P is the trustee of a settlement in which the property is comprised,
(c) P is a beneficiary (whether actual or potential) in relation to such a settlement.
(3) A person is to be taken to have “effective control” over property if, from all the circumstances, it is reasonable to conclude that the person—
(a) exercises,
(b) is able to exercise, or
(c) is entitled to acquire,
direct or indirect control over the property.
(4) Where a person holds property by virtue of paragraph (2) references to the person obtaining the property are to be read accordingly.
(5) References to a person who holds or obtains property include any body corporate, whether incorporated or formed under the law of a part of the United Kingdom or in a country or territory outside the United Kingdom.
(1) An application to the High Court in Northern Ireland to discharge or vary an unexplained wealth order may be made by—
(a) the enforcement authority, or
(b) the respondent or any specified responsible officer.
(2) The High Court in Northern Ireland—
(a) may discharge the order;
(b) may vary the order.
34H Unexplained wealth order: application for interim freezing order
(1) This article applies where the High Court makes an unexplained wealth order in respect of any property.
(2) The court may make an interim freezing order in respect of the property if the court considers it necessary to do so for the purposes of avoiding the risk of any external order (within the meaning of section 447(2) of the Proceeds of Crime Act 2002 (interpretation)) that might subsequently be obtained being frustrated.
(3) An interim freezing order is an order that prohibits the respondent to the unexplained wealth order, and any other persons with an interest in the property, from in any way dealing with the property (subject to any exclusions under article 34J (exclusions)).
(4) An interim freezing order—
(a) may be made only on the application of the enforcement authority that applied for the unexplained wealth order to which the interim freezing order relates,
(b) may be made only in order to give effect to an external request (within the meaning of section 447(1) of the Proceeds of Crime Act 2002),
(c) must be made in the same proceedings as those in which the unexplained wealth order is made, and
(d) may be combined in one document with the unexplained wealth order.
(5) If an application for an unexplained wealth order in respect of property is made without notice, an application for an interim freezing order in respect of the property must also be made without notice.
34I Variation and discharge of interim freezing order
(1) The High Court may at any time vary or discharge an interim freezing order.
(2) The High Court must discharge an interim freezing order, so far as it has effect in relation to property, in each of the following two cases.
(3) The first case is where—
(a) the applicable period has ended, and
(b) a relevant application has not been made before the end of that period in relation to the property concerned.
(4) The second case is where—
(a) a relevant application has been made before the end of the applicable period in relation to the property concerned, and
(b) proceedings on the application (including on any appeal) have been determined or otherwise disposed of.
(5) The “applicable period” means—
(a) in a case where the respondent complies, or purports to comply, with the requirements imposed by an unexplained wealth order before the end of the response period, the period of 120 days beginning with the day after the day upon which the compliance material was provided to the enforcement authority (see article 34D(2) (provision of compliance material), and
(b) in any other case, the period of 28 days beginning with the day after the day with which the response period ends.
(6) In calculating a period for the purposes of paragraph (5), no account is to be taken of—
(a) any Saturday or Sunday,
(b) Christmas Day,
(c) Good Friday,
(d) any day which is a bank holiday under the Banking and Financial Dealings Act 1971 in the part of the United Kingdom in which the interim freezing order concerned is made.
(7) Before exercising the power under this article to vary or discharge an interim freezing order, the court must (as well as giving the parties to the proceedings an opportunity to be heard) give an opportunity to any person who may be affected by its decision to be heard.
(8) Paragraph (7) does not apply where the court is acting as required by paragraph (2).
(9) In this article, “relevant application” means an application for—
(a) a restraint order under article 8 or 95 of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (restraint orders), or
(b) a prohibition order under Part 4A of that Order (giving effect in England and Wales and Northern Ireland to external requests by means of civil proceedings).
(1) The power to vary an interim freezing order includes (amongst other things) power to make exclusions as follows—
(a) power to exclude property from the order, and
(b) power, otherwise than by excluding property from the order, to make exclusions from the prohibition on dealing with the property to which the order applies.
(2) Exclusions from the prohibition on dealing with the property to which the order applies (other than exclusions of property from the order) may also be made when the order is made.
(3) An exclusion may (amongst other things) make provision for the purpose of enabling any person—
(a) to meet the person’s reasonable living expenses, or
(b) to carry on any trade, business, profession or occupation.
(4) An exclusion may be subject to conditions.
(5) Where the court exercises the power to make an exclusion for the purposes of enabling a person to meet legal expenses that the person has incurred, or may incur, in respect of proceedings under this Order, it must ensure that the exclusion—
(a) is limited to reasonable legal expenses that the person has reasonably incurred or reasonably incurs,
(b) specifies the total amount that may be released for legal expenses in pursuance of the exclusion, and
(c) is made subject to the same conditions as would be the required conditions (see article 198 of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (legal expenses excluded from freezing: required conditions)) if the order had been made under article 147 of that Order (application for property freezing order).
(6) The court in deciding whether to make an exclusion for the purposes of enabling a person to meet legal expenses in respect of proceedings under this Order—
(a) must have regard to the desirability of the person being represented in any proceedings under this Part in which the person is a participant, and
(b) must disregard the possibility that legal representation of the person in any such proceedings might, were an exclusion not made—
(i) be made available under arrangements made for the purposes of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or
(ii) be funded by the Legal Services Agency Northern Ireland.
(7) If excluded property is not specified in the order it must be described in the order in general terms.
(1) While an interim freezing order has effect—
(a) the High Court may stay any action, execution or other legal process in respect of the property to which the order applies, and
(b) no distress may be levied, and no power to use the procedure in Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 (taking control of goods) may be exercised, against the property to which the order applies except with the leave of the High Court and subject to any terms the court may impose.
(2) If a court (whether the High Court or any other court) in which proceedings are pending in respect of any property is satisfied that an interim freezing order has been applied for or made in respect of the property, it may—
(a) stay the proceedings, or
(b) allow them to continue on any terms it thinks fit.
(3) If an interim freezing order applies to a tenancy of any premises, a right of forfeiture in relation to the premises is exercisable—
(a) only with the leave of the High Court, and
(b) subject to any terms that the court may impose.
(4) The reference in paragraph (3) to a “right of forfeiture” in relation to premises is to the right of a landlord or other person to whom rent is payable to exercise a right of forfeiture by peaceable re-entry to the premises in respect of any failure by the tenant to comply with a term or condition of the tenancy.
(5) Before exercising a power conferred by this article, the court must (as well as giving the parties to any proceedings an opportunity to be heard) give an opportunity to any person who may be affected by the court’s decision to be heard.
34L Receivers in connection with interim freezing orders
(1) This article applies where the High Court makes an interim freezing order on an application by an enforcement authority.
(2) The court may, on an application by the enforcement authority, by order appoint a receiver in respect of any property to which the interim freezing order applies.
(3) An application under paragraph (2) may be made at the same time as the application for the interim freezing order or at any time afterwards.
(4) The application may be made without notice if the circumstances of the case are such that notice of the application would give rise to a risk of any external order that might subsequently be obtained being frustrated.
(5) In its application the enforcement authority must nominate a suitably qualified person for appointment as a receiver.
(6) The person nominated may be a member of staff of the enforcement authority.
34M Powers of receivers appointed under article 34L
(1) If the High Court appoints a receiver under article 34L (receivers in connection with interim freezing orders) on an application by an enforcement authority, the court may act under this article on the application of the authority.
(2) The court may by order authorise or require the receiver—
(a) to manage any property in respect of which the receiver is appointed;
(b) to take any other steps the court thinks appropriate in connection with the management of any such property (including securing the detention, custody or preservation of the property in order to manage it).
(3) Managing property includes—
(a) selling or otherwise disposing of assets comprised in the property which are perishable or which ought to be disposed of before their value diminishes;
(b) where the property comprises assets of a trade or business, carrying on, or arranging for another to carry on, the trade or business;
(c) incurring capital expenditure in respect of the property.
(4) The court may by order require any person in respect of whose property the receiver is appointed—
(a) to bring the property to a place (in England and Wales or, as the case may be, Northern Ireland) specified by the receiver or to place it in the custody of the receiver (if in either case the person is able to do so);
(b) to do anything the person is reasonably required to do by the receiver for the preservation of the property.
(5) The court may by order require any person in respect of whose property the receiver is appointed to bring any documents relating to the property which are in the person’s possession or control to a place (in England and Wales or, as the case may be, Northern Ireland) specified by the receiver or to place them in the custody of the receiver.
(6) Any prohibition on dealing with property imposed by an interim freezing order does not prevent a person from complying with any requirements imposed by virtue of this article.
(7) Paragraph (8) applies in a case where—
(a) the receiver deals with property that is not property in respect of which the receiver was appointed under article 34L, but
(b) at the time of dealing with the property the receiver believed on reasonable grounds that they were entitled to do so by virtue of being appointed under article 34L.
(8) The receiver is not liable to any person in respect of any loss or damage resulting from the receiver’s dealing with the property.
(9) But paragraph (8) does not apply to the extent that the loss or damage is caused by the receiver’s negligence.
34N Supervision of article 34L receiver and variations
(1) Any of the following persons may at any time apply to the High Court for directions as to the exercise of the functions of a receiver appointed under article 34L (receivers in connection with interim freezing orders)—
(a) the receiver;
(b) a party to the proceedings for the appointment of the receiver or the interim freezing order concerned;
(c) a person affected by an action taken by the receiver;
(d) a person who may be affected by an action proposed to be taken by the receiver.
(2) Before it gives directions under paragraph (1) the court must give an opportunity to be heard to—
(a) the receiver;
(b) the parties to the proceedings for the appointment of the receiver and for the interim freezing order concerned;
(c) a person who may be interested in the application under paragraph (1).
(3) The court may at any time vary or discharge—
(a) the appointment of a receiver under article 34L,
(b) an order under article 34M (powers of receivers appointed under article 34L), or
(c) directions under this article.
(4) Before exercising a power under paragraph (3) the court must give an opportunity to be heard to—
(a) the receiver;
(b) the parties to the proceedings for the appointment of the receiver, for the order under article 34M or (as the case may be) for the directions under this article;
(c) the parties to the proceedings for the interim freezing order concerned;
(d) any person who may be affected by the court’s decision.
Section 362Q of the Proceeds of Crime Act 2002 (registration) applies in relation to interim freezing orders under this Order as it applies to property freezing orders under section 245A of that Act (application for property freezing order).
(1) Where an interim freezing order in respect of any property is discharged, the person to whom the property belongs may make an application to the High Court for the payment of compensation.
(2) The application must be made within the period of three months beginning with the discharge of the interim freezing order.
(3) The court may award compensation to be paid to the applicant only if satisfied that—
(a) the applicant has suffered loss as a result of the making of the interim freezing order,
(b) there has been a serious default on the part of the enforcement authority that applied for the order, and
(c) the order would not have been made had the default not occurred.
(4) Where the court orders the payment of compensation—
(a) the compensation is payable by the enforcement authority that applied for the interim freezing order, and
(b) the amount of the compensation to be paid is the amount that the court thinks reasonable, having regard to the loss suffered and any other relevant circumstance.
(1) This article applies in the following cases—
(a) an enforcement authority has made an application for an unexplained wealth order under article 34A (unexplained wealth orders);
(b) an application has been made to discharge or vary an unexplained wealth order;
(c) an enforcement authority has made an application for an interim freezing order under article 34H (unexplained wealth orders: application for interim freezing order);
(d) an application has been made to discharge or vary an interim freezing order;
(e) an application has been made in the circumstances referred to in article 34K (restrictions on proceedings and remedies) to—
(i) stay an action, execution or other legal process,
(ii) grant leave to levy distress or use the procedure in Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 (taking control of goods),
(iii) stay proceedings in respect of property or allow them to continue, or
(iv) grant leave to exercise a right of forfeiture in relation to a tenancy;
(f) an enforcement authority has made an application for an order for the appointment of a receiver under article 34L (receivers in connection with interim freezing orders);
(g) an enforcement authority has made an application for an order under article 34M (powers of receiver);
(h) an application has been made for directions to a receiver under article 34N (supervision of article 34L receiver and variations);
(i) an application has been made to discharge or vary—
(i) the appointment of a receiver under article 34L,
(ii) an order under article 34M, or
(iii) directions under article 34N;
(j) an application has been made for compensation under article 34P (compensation);
(k) the High Court has of its own motion exercised a power to do anything an application mentioned in sub-paragraphs (a) to (j) may be made for;
(l) an application has been made for permission to appeal in relation to anything mentioned in sub-paragraphs (a) to (k).
(2) The court may not make an order that any costs of proceedings relating to a case to which this article applies (including appeal proceedings) are payable by an enforcement authority to a respondent or a specified responsible officer in respect of the involvement of the respondent or the officer in those proceedings, unless—
(a) the authority acted unreasonably in making or opposing the application to which the proceedings relate, or in supporting or opposing the making of the order to which the proceedings relate, or
(b) the authority acted dishonestly or improperly in the course of the proceedings.
(1) A relevant code of practice applies to the functions conferred by this Order as it applies to the functions conferred by Chapter 2 of Part 8 of the Act in relation to confiscation investigations.
(2) In paragraph (1) a “relevant code of practice” means any code of practice which is in operation under any of the provisions of the Act mentioned in paragraph (3).
(3) The provisions are—
(a) section 377 (code of practice of Secretary of State etc.);
(b) section 377ZA (code of practice (Northern Ireland));
(c) section 377A (code of practice of Attorney General or Advocate General for Northern Ireland).