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Crown Courts
 Criminal Solicitor Dot Net»Crown Courts
Subject Topic: Jurisdiction of Restraint Order Post ReplyPost New Topic
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proteus
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Posted: 19 July 2013 at 09:38 | IP Logged Quote proteus

As it now appears to be settled law, that a 'restraint order' under Part 2 of POCA

 can '' only'' apply to property (assets) situated in England & Wales- does the Act

none the less enable the CC to order D to repatriate - into England, assets

 held abroad, that can not be restrained under the restraint order ?
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Ron Barker
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Posted: 19 July 2013 at 10:28 | IP Logged Quote Ron Barker

Summary Perry and others (Appellants) v Serious Organised Crime Agency (Respondent) Perry and others No. 2 (Appellants) v Serious Organised Crime Agency (Respondent)
[2012] UKSC 35.

The purpose of Part 5 of POCA is to enable recovery in civil proceedings in each part of the UK of property which is or represents property obtained through unlawful conduct. The focus is on the property rather than a particular defendant. In their natural meaning, and in the absence of provisions corresponding to those for enforcement abroad in Parts 2, 3 and 4, the provisions of Part 5 apply only to property within the UK [53-56, 136].

The only anomaly with this analysis was the presence of section 286(2) POCA which purported to create a different position in Scotland from that in the rest of the UK. There was no satisfactory explanation for this and it remained an enigma [75-77] (Lord Reed thought it may have reflected a misunderstanding [152]), but it did not alter the overall conclusion that the High Court of England and Wales had no jurisdiction under Part 5 to make a recovery order in relation to property outside England and Wales. Thus the property covered by the PFO must be limited to such property, and the appellants could not be required under it to disclose all their worldwide assets [78-82].


Edited by Ron Barker on 19 July 2013 at 10:29


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proteus
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Posted: 19 July 2013 at 10:33 | IP Logged Quote proteus

Yes and in King v SFO(2009) UKHL 17-  1WLR 718- it said the same as to Part 2 of
POCA.

But - can the Crown Court- none the less order D to repraitriate KNOW assets

held abroad- even though the restraint order can not restrain assets held abroad?

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Ron Barker
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Posted: 19 July 2013 at 10:45 | IP Logged Quote Ron Barker

My understanding that the court can restrain a person from dealing with assets out of jurisdiction. I do not see any bar to making such orders relating to defendants and to disobey would be a contempt of court.



Edited by Ron Barker on 19 July 2013 at 10:58


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Ron Barker
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Posted: 19 July 2013 at 11:24 | IP Logged Quote Ron Barker

Blackstone's D8.34 A restraint order may be supported by a repatriation requirement in relation to liquid assets. In relation to overseas property generally, the prosecutor may send a letter of request, via the Secretary of State, to the relevant overseas authority requesting that the property be secured and, if a confiscation order has been made, realised.

The court may make an ‘external order’ prohibiting dealing with property which is the subject of an ‘external request’ (Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (SI 2005 No. 3181) and s. 444). An external request ‘is a request by an overseas authority to prohibit dealing with relevant property which is identified in the request’ (s. 447(1)). An ‘overseas authority’ is an authority outside England and Wales which has responsibility for making such a request or for carrying out an investigation into whether property has been obtained as a result of or in connection with criminal conduct or into a money laundering offence (s. 447(11)).

The 2005 Order confers jurisdiction to make orders only in respect of property in England and Wales. No machinery is provided for the exercise of the powers outside England and Wales. Notwithstanding that ‘property’ is defined in the Act as ‘all property wherever situated’ (s. 447(4)), its meaning depends upon the context which, by virtue of the Order, is limited to England and Wales. Accordingly, there is no scope for a worldwide disclosure order (King v Director of the SFO [2009] 1 WLR 718).

CPS Proceeds Of Crime Guidance Restraint and Management Receivers

Section 41 (7) of POCA gives the Crown Court jurisdiction to make any such ancillary order as it believes appropriate for the purpose of ensuring the restraint order is effective.

The two orders most commonly made under Section 41 (7) are disclosure orders and repatriation orders

Repatriation orders are orders requiring a defendant to repatriate to England and Wales assets held overseas.

They are most commonly used in relation to funds held in overseas bank accounts which are vulnerable to dissipation before a letter of request can be issued and actioned to secure them.

A repatriation order should only be sought where the realisation of assets held overseas will be necessary to satisfy a confiscation order in the amount of the defendant's benefit. If there are sufficient UK based assets available, a repatriation order should not be sought. For more details on the Court's power to make a repatriation order, see DPP v Scarlett [2000] 1 WLR 515.


Edited by Ron Barker on 19 July 2013 at 11:24


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proteus
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Posted: 19 July 2013 at 11:24 | IP Logged Quote proteus

In King- the Supreme Court upheld the decision of the CA- that under Part 2

POCA that a Restraint Order can '' not'' apply to property outside England & Wales.

As such- I do not see how D can be ordered not to deal with his international assets- if the restraint order- does not and can not restrain them.
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Ron Barker
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Posted: 19 July 2013 at 11:26 | IP Logged Quote Ron Barker

I think that our posts crossed.

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proteus
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Posted: 19 July 2013 at 11:39 | IP Logged Quote proteus

The CPS guidance note, as we know  is not up todate- as does not  take onboard

the ruling in King( a)no international restraint powers and b) no international
disclosure order)

 It appears to be i only at the enforcement stage that a receiver (via s74) may ' ask' the  Country concerned to play ball ( try the offshore banking states )


 Which leaves me to conclude the restraint order not restraining offshore assets-
 can therefore not restrain D from dealing with them.


Edited by proteus on 19 July 2013 at 11:42
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Ron Barker
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Posted: 20 July 2013 at 01:23 | IP Logged Quote Ron Barker

Section 48 Crime and Courts Act 2013 (Civil recovery of the proceeds etc of unlawful conduct) inserts a new section 282A:

61.Civil recovery under Part 5 of the POCA enables certain enforcement authorities to bring proceedings before the High Court or the Court of Session for the recovery of property which has been obtained through unlawful conduct, or property which represents property obtained through unlawful conduct. The value of the property must not be less than £10,000. The action is taken against property rather than an individual, and so does not require a criminal conviction. A civil recovery investigation is an investigation to identify property which is, or represents, the proceeds of unlawful conduct. An investigation, however, cannot be undertaken if proceedings for a recovery order have been started in respect of the property, an interim receiving order or interim administration order applies to the property or the property is detained under section 295 of the POCA (the provisions in relation to detained cash).

62. The UK Supreme Court’s judgment in the case of Perry v SOCA [2012] UKSC 35 effectively meant that orders made under Chapter 2 of Part 5 of the POCA did not extend to property outside the jurisdiction of the court, and that disclosure orders could not be made against persons who were not within the jurisdiction of the court. The Supreme Court also cast doubt on whether a disclosure order made under Part 8 of the POCA could go beyond property already known, although these comments were not a formal part of the judgment. The original policy intention behind the POCA was always that orders made under Chapter 2 of Part 5 of the POCA should reach beyond the jurisdiction of the court, as the proceeds of unlawful conduct are rarely held in one country and are often placed in jurisdictions where recovery is difficult. However, it was intended that the courts should only deal with cases which had some connection to the United Kingdom. Section 48 and 49, and accompanying Schedules 18, 19 and 25 seek to put this intention beyond doubt.

Schedule 18 Proceeds of crime: civil recovery of the proceeds etc of unlawful conduct


Schedule 19 Proceeds of Crime: Investigations


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Ron Barker
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Posted: 20 July 2013 at 01:50 | IP Logged Quote Ron Barker

Crime and Courts BillSUPPLEMENTARY MEMORANDUM BY submitted by THE HOME OFFICE


Proceeds of crime

2. The amendments to the Proceeds of Crime Act 2002 (POCA), arising out of the case of Perry v Serious Organised Crime Agency [2012] UKSC 35, broadly fall into two categories:

(a) amendments to Chapter 2 of Part 5 of POCA (civil recovery) addressing extra-territorial jurisdiction and a Schedule that makes provision about enforcement where property or evidence is outside the United Kingdom and makes provision (amendments to the Civil Jurisdiction and Judgments Act 1982) about the enforcement of interim orders in the United Kingdom. The amendments to Chapter 2 of Part 5 of POCA will have retrospective effect and will come into force on Royal Assent.

(b) amendments of provisions about investigations under POCA, in particular, making provision under Part 8 of POCA (investigations) in connection with civil recovery investigations and making provision about obtaining evidence overseas. These amendments will come into force by order of the Secretary of State.

New clause Civil recovery of the proceeds etc of unlawful conduct and new Schedule Proceeds of crime: Civil recovery of the Proceeds etc of unlawful conduct

3. This new clause and new Schedule make provision for Chapter 2 of Part 5 of POCA to have extra territorial effect and make provision about the enforcement of interim orders in the United Kingdom and enforcement where property or evidence is outside the United Kingdom.

4. The amendments set out that the court can make an order in respect of property wherever situated when there is or has been a connection between the case and the relevant part of the United Kingdom. The connections include those set out in new Schedule 7A of POCA; broadly speaking they concern: (i) the unlawful conduct; (ii) the property; and (iii) a person.

5. New Schedule Proceeds of crime: Civil recovery of the proceeds etc of unlawful conduct is split into two Parts and it is the second part that is the subject of consideration in this memorandum. Part 2 identifies various mechanisms for enforcing, outside the United Kingdom, orders made under Chapter 2 of Part 5 of POCA both before and after a recovery has been made. This Part is modelled on section 74 of POCA, on repealed section 376 of POCA and the Crime (International Co-operation) Act 2003.

6. The Government considers that, in individual cases, the amendments to POCA may raise issues under Article 7, Article 6 or Article 1 of Protocol 1 ECHR, but that they are compatible with those provisions for the reasons set out below.

Article 7 ECHR

7. Article 7 ECHR prohibits the retrospective application of a penalty but it has been held that civil recovery orders do not amount to a penalty: Director of the Assets Recovery Agency v Jia Jin He and Dan Dan Chen [2004] EWHC (Admin) 3021; Director of Assets Recovery Agency v Charrington [2005] EWCA (Civ) 334; Walsh v Director of the Assets Recovery Agency [2005] NICA 6.

8. The new clause and new Schedule will not make civil recovery orders become a penalty; rather the amendments to POCA deliver the intention of the Government in 2002 concerning behind Chapter 2 of Part 5 of that Act; where there is or has been a connection between the case and a relevant part of the United Kingdom the court can make an order in respect of property wherever situated outside the relevant part of the United Kingdom. Article 7 is not engaged by these amendments.

Article 6 and Article 1 of Protocol 1 ECHR

9. In individual cases, the amendments may engage Article 6 and Article 1 of Protocol 1 ECHR. In such cases, the key issue will be that the amendments are a justified and proportionate response for the prevention of crime.

10. In Jia Hin He and Dan Dan Chen [2004] EWHC (Admin) 3021, Collins J. held that civil recovery represented a proportionate measure to deter crime, and in particular to ensure, so far as possible, that those involved in crime should not enjoy the fruit of their criminal activities. In this context civil recovery applies to "recoverable property" which is defined by section 304(1) of POCA as: "Property obtained through unlawful conduct."

12. The amendments made to POCA by the new clause and new Schedule enable a court to make an order under Chapter 2 of Part 5 of POCA in respect of property wherever situated outside the relevant part of the United Kingdom as long as there is or has been a connection between the case and the relevant part of the United Kingdom. This reflects the Government’s intention in 2002 behind civil recovery and is a justified and proportionate response reflecting the strong public interest in preventing individuals from having the use and benefit of such property.

13. The retrospective effect of the legislation is narrowly focussed; it applies to the amendments to Chapter 2 of Part 5 of POCA. This tight focus reflects strong public interest reasons. A court has been (or may be) satisfied that the property in question is the product of criminal activity and there are strong public interests in preventing individuals having the use and benefit of such property. Those strong public interests apply to property outside the United Kingdom just as they do to property in the United Kingdom, and there is no difference between the past and the future in that respect.

14. The Government therefore considers that the amendments are compatible with Article 7 (which is not engaged), Article 6 and Article 1 and Protocol 1 ECHR.

New Schedule Proceeds of crime: Investigations

15. New Schedule Proceeds of crime: Investigations makes changes to Part 8 of POCA. Part 8 of POCA sets out powers for use in confiscation investigations, money laundering investigations, civil recovery investigations, detained cash investigations and exploitation proceeds investigations.

16. New Schedule Proceeds of crime: Investigations is split into three parts, the first two warrant consideration in this memorandum. Part 1 makes provision about orders and warrants under Part 8 of POCA in connection with civil recovery investigations. Part 2 makes provision about obtaining evidence overseas in relation to certain forms of civil investigation.

17. The Government considers that, in individual cases, the amendments may raise issues under Article 6, Article 8 and Article 1 of Protocol 1, but that they are compatible with those provisions for the reasons set out below.

New Schedule Proceeds of crime: Investigations - Part 1 [Article 6, Article 8 and Article 1 and Protocol 1 ECHR]

18. Part 1 of the new Schedule amends the provisions in Part 8 POCA about orders and warrants that may be obtained in connection with a civil recovery investigation. The main changes are to the definition of a civil recovery investigation to clarify that the focus of an investigation can be a person or property and also to clarify that there can be an investigation into property that has not yet been clearly identified. As a result, an investigation may begin with a person and, as property is identified and more is known about the property, become an investigation into property. Equally an investigation may begin with property and, as more information about its ownership emerges, become an investigation into a particular person. But the key is that investigators can only exercise their powers in the circumstances set out in the amendments and investigators will operate in accordance with the ECHR in accordance with section 6 of the Human Rights Act 1998 (HRA). Also the role of the court in granting the orders and warrants under Part 8 of POCA has not been displaced. In this context the court must first be satisfied that the order or warrant requested is consistent with ECHR rights in accordance with section 6 HRA.

New Schedule Proceeds of crime: Investigations - Part 2 [Article 6, Article 8 and Article 1 and Protocol 1]

19. Part 2 makes provision about obtaining evidence overseas in relation to certain forms of civil investigation; it is modelled on repealed section 376 of POCA and sections 7 to 9 of the Crime (International Co-operation) Act 2003. The amendments to POCA made by Part 2 of the new Schedule create two routes to obtaining evidence overseas. One route is an application to a judge by an appropriate officer or a person subject to the investigation, and the other route is a request for assistance by a relevant Director or a senior appropriate officer. In either case the request is transmitted overseas.

20. In terms of an application to a judge, an appropriate officer will operate in accordance with the ECHR in accordance with section 6 of the HRA. The person who is subject to the investigation can also make an application, which ensures parity of arms. In either case, the court must first be satisfied that the assistance requested is consistent with ECHR rights in accordance with section 6 of the HRA.

21. In terms of a request for assistance by a relevant Director or a senior appropriate officer, the request must be in relation to relevant evidence and it will be made by a senior individual. In either case, a relevant Director or senior appropriate officer will operate in accordance with the ECHR in accordance with section 6 of the HRA.

22. In respect of the two routes: (i) it must be thought that there is relevant evidence in a country or territory outside the United Kingdom and the assistance is to obtain that evidence; and (ii) unless the person who provided the evidence consents, any evidence obtained must not be used for any purpose other than for the purposes of the investigation or for the purposes of certain proceedings.

23. The Government therefore considers that the amendments are compatible with Article 6, Article 8 and Article 1 and Protocol 1 ECHR.


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