The Drug Trafficking Act 1994 (Designated Countries and Territories) Order 1996

• Citation: S.I. 1996/2880
• Sections: 63

Section 1 Title, Commencement and Extent

(1) This Order may be cited as the Drug Trafficking Act 1994 (Designated Countries and Territories) Order 1996 and shall come into force on 1st January 1997.

(2) This Order extends to England and Wales only.

Section 2 Interpretation

In this Order—

“ the Act ” means the Drug Trafficking Act 1994 and “the relevant provisions of the Act” are Part I, except sections 10 and 16, and Part IV of that Act;

“designated country” means a country or territory designated under article 3(1) of this Order;

“appropriate authority” of a designated country means—

the authority specified opposite that country in Schedule 1 to this Order;

where no authority is so specified, the authority appearing to the court to be the appropriate authority of that country for the purposes of sections 39 and 40 of the Act, and of the other relevant provisions of the Act as applied under article 3(2) of this Order;

“a court of a designated country” includes a court of any state or territory of a designated country.

Section 3 Designation of and application of the Act to countries and territories

(1) Each of the countries and territories specified in Schedule 1 to this Order is hereby designated for the purposes of sections 39 and 40 of the Act.

(2) In relation to a designated country, the relevant provisions of the Act shall apply, subject to the modifications specified in Schedule 2 to this Order, to external confiscation orders and to proceedings which have been or are to be instituted in the designated country and may result in an external confiscation order being made there, and, accordingly, in relation to such orders and such proceedings, the relevant provisions of the Act shall have effect as set out in Schedule 3 to this Order.

Section 4 Proof of orders and judgments of court in a designated country

(1) For the purposes of sections 39 and 40 of the Act, and of the other relevant provisions of the Act, as applied under article 3(2) of this Order—

(a) any order made or judgment given by a court in a designated country purporting to bear the seal of that court or to be signed by any person in his capacity as a judge, magistrate or officer of the court, shall be deemed without further proof to have been duly sealed or, as the case may be, to have been signed by that person; and

(b) a document, duly authenticated, which purports to be a copy of any order made or judgment given by a court in a designated country shall be deemed without further proof to be a true copy.

(2) A document purporting to be a copy of any order made or judgment given by a court in a designated country is duly authenticated for the purpose of paragraph 1(b) above if it purports to be certified by any person in his capacity as a judge, magistrate or officer of the court in question or by or on behalf of the appropriate authority of the designated country.

Section 5 Evidence in relation to proceedings and orders in a designated country

(1) For the purposes of sections 39 and 40 of the Act, and of the other relevant provisions of the Act as applied under article 3(2) of this Order, a certificate purporting to be issued by or on behalf of the appropriate authority of a designated country, stating—

(a) that proceedings have been instituted and have not been concluded, or that proceedings are to be instituted, there;

(b) in a case to which section 41(2) of the Act, as modified by Schedule 2 to this Order applies, that the defendant has been notified as specified in that paragraph;

(c) that an external confiscation order is in force and is not subject to appeal;

(d) that all or a certain amount of the sum payable under an external confiscation order remains unpaid in the designated country, or that other property recoverable under an external confiscation order remains unrecovered there;

(e) that any person has been notified of any proceedings in accordance with the law of the designated country; or

(f) that an order (however described) made or to be made by a court of the designated country has the purpose, or, as the case may be, will have the purpose, of recovering payments or other rewards received in connection with drug trafficking or their value;

shall, in any proceedings in the High Court, be admissible as evidence of the facts so stated.

(2) In any such proceedings a statement contained in a document, duly authenticated, which purports to have been received in evidence or to be a copy of a document so received, or to set out or summarise evidence given in proceedings in a court in a designated country, shall be admissible as evidence of any fact stated therein.

(3) A document is duly authenticated for the purposes of paragraph (2) above if it purports to be certified by any person in his capacity as a judge, magistrate or officer of the court in a designated country, or by or on behalf of the appropriate authority of the designated country, to have been received in evidence or to be a copy of a document so received, or, as the case may be, to be the original document containing or summarising the evidence or a true copy of that document.

(4) Nothing in this article shall prejudice the admission of any evidence, whether contained in any document or otherwise, which is admissible apart from this article.

Section 6 Certificate as to appropriate authority of a designated country

Where in relation to any designated country no authority is specified in Schedule 1 to this Order, a certificate made by the Secretary of State to the effect that the authority specified therein is the appropriate authority for the purposes of sections 39 and 40 of the Act, and of the other relevant provisions of the Act as applied by article 3(2) of this Order shall be sufficient evidence of that fact.

Section 7 Representation of government of a designated country

A request for assistance sent to the Secretary of State by the appropriate authority of a designated country shall, unless the contrary is shown, be deemed to constitute the authority of that country for the Crown Prosecution Service or the Commissioners of Customs and Excise to act on its behalf in any proceedings in the High Court under section 40 of the Act or any other provision of the Act as applied by article 3(2) of this Order.

Section 8 Satisfaction of confiscation order in a designated country

(1) Where—

(a) a confiscation order has been made under section 2 of the Act; and

(b) a request has been sent by the Secretary of State to the appropriate authority of a designated country for assistance in enforcing that order; and

(c) in execution of that request property is recovered in that country, the amount payable under the confiscation order shall be treated as reduced by the value of the property so recovered.

(2) For the purposes of this article, and without prejudice to the admissibility of any evidence which may be admissible apart from this paragraph, a certificate purporting to be issued by or on behalf of the appropriate authority of a designated country stating that property has been recovered there in execution of a request by the Secretary of State, stating the value of the property so recovered and the date on which it was recovered shall, in any proceedings in a court in England and Wales, be admissible as evidence of the facts so stated.

Section 9 Currency Conversion

(1) Where the value of property recovered as described in article 8(1) of this Order is expressed in a currency other than that of the United Kingdom, the extent to which the amount payable under the confiscation order is to be reduced under that paragraph shall be calculated on the basis of the exchange rate prevailing on the date on which the property was recovered in the designated country concerned.

(2) Where an amount of money payable or remaining to be paid under an external confiscation order registered in the High Court under section 40 of the Act is expressed in a currency other than that of the United Kingdom, for the purpose of any action taken in relation to that order under the Act as applied under article 3(2) of this Order the amount shall be converted into the currency of the United Kingdom on the basis of the exchange rate prevailing on the date of registration of the order.

(3) For the purposes of this article a written certificate purporting to be signed by any person acting in his capacity as an officer of any bank in the United Kingdom and stating the exchange rate prevailing on a specified date shall be admissible as evidence of the facts so stated.

Section 10 Revocation

The Drug Trafficking Offences Act 1986 (Designated Countries and Territories) Order 1990 is hereby revoked.

Section 1

In section 1, subsections (3) and (5) shall be omitted.

Section 2

For section 2 there shall be substituted the following section:

External confiscation orders

(2)

(1) An order made by a court in a designated country for the purpose of recovering payments or other rewards received in connection with drug trafficking or their value is referred to in this Act as an “external confiscation order”.

(2) In subsection (1) above the reference to an order includes any order, decree, direction or judgment, or any part thereof, however described.

Section 3

Sections 3 to 5 shall be omitted.

Section 4

In section 6—

(a) subsection (1) shall be omitted;

(b) for subsection (2) there shall be substituted the following subsection:

(2) In this Act “realisable property” means, subject to subsection (3) below—

(a) in relation to an external confiscation order made in respect of specified property, the property which is specified in the order; and

(b) in any other case—

(i) any property held by the defendant; and

(ii) any property held by a person to whom the defendant has directly or indirectly made a gift caught by this Act.

(c) subsection (4) shall be omitted.

Section 5

In section 7, subsection (4) shall be omitted.

Section 6

In section 8, in subsection (1) for the words “commencement of this Act” there shall be substituted the words “commencement of the Drug Trafficking Act 1994 (Designated Countries and Territories) Order 1996”.

Section 7

Sections 9 to 24 shall be omitted.

Section 8

In section 25—

(a) for subsection (1)(a) there shall be substituted the following:

(a) proceedings have been instituted against the defendant in a designated country;

(b) in subsection (1)(b) the words “or the application has not” shall be omitted;

(c) in subsection (1)(c) sub-paragraph (i) and the words “in any other case” in sub-paragraph (ii) shall be omitted;

(d) subsection (2) shall be omitted;

(e) for subsection (3) there shall be substituted:

(3) The powers mentioned in subsection (1) above are also exercisable where it appears to the High Court that proceedings are to be instituted against the defendant in a designated country and that there are reasonable grounds for believing that an external confiscation order may be made in them.

(f) subsection (4) shall be omitted;

(g) in subsection (5) for the words “proceedings in respect of the offence are not instituted, whether by the laying of an information or otherwise, or (as the case may be) if the application is not made”, there shall be substituted the words “the proposed proceedings are not instituted”.

Section 9

In section 26—

(a) for subsection 2(a) and (b) there shall be substituted the following:

(a) where an application under subsection (4) below relates to an external confiscation order made in respect of specified property, to property which is specified in that order; and

(b) in any other case—

(i) to all realisable property held by a specified person, whether the property is described in the restraint order or not, and

(ii) to realisable property held by a specified person, being property transferred to him after the making of the restraint order.

(b) in subsection 4(a)—

(i) for the words “the prosecutor” there shall be substituted the words “or on behalf of the government of a designated country or, in a case where an external confiscation order has been registered under section 40 of this Act, by a Crown Prosecutor or a person authorised in that behalf by the Commissioners of Customs and Excise”, and

(ii) for paragraph (c) there shall be substituted the following paragraph:

(c) shall provide for service on, or the provision of notice to, persons affected by the order in such manner as the High Court may direct.

(c) for subsection (5)(b) there shall be substituted:

(b) shall be discharged when the proceedings in relation to which the order was made are concluded.

(d) in subsection (7) the words “or a county court” shall be omitted;

(e) in subsection (8)(b) and in subsection (9), for the words “Great Britain” there shall be substituted the words “England and Wales”;

(f) subsection (10) shall be omitted;

(g) in subsection (13), for the words “The prosecutor” there shall be substituted the words “A person applying for a restraint order under subsection 4(a) above”.

Section 10

In section 27—

(a) for subsection 1(a) and (b) there shall be substituted the following:

(a) where a fixed amount is payable under an external confiscation order, of an amount not exceeding the amount so payable, and

(b) in any other case, of an amount equal to the value from time to time of the property charged.

(b) in subsection (3)(a)—

(i) for the words “the prosecutor” there shall be substituted the words “or on behalf of the government of a designated country or, in a case where an external confiscation order has been registered under section 40 of this Act, by a Crown Prosecutor, or a person authorised in that behalf by the Commissioners of Customs and Excise”, and

(ii) for paragraph (c) there shall be substituted the following paragraph:

(c) shall provide for the service on, or the provision of notice to, persons affected by the order in such manner as the High Court may direct

(c) in subsection (7)(b)(i), for the words “or the application in question” there shall be substituted the words “against the defendant in the designated country”.

Section 11

In section 28, subsections (5) and (6) shall be omitted.

Section 12

After section 28 there shall be inserted the following section:

Applications for restraint and charging orders

(28A) Notwithstanding anything in rule 3(2) of Order 115 of the Rules of the Supreme Court 1965 , an application under section 26(4) or 27(3) of this Act shall be supported by an affidavit which shall—

(a) state, where applicable, the grounds for believing that an external confiscation order may be made in the proceedings instituted or to be instituted in the designated country concerned;

(b) to the best of the deponent’s ability, give particulars of the realisable property in respect of which the order is sought and specify the person or persons holding such property;

(c) in a case to which section 25(3) of this Act applies, indicate when it is intended that proceedings should be instituted in the designated country concerned,

and the affidavit may, unless the court otherwise directs, contain statements of information or belief with the sources and grounds thereof.

Section 13

In section 29, for subsection (1) there shall be substituted the following two subsections:

(1) Where an external confiscation order has been registered in the High Court under section 40 of this Act, the High Court may, on the application of a Crown Prosecutor or a person authorised in that behalf by the Commissioners of Customs and Excise, exercise the powers conferred by subsections (1A) to (6) below.

(1A) In respect of any sum of money payable under the external confiscation order the court may make a garnishee order as if the sum were due to the Crown in pursuance of a judgment or order of the High Court, but any such order shall direct that the sum payable be paid to the High Court.

Section 14

In section 30—

(a) in subsection (1), for the words “shall be applied, subject to subsection (2) below, on the defendant’s behalf towards the satisfaction of the confiscation order” there shall be substituted the words “shall be paid to the High Court and, subject to subsection (2) below, applied for the purposes specified in subsections (5) to (7) below, and in the order so specified”;

(b) in subsection (2)(b), the words “or a county court” shall be omitted;

(c) in subsection (3), for the words “If, after the amount payable under the confiscation order”, there shall be substituted the words “Where a fixed amount is payable under the external confiscation order and, after that amount” and the words “or a county court” shall be omitted;

(d) subsection (4) shall be omitted;

(e) in subsection (5), for the words “The justices' clerk shall first”, there shall be substituted the words “Any sums paid to the High Court under subsection (1) above or under an order made under section 29(1A) of this Act or otherwise in satisfaction of an external confiscation order shall be first applied to”;

(f) for subsection (6) there shall be substituted the following subsection—

(6) If the money was paid to the High Court by a receiver appointed under section 26 or 29 of this Act or in pursuance of a charging order, the receiver’s remuneration and expenses shall next be paid.

(g) for subsection (7) there shall be substituted the following subsection—

(7) After there has been made—

(a) any payment required by subsection (5) above, and

(b) in a case to which subsection (6) above applies, any payment required by that subsection,

any amount paid under section 36(2) of this Act shall be reimbursed.

(h) for subsection (8) there shall be substituted the following subsection—

(8) Any sum remaining after all the payments required to be made under the foregoing provisions of this section have been made shall be paid into the Consolidated Fund.

(i) subsection (9) shall be omitted.

Section 15

In section 31—

(a) in subsection (1), the words “or a county court” shall be omitted;

(b) in subsection (2), for the words “making available” to the end of the subsection there shall be substituted the words “recovering property which is liable to be recovered under an external confiscation order registered in the High Court under section 40 of this Act or, as the case may be, with a view to making available for recovery property which may become liable to be recovered under any external confiscation order which may be made in the defendant’s case.”; and

(c) in subsection (5), after the word “the” in the fifth place where it occurs, there shall be inserted the word “external”.

Section 16

In section 32—

(a) in subsection (2), the words “or a county court” shall be omitted;

(b) in subsection (5), the sub-paragraphs (a)(i) and (a)(ii) shall be omitted and, in sub-paragraph (b), for the words “conclusion of the proceedings or of the application” there shall be substituted the words “discharge of the restraint or charging order”;

(c) after subsection (5) there shall be inserted the following:

(6) In any case in which a petition in bankruptcy was presented, or a receiving order or an adjudication in bankruptcy was made, before 29th December 1986 (the date on which the 1986 Act came into force), subsection (2) above shall have effect as if—

(a) for the reference to the bankrupt’s estate for the purposes of Part IX of the 1986 Act there were substituted a reference to the property of the bankrupt for the purposes of the Bankruptcy Act 1914 ;

(b) for the reference to section 280(2)(c) of the 1986 Act there were substituted a reference to section 26(2) of that Act; and

(c) subsection (2)(b) were omitted.

Section 17

In section 33—

(a) in subsection (2) the words “or a county court” shall be omitted;

(b) in subsection (6), sub-paragraphs (a)(i) and (a)(ii) shall be omitted and in sub-paragraph (b) for the words “conclusion of the proceedings or of the application” there shall be substituted the words “discharge of the restraint or charging order”.

Section 18

In section 34—

(a) in subsection (2) the words “or a county court” shall be omitted; and

(b) at the end, there shall be inserted the following:

(5) In any case in which a winding up of a company commenced or is treated as having commenced, before 29th December 1986 (the date on which the Insolvency Act 1986 came into force), this section has effect with the substitution for references to the Insolvency Act 1986 of references to the Companies Act 1985.

Section 19

In subsection (2) of section 36, the words “by the prosecutor or, in a case where proceedings for a drug trafficking offence are not instituted,” shall be omitted.

Section 20

Sections 37 to 39 shall be omitted.

Section 21

In section 40—

(a) in subsection (3), after the word “satisfied” there shall be inserted the words “by the recovery of all property liable to be recovered under it or”;

(b) subsection (4) shall be omitted.

Section 22

In section 41—

(a) in subsection (1), for the word “Part” there shall be substituted the word “Act”;

(b) for subsection (2) there shall be substituted the following subsection:

(2) Proceedings are instituted in a designated country when—

(a) under the law of the designated country concerned one of the steps specified in relation to that country in column 2 of the Appendix hereto has been taken there in respect of alleged drug trafficking by the defendant, or

(b) where no steps have been specified in relation thereto as mentioned in paragraph (a) above, the defendant has been notified in writing in accordance with the laws of the designated country that the competent authorities of that country have begun proceedings against him in respect of alleged drug trafficking, or

(c) an application has been made to a court in a designated country for an external confiscation order,

and where the application of this subsection would result in there being more than one time for the institution of proceedings, they shall be taken to have been instituted at the earliest of those times.

(c) for subsection (3) there shall be substituted the following subsection:

(3) Proceedings for an offence are concluded—

(a) when (disregarding any power of a court to grant leave to appeal out of time) there is no further possibility of an external confiscation order being made in the proceedings;

(b) on the satisfaction of an external confiscation order made in the proceedings, whether by the recovery of all property liable to be recovered, or the payment of any amount due

(c) subsections (4) and (5) shall be omitted;

(e) for subsection (6), there shall be substituted the following subsection—

(6) An external confiscation order is satisfied when no property remains liable to be recovered under it, or no amount is due under it.

(f) subsection (7) shall be omitted; and

(g) in subsection (8), before the word “order” the first time that it appears there shall be inserted the words “external confiscation”.

Section 23

Sections 42 to 61 shall be omitted.

Section 24

In section 63—

(a) in subsection (1)—

(i) for the definition of “defendant” there shall be substituted the following definition:

“defendant” means a person against whom an external confiscation order has been made, or a person against whom proceedings which may result in an external confiscation order being made have been, or are to be, instituted in a court in a designated country.

(ii) the definition of “modifications” shall be omitted;

(b) at the end of subsection (2) the fullstop shall be omitted and there shall be added the words “, and whether received before or after the commencement of the Drug Trafficking Act 1994 (Designated Countries and Territories) Order 1996 and whether received in connection with drug trafficking carried on by the recipient or some other person.”; and

(c) subsection (3) shall be omitted.

Section 25

For section 64 there shall be substituted the following section:

(64) In this Act the expressions listed below are defined by, or otherwise fall to be construed in accordance with, the provisions of this Act indicated below—

Section 26

In section 65—

(a) subsections (1) and (2) shall be omitted, and

(b) in subsections (3) and (4) the word “external” shall be inserted before the words “confiscation order” in both places where they occur.

Section 27

After section 65 there shall be inserted the Appendix set out at the end of Schedule 3 to this Order.

Section 28

Sections 66 to 69 shall be omitted.

Section 29

Schedule 1, Schedule 2, Schedule 3 and the Table of Derivations shall be omitted.

Section 1 Meaning of “drug trafficking”

(1) In this Act “drug trafficking” means, subject to subsection (2) below, doing or being concerned in any of the following, whether in England and Wales or elsewhere—

(a) producing or supplying a controlled drug where the production or supply contravenes section 4(1) of the Misuse of Drugs Act 1971 , or a corresponding law;

(b) transporting or storing a controlled drug where possession of the drug contravenes section 5(1) of that Act or a corresponding law;

(c) importing or exporting a controlled drug where the importation or exportation is prohibited by section 3(1) of that Act or a corresponding law;

(d) manufacturing or supplying a scheduled substance within the meaning of section 12 of the Criminal Justice (International Co-operation) Act 1990 where the manufacture or supply is an offence under that section or would be such an offence if it took place in England and Wales;

(e) using any ship for illicit traffic in controlled drugs in circumstances which amount to the commission of an offence under section 19 of that Act;

(f) conduct which is an offence under section 49 of this Act or which would be such an offence if it took place in England and Wales;

(g) acquiring, having possession of or using property in circumstances which amount to the commission of an offence under section 51 of this Act or which would amount to such an offence if it took place in England and Wales.

(2) “Drug trafficking” also includes a person doing the following, whether in England and Wales or elsewhere, that is to say, entering into or being otherwise concerned in an arrangement whereby—

(a) the retention or control by or on behalf of another person of the other person’s proceeds of drug trafficking is facilitated; or

(b) the proceeds of drug trafficking by another person are used to secure that funds are placed at the other person’s disposal or are used for the other person’s benefit to acquire property by way of investment.

(4) In this section “corresponding law” has the same meaning as in the Misuse of Drugs Act 1971.

Section 2 External confiscation orders

(1) An order made by a court in a designated country for the purpose of recovering payments or other rewards received in connection with drug trafficking or their value is referred to in this Act as an “external confiscation order”.

(2) In subsection (1) above the reference to an order includes any order, decree, direction or judgment, or any part thereof, however described.

Section 6 Meaning of “realisable property”

(2) In this Act “realisable property” means, subject to subsection (3) below—

(a) in relation to an external confiscation order made in respect of specified property, the property which is specified in the order; and

(b) in any other case—

(i) any property held by the defendant; and

(ii) any property held by a person to whom the defendant has directly or indirectly made a gift caught by this Act.

(3) Property is not realisable property if there is in force in respect of it an order under any of the following enactments, namely—

(a) section 27 of the Misuse of Drugs Act 1971 (forfeiture orders);

(b) section 43 of the Powers of Criminal Courts Act 1973 (deprivation orders);

(c) section 21 or 22 of the Proceeds of Crime (Scotland) Act 1995 (forfeiture of property);

(d) section 13(2), (3) or (4) of the Prevention of Terrorism (Temporary Provisions) Act 1989 (forfeiture orders).

Section 7 Value of property etc.

(1) Subject to the following provisions of this section and to section 8 of this Act, for the purposes of this Act the value of property (other than cash) in relation to any person holding the property is the market value of the property, except that, where any other person holds an interest in the property, the value is—

(a) the market value of the first-mentioned person’s beneficial interest in the property, less

(b) the amount required to discharge any incumbrance (other than a charging order) on that interest.

(2) Subject to section 8(2) of this Act, references in this Act to the value at any time (referred to in subsection (3) below as “the material time”) of a gift caught by this Act or of any payment or reward are references to—

(a) the value of the gift, payment or reward to the recipient when he received it, adjusted to take account of subsequent changes in the value of money, or

(b) where subsection (3) below applies, the value there mentioned, whichever is the greater.

(3) Subject to section 8(2) of this Act, if at the material time the recipient holds—

(a) the property which he received (not being cash), or

(b) property which in whole or in part, directly or indirectly represents in his hands the property which he received,

the value referred to in subsection (2)(b) above is the value to him at the material time of the property mentioned in paragraph (a) above or, as the case may be, of the property mentioned in paragraph (b) above so far as it so represents the property which he received, but disregarding in either case any charging order.

Section 8 Gifts caught by this Act

(1) A gift (including a gift made before the commencement of the Drug Trafficking Act 1994 (Designated Countries and Territories) Order 1996) is caught by this Act if—

(a) it was made by the defendant at any time since the beginning of the period of six years ending when the proceedings were instituted against him; or

(b) it was made by the defendant at any time and was a gift of property—

(i) received by the defendant in connection with drug trafficking carried on by him or another person; or

(ii) which in whole or in part directly or indirectly represented in the defendant’s hands property received by him in that connection.

(2) For the purposes of this Act—

(a) the circumstances in which the defendant is to be treated as making a gift include those where he transfers property to another person directly or indirectly for a consideration the value of which is significantly less than the value of the consideration provided by the defendant; and

(b) in those circumstances, the provisions of subsection (1) above and of section 7 of this Act shall apply as if the defendant had made a gift of such share in the property as bears to the whole property the same proportion as the difference between the values referred to in paragraph (a) above bears to the value of the consideration provided by the defendant.

Section 25 Cases in which restraint orders and charging orders may be made

(1) The powers conferred on the High Court by sections 26(1) and 27(1) of this Act are exercisable where—

(a) proceedings have been instituted against the defendant in a designated country;

(b) the proceedings have not been concluded; and

(c) the court is satisfied that there is reasonable cause to believe that the defendant has benefited from drug trafficking.

(3) The powers contained in subsection (1) above are also exercisable where it appears to the High Court that proceedings are to be instituted against the defendant in a designated country and that there are reasonable grounds for believing that an external confiscation order may be made in them.

(5) Where the court has made an order under section 26(1) or 27(1) of this Act by virtue of subsection (3) above, the court shall discharge the order if the proposed proceedings are not instituted within such time as the court considers reasonable.

Section 26 Restraint orders

(1) The High Court may by order (in this Act referred to as a “restraint order”) prohibit any person from dealing with any realisable property, subject to such conditions and exceptions as may be specified in the order.

(2) A restraint order may apply—

(a) where an application under subsection (4) below relates to an external confiscation order made in respect of specified property, to property which is specified in that order; and

(b) in any other case—

(i) to all realisable property held by a specified person, whether the property is described in the restraint order or not, and

(ii) to realisable property held by a specified person, being property transferred to him after the making of the restraint order.

(3) This section shall not have effect in relation to any property for the time being subject to a charge under section 27 of this Act or section 9 of the Drug Trafficking Offences Act 1986.

(4) A restraint order—

(a) may be made only on an application by or on behalf of the government of a designated country or, in a case where an external confiscation order has been registered under section 40 of this Act, by a Crown Prosecutor or a person authorised in that behalf by the Commissioners of Customs and Excise;

(b) may be made on an ex parte application to a judge in chambers; and

(c) shall provide for service on, or the provision of notice to, persons affected by the order in such manner as the High Court may direct.

(5) A restraint order—

(a) may be discharged or varied in relation to any property; and

(b) shall be discharged when the proceedings in relation to which the order was made are concluded.

(6) An application for the discharge or variation of a restraint order may be made by any person affected by it.

(7) Where the High Court has made a restraint order, the High Court—

(a) may at any time appoint a receiver—

(i) to take possession of any realisable property, and

(ii) in accordance with the court’s directions, to manage or otherwise deal with any property in respect of which he is appointed,

subject to such exceptions and conditions as may be specified by the court; and

(b) may require any person having possession of property in respect of which a receiver is appointed under this section to give possession of it to the receiver.

(8) For the purposes of this section, dealing with property held by any person includes (without prejudice to the generality of that expression)—

(a) where a debt is owed to that person, making a payment to any person in reduction of the amount of the debt; and

(b) removing the property from England and Wales.

(9) Where a restraint order has been made a constable may seize any realisable property for the purpose of preventing its removal from England and Wales.

(11) Property seized under subsection (9) above shall be dealt with in accordance with the directions of the court which made the order.

(12) The Land Charges Act 1972 and the Land Registration Act 1925 shall apply—

(a) in relation to restraint orders, as they apply in relation to orders affecting land made by the court for the purpose of enforcing judgments or recognisances; and

(b) in relation to applications for restraint orders, as they apply in relation to other pending land actions.

(13) A person applying for a restraint order under subsection (4)(a) above shall be treated for the purposes of section 57 of the Land Registration Act 1925 (inhibitions) as a person interested in relation to any registered land to which a restraint order or an application for such an order relates.

Section 27 Charging orders in respect of land, securities etc.

(1) The High Court may make a charging order on realisable property for securing the payment to the Crown—

(a) where a fixed amount is payable under an external confiscation order, of an amount not exceeding the amount so payable, and

(b) in any other case, of an amount equal to the value from time to time of the property charged.

(2) For the purposes of this Act a charging order is an order made under this section imposing on any such realisable property as may be specified in the order a charge for securing the payment of money to the Crown.

(3) A charging order—

(a) may only be made on an application by or on behalf of the government of a designated country or, in a case where an external confiscation order has been registered under section 40 of this Act, by a Crown Prosecutor, or a person authorised in that behalf by the Commissioners of Customs and Excise;

(b) may be made on an ex parte application to a judge in chambers;

(c) shall provide for service on, or the provision of notice to, persons affected by the order in such manner as the High Court may direct; and

(d) may be made subject to such conditions as the court thinks fit including, without prejudice to the generality of this paragraph, such conditions as it thinks fit as to the time when the charge is to become effective.

(4) Subject to subsection (6) below, a charge may be imposed by a charging order only on—

(a) any interest in realisable property which is an interest held beneficially by the defendant or by a person to whom the defendant has directly or indirectly made a gift caught by this Act and is an interest—

(i) in any asset of a kind mentioned in subsection (5) below; or

(ii) under any trust; or

(b) any interest in realisable property held by a person as trustee of a trust (“the relevant trust”) if the interest is in such an asset or is an interest under another trust and a charge may by virtue of paragraph (a) above be imposed by a charging order on the whole beneficial interest under the relevant trust.

(5) The assets referred to in subsection (4) above are—

(a) land in England and Wales; or

(b) securities of any of the following kinds—

(i) government stock;

(ii) stock of any body (other than a building society) incorporated within England and Wales;

(iii) stock of any body incorporated outside England and Wales or of any country or territory outside the United Kingdom, being stock registered in a register kept at any place within England and Wales;

(iv) units of any unit trust in respect of which a register of the unit holders is kept at any place within England and Wales.

(6) In any case where a charge is imposed by a charging order on any interest in an asset of a kind mentioned in subsection (5)(b) above, the court may provide for the charge to extend to any interest or dividend payable in respect of the asset.

(7) In relation to a charging order, the court—

(a) may make an order discharging or varying it; and

(b) shall make an order discharging it—

(i) on the conclusion of the proceedings against the defendant in the designated country; or

(ii) on payment into court of the amount payment of which is secured by the charge.

(8) An application for the discharge or variation of a charging order may be made by any person affected by it.

(9) In this section “building society”, “dividend”, “government stock”, “stock” and “unit trust” have the same meaning as in the Charging Orders Act 1979 .

Section 28 Charging orders: supplementary provisions

(1) The Land Charges Act 1972 and the Land Registration Act 1925 shall apply in relation to charging orders as they apply in relation to orders or writs made or issued for the purpose of enforcing judgments.

(2) Where a charging order has been registered under section 6 of the Land Charges Act 1972, subsection (4) of that section (effect of non-registration of writs and orders registrable under that section) shall not apply to an order appointing a receiver made in pursuance of the charging order.

(3) Subject to any provision made under section 29 of this Act or by rules of court, a charge imposed by a charging order shall have the like effect and shall be enforceable in the same courts and in the same manner as an equitable charge created by the person holding the beneficial interest or, as the case may be, the trustees by writing under their hand.

(4) Where a charging order has been protected by an entry registered under the Land Charges Act 1972 or the Land Registration Act 1925, an order under section 27(7) of this Act discharging the charging order may direct that the entry be cancelled.

Section 28A Applications for restraint and charging orders

Notwithstanding anything in rule 3(2) of Order 115 of the Rules of the Supreme Court 1965, an application under section 26(4) or 27(3) of this Act shall be supported by an affidavit which shall—

(a) state, where applicable, the grounds for believing that an external confiscation order may be made in the proceedings instituted or to be instituted in the designated country concerned;

(b) to the best of the deponent’s ability, give particulars of the realisable property in respect of which the order is sought and specify the person or persons holding such property;

(c) in a case to which section 25(3) of this Act applies, indicate when it is intended that proceedings should be instituted in the designated country concerned,

and the affidavit may, unless the court otherwise directs, contain statements of information or belief with the sources and grounds thereof.

Section 29 Realisation of property

(1) Where an external confiscation order has been registered in the High Court under section 40 of this Act, the High Court may, on the application of a Crown Prosecutor or a person authorised in that behalf by the Commissioners of Customs and Excise, exercise the powers conferred by subsections (1A) to (6) below.

(1A) In respect of any sum of money payable under the external confiscation order the court may make a garnishee order as if the sum were due to the Crown in pursuance of a judgment or order of the High Court, but any such order shall direct that the sum payable be paid to the High Court.

(2) The court may appoint a receiver in respect of realisable property.

(3) The court may empower a receiver appointed under subsection (2) above, under section 26 of this Act or in pursuance of a charging order—

(a) to enforce any charge imposed under section 27 of this Act on realisable property or on interest or dividends payable in respect of such property; and

(b) in relation to any realisable property other than property for the time being subject to a charge under section 27 of this Act, to take possession of the property subject to such conditions or exceptions as may be specified by the court.

(4) The court may order any person having possession of realisable property to give possession of it to any such receiver.

(5) The court may empower any such receiver to realise any realisable property in such manner as the court may direct.

(6) The court may—

(a) order any person holding an interest in realisable property to make to the receiver such payment as it may direct in respect of any beneficial interest held by the defendant or, as the case may be, the recipient of a gift caught by this Act; and

(b) on the payment being made, by order transfer, grant or extinguish any interest in the property.

(7) Subsections (4) to (6) above do not apply to property for the time being subject to a charge under section 27 of this Act or section 9 of the Drug Trafficking Offences Act 1986.

(8) The court shall not in respect of any property exercise the powers conferred by subsection (3)(a), (5) or (6) above unless a reasonable opportunity has been given for persons holding any interest in the property to make representations to the court.