PART 2
ASSISTANCE

19 Investigation of proceeds of ICC crime

Where the Scottish Ministers receive a request from the ICC for assistance—
in ascertaining whether a person has benefited from an ICC crime ; or
in identifying the extent or whereabouts of property derived directly or indirectly from an ICC crime,
the Scottish Ministers may direct such person as they may authorise to apply on behalf of the ICC for an order or warrant under schedule 5 to this Act (which makes provision for production or access orders and the issuing of search warrants).

SCHEDULE 5

INVESTIGATION OF PROCEEDS OF ICC CRIME

PART 1
PRODUCTION OR ACCESS ORDERS

(1) An order under this Part of this schedule may be made by the sheriff on an application by a person authorised for the purpose under section 19 of this Act.

(2) Any such application may be made on an ex parte application to a sheriff in chambers.

2 (1) The sheriff may make an order under this Part of this schedule if satisfied that there
are reasonable grounds for suspecting—
(a) that a specified person has benefited from an ICC crime ; and
(b) that the material to which the application relates is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purposes of which the application is made.

No such order shall be made if it appears to the sheriff that the material to which the application relates consists of or includes items subject to legal privilege.

Paragraphs 3 and 4 below specify the descriptions of order that may be made.

3(1) If it appears to the sheriff that there is in a specified person's possession, custody or power specified material, or material of a specified description, to which the application relates, the sheriff may order such person either—
(a) to produce the material to a constable within a specified period for the constable to take away (a "production order") ; or
(b) to give a constable access to the material within a specified period (an "access order").

The specified period shall be seven days beginning with the date of the order unless it appears to the sheriff making the order that a longer or shorter period would be appropriate in the particular circumstances of the application.

Where an access order is made in relation to material on any premises the sheriff may, on the application of a constable, order any person who appears to the sheriff to be entitled to grant entry to the premises to allow a constable to enter the premises to obtain access to the material.

In sub-paragraphs (1) and (2) above "specified" means specified in the order.

Where a production or access order is made by virtue of paragraph 4 below, the provisions of this paragraph shall have effect subject to the modifications specified in that paragraph.

4(1) A production or access order may be made in relation to a person if the sheriff thinks it is likely that material to which the application relates is in the person's possession, custody or power within the period of 28 days beginning with the date of an order.

(2) A production or access order may also be made in relation to material consisting of or including material which is expected to come into existence within that period.

(3) In that case it must specify a person within sub-paragraph (1) above.

(4) Where a production or access order is made by virtue of this paragraph—
the order shall require the specified person to notify a named constable as soon as is reasonably practicable after any material to which the application relates comes into the person's possession, custody or power ; and
paragraph 3 above has effect with the modifications mentioned in sub-paragraph (5) below.

(5) The modifications are—
that the references in paragraph 3(1) above to material in the possession, custody or power of the specified person shall be read as references to the material that comes into the possession, custody or power of the specified person ; and
that the reference in paragraph 3(2) above to the date of the order shall be read as a reference to the date of the notification required by sub-paragraph (4)(a) above.

(6) In this paragraph "specified" means specified in the order.

5 (1) The Scottish Ministers may by regulations make provision as to the discharge and variation of orders under this Part of this schedule.

(3) Regulations under sub-paragraph (1) above shall be made by statutory instrument ; and any such instrument shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.

6(1) Sub-paragraphs (2) to (4) below have effect with respect to the effect of an order under this Part of this schedule.

(2) Where the material to which the order relates consists of information contained in a computer—
a production order has effect as an order to produce the material in a form in which it can be taken away and in which it is visible and legible ; and
an access order has effect as an order to give access to the material in a form in which it is visible and legible.

(3) An order under this Part of this schedule does not confer any right to production of, or access to, items subject to legal privilege.

(4) Subject to section 39 of the 2001 Act, the order has effect notwithstanding any obligation as to secrecy or other restriction on the disclosure of information imposed by an enactment or otherwise.

7 (1) An order under this Part of this schedule may be made in relation to material in the possession, custody or power of a government department.

An order so made shall be served as if the proceedings were civil proceedings against the department.
Where the material concerned might for the time being be in the possession, custody or power of an officer of the department, an order may require such officer, whether named in the order or not, to comply with it.

In this paragraph "government department" means a public department within the meaning of the Crown Suits (Scotland) Act 1857 (c.44) and any part of the Scottish Administration.


PART 2
SEARCH WARRANTS

A search warrant may be issued under this Part of this schedule by a sheriff on an
application made by a person authorised for the purpose under section 19 of this Act.

9 (1) A search warrant issued under this Part of this schedule authorises any constable—
(a) to enter and search the premises specified in the warrant ;
to seize and retain any material found on the search that is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purposes of which the warrant was issued ; and
for the purposes of exercising the powers mentioned in sub-paragraphs (a) and (b) above, to open lockfast places on premises specified in the warrant.

(2) The warrant does not confer any right to seize material that consists of or includes items subject to legal privilege.

10 (1) The sheriff may issue a search warrant under this Part of this schedule in the cases mentioned in sub-paragraphs (2), (3) and (5) below.

(2) The case is where the sheriff is satisfied that a production or access order made in relation to material on the premises has not been complied with.

(3) The case is where the sheriff is satisfied —
that there are reasonable grounds for suspecting that a specified person has benefited from an ICC crime ;
that there are grounds for making a production or access order in relation to material on the premises ; and
that it would not be appropriate to make a production or access order in relation to the material for any of the reasons mentioned in sub-paragraph (4) below.

(4) The reasons are—
that it is not practicable to communicate with any person entitled to produce the materia l;
that it is not practicable to communicate with any person entitled to grant access to the material or entitled to grant entry to the premises on which the material is situated ; or
that the investigation for the purposes of which the application is made might be seriously prejudiced unless a constable could secure immediate access to the material.

(5) The case is where the sheriff is satisfied—
(a) that there are reasonable grounds for suspecting that a specified person has benefited from an ICC crime ;
(b) that there are reasonable grounds for suspecting that there is material on the premises which cannot be particularised at the time of the application but which relates to the specified person, or to the question whether that person has benefited from an ICC crime, or to any question as to the extent or whereabouts of the proceeds of an ICC crime ; and
is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purposes of which the application is made ; and
(c) that any of the circumstances mentioned in sub-paragraph (6) below apply.

(6) The circumstances are
that it is not practicable to communicate with any person entitled to grant entry to the premises ;
that entry to the premises will not be granted unless a warrant is produced ; or
that the investigation for the purposes of which the application is made might be seriously prejudiced unless a constable arriving at the premises could secure immediate entry to them.

PART 3 OTHER FORMS OF ASSISTANCE

Introduction

27 Provision of assistance

(1) The powers conferred by this Part on the Secretary of State are exercisable for the purpose of providing assistance to the ICC in relation to investigations or prosecutions where—
(a) an investigation has been initiated by the ICC, and
(b) the investigation and any proceedings arising out of it have not been concluded.
(2) Where facsimile transmission is used—
(a) for the making of a request by the ICC or the transmission of any supporting documents, or
(b) for the transmission of any document in consequence of such a request,
this Part applies as if the documents so sent were the originals of the documents so transmitted.
Any such document shall be receivable in evidence accordingly.
(3) Nothing in this Part shall be read as preventing the provision of assistance to the ICC otherwise than under this Part.

Forms of assistance

28 Questioning

(1) This section applies where the Secretary of State receives a request from the ICC for assistance in questioning a person being investigated or prosecuted.
(2) The person concerned shall not be questioned in pursuance of the request unless—
(a) he has been informed of his rights under article 55, and
(b) he consents to be interviewed.
(3) The provisions of article 55 are set out in Schedule 3 to this Act.
(4) Consent for the purposes of subsection (2)(b) may be given—
(a) by the person himself, or
(b) in circumstances in which it is inappropriate for the person to act for himself, by reason of his physical or mental condition or his youth, by an appropriate person acting on his behalf.
(5) Such consent may be given orally or in writing, but if given orally it shall be recorded in writing as soon as is reasonably practicable.

29 Taking or production of evidence

(1) This section applies where the Secretary of State receives a request from the ICC for assistance in the taking or production of evidence.
For this purpose “evidence” includes documents and other articles.
(2) The Secretary of State may nominate a court in England and Wales or Northern Ireland to receive the evidence to which the request relates.
(3) For this purpose the nominated court—
(a) has the same powers with respect to securing the attendance of witnesses and the production of documents or other articles as it has for the purpose of other proceedings before the court; and
(b) may take evidence on oath.
(4) A person shall not be compelled to give evidence or produce anything in proceedings under this section that he could not be compelled to give or produce in criminal proceedings in the part of the United Kingdom in which the nominated court has jurisdiction.
(5) If in order to comply with the request it is necessary for the evidence received by the court to be verified in any manner, the notice nominating the court shall specify the nature of the verification required.
(6) No order for costs shall be made in proceedings under this section.

30 Taking or production of evidence: further provisions

(1) The following provisions apply in relation to proceedings before a nominated court under section 29 and the evidence received in the proceedings.
(2) The court may, if it thinks it necessary in order to protect—
(a) victims and witnesses, or a person alleged to have committed an ICC crime, or
(b) confidential or sensitive information,
direct that the public be excluded from the court.
(3) The court shall ensure that a register is kept of the proceedings that indicates, in particular—
(a) which persons with an interest in the proceedings were present,
(b) which of those persons were represented and by whom, and
(c) whether any of those persons was denied the opportunity of cross-examining a witness as to any part of his testimony.
(4) The register shall not be open to inspection except as authorised by the Secretary of State or with the leave of the court.
(5) A copy of the register of the proceedings shall be sent to the Secretary of State for transmission to the ICC.

31 Service of process

(1) This section applies where the Secretary of State receives from the ICC a summons or other document together with a request for it to be served on a person in England, Wales or Northern Ireland.
(2) The Secretary of State may direct the chief officer of police for the area in which the person appears to be to cause the document to be personally served on him.
(3) If the document is so served, the chief officer of police shall forthwith inform the Secretary of State when and how it was served.
(4) If it does not prove possible to serve the document, the chief officer of police shall forthwith inform the Secretary of State of that fact and of the reason.
(5) In the application of this section to Northern Ireland the reference to the chief officer of police shall be read as a reference to the Chief Constable of the Royal Ulster Constabulary.

32 Transfer of prisoner to give evidence or assist in investigation

(1) This section applies where the Secretary of State receives a request from the ICC for the temporary transfer of a prisoner to the ICC for purposes of identification or for obtaining testimony or other assistance.
(2) Where the prisoner is detained in Scotland, the Secretary of State shall transmit the request to the Scottish Ministers.
(3) The relevant Minister may issue a warrant (a “transfer warrant”) requiring the prisoner to be delivered up, in accordance with arrangements made by the relevant Minister with the ICC, into the custody of the ICC.
(4) A transfer warrant shall not be issued unless the prisoner consents to the transfer, but consent may not be withdrawn after the issue of the warrant.
(5) The following provisions of Part 2 of this Act apply in relation to a transfer warrant under this section as they apply in relation to a delivery order under that Part—
• section 15 (effect of delivery order), and
• section 24 and Schedule 2 (delivery up of persons subject to criminal proceedings, &c.).
(6) In this section “prisoner” means—
(a) a person serving a sentence in a prison to which the Prison Act 1952 (c. 52) or the Prison Act (Northern Ireland) 1953 (c. 18(N.I.)) applies,
(b) a person serving a sentence in a prison, or in a young offenders institution, to which the Prisons (Scotland) Act 1989 (c. 45) applies,
(c) a person serving a sentence of detention or imprisonment imposed by a service court,
(d) a person detained in custody otherwise than in pursuance of a sentence, including in particular—
(i) a person in custody awaiting trial or sentence,
(ii) a person committed to prison for contempt or for default in paying a fine,
(iii) a person in custody in connection with proceedings to which Part 2 or 3 of Schedule 2 applies (extradition or other delivery proceedings),
(iv)a person detained under any provision of the Immigration Act 1971 (c. 77) or the Nationality, Immigration and Asylum Act 2002.
(7)For the purposes of the Immigration Acts (within the meaning given by section 158 of the Nationality, Immigration and Asylum Act 2002 (c. 33)) a person detained under any provision of the Immigration Act 1971 or the Nationality, Immigration and Asylum Act 2002 is not to be regarded as having left the United Kingdom at any time when a transfer warrant is in force in respect of him (including any time when he is in the custody of the ICC).
(8) In this section, “the relevant Minister” means—
(a) in relation to a person detained in England and Wales or Northern Ireland, the Secretary of State;
(b) in relation to a person detained in Scotland, the Scottish Ministers.

33 Entry, search and seizure

(1) This section applies where the Secretary of State receives from the ICC a request for assistance which appears to him to require the exercise of any of the powers conferred by Part 2 of the Police and Criminal Evidence Act 1984 (c. 60) or, in Northern Ireland, Part III of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)) (powers of entry, search and seizure).
(2)The Secretary of State may direct a constable to apply for a warrant or order under the relevant Part, which shall apply in relation to an ICC crime as it applies to (in the case of Part 2 of the 1984 Act) to an indictable offence or (in the case of Part III of the 1989 Order) to a serious arrestable offence.

34 Taking of fingerprints or non-intimate sample

(1) The provisions of Schedule 4 have effect with respect to the taking of fingerprints or a non-intimate sample in response to a request from the ICC for assistance in obtaining evidence as to the identity of a person.
(2) In subsection (1) and that Schedule “fingerprints” and “non-intimate sample” have the meaning given by section 65 of the Police and Criminal Evidence Act 1984 or, in Northern Ireland, Article 53 of the Police and Criminal Evidence (Northern Ireland) Order 1989.

35 Orders for exhumation

Proceedings before the ICC in respect of an ICC crime are criminal proceedings for the purposes of section 23 of the Coroners Act 1988 (c. 13) or section 11 of the Coroners Act (Northern Ireland) 1959 (c. 15(N.I.)) (power of coroner to order exhumation).

36 Provision of records and documents

(1) This section applies where the Secretary of State receives a request from the ICC for the provision of records and documents relating to—
(a) the evidence given in any proceedings in England and Wales or Northern Ireland in respect of conduct that would constitute an ICC crime, or
(b) the results of any investigation of such conduct with a view to such proceedings.
(2) The Secretary of State shall take such steps as appear to him to be appropriate to obtain the records and documents requested, and on their being produced to him he shall transmit them to the ICC.

37 Investigation of proceeds of ICC crime

(1) Where the Secretary of State receives a request from the ICC for assistance—
(a) in ascertaining whether a person has benefited from an ICC crime, or
(b) in identifying the extent or whereabouts of property derived directly or indirectly from an ICC crime,
the Secretary of State may direct a constable to apply for an order or warrant under Schedule 5.
(2) In that Schedule—
• Part 1 makes provision for production or access orders,
• Part 2 makes provision for the issuing of search warrants, and
• Part 3 contains supplementary provisions.

38 Freezing orders in respect of property liable to forfeiture

Where the Secretary of State receives a request from the ICC for assistance in the freezing or seizure of proceeds, property and assets or instrumentalities of crime for the purpose of eventual forfeiture, he may—
(a) authorise a person to act on behalf of the ICC for the purposes of applying for a freezing order, and
(b) direct that person to apply for such an order under Schedule 6.

National security

39 Production or disclosure prejudicial to national security

(1) Nothing in any of the provisions of this Part, or any corresponding provision of an Act of the Scottish Parliament, requires or authorises the production of documents, or the disclosure of information, which would be prejudicial to the security of the United Kingdom.
(2) For the purposes of any such provision a certificate signed by or on behalf of the Secretary of State to the effect that it would be prejudicial to the security of the United Kingdom for specified documents to be produced, or for specified information to be disclosed, is conclusive evidence of that fact.

Supplementary provisions

40 Verification of material

If in order to comply with a request of the ICC it is necessary for any evidence or other material obtained under this Part to be verified in any manner, the Secretary of State may give directions as to the nature of the verification required.

41 Transmission of material to the ICC

(1) Any evidence or other material obtained under this Part by a person other than the Secretary of State, together with any requisite verification, shall be sent to the Secretary of State for transmission to the ICC.
(2) Where any evidence or other material is to be transmitted to the ICC, there shall be transmitted—
(a) where the material consists of a document, the original or a copy, and
(b) where the material consists of any other article, the article itself or a photograph or other description of it,
as may be necessary to comply with the request of the ICC.

SCHEDULES

SCHEDULE 4 TAKING OF FINGERPRINTS OR NON-INTIMATE SAMPLES

Nomination of court to supervise taking of evidence

1 (1) Where the Secretary of State receives a request from the ICC for assistance in obtaining evidence as to the identity of a person, he may nominate a court in England and Wales or Northern Ireland to supervise the taking of the person’s fingerprints or a non-intimate sample (or both).
(2) He shall not do so unless—
(a) he is satisfied that other means of identification have been tried and have proved inconclusive, and
(b) he has notified the ICC of that fact and the ICC has signified that it wishes to proceed with the request.

Order to provide evidence

2 (1) The nominated court may order the taking by a constable of the person’s fingerprints or a non-intimate sample (or both).
(2) In the case of a non-intimate sample—
(a) the sample must be a sufficient sample within the meaning of section 65 of the Police and Criminal Evidence Act 1984 (c. 60) or, in Northern Ireland, Article 53 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I.12)), and
(b) section 63A(2) of that Act or, in Northern Ireland, Article 63A(2) of that Order applies as to the manner of taking the sample.
(3) In the following provisions of this Schedule “the necessary identification evidence” means the fingerprints or sample (or both) required by the order of the nominated court.

Requirement to attend and provide evidence

3 (1) The order of the nominated court may require the person to attend a police station to provide the necessary identification evidence.
(2) Any such requirement—
(a) shall give the person at least seven days within which he must so attend, and
(b) may direct him to attend at a specified time of day or between specified times of day.
(3) If the person fails to attend in accordance with the order—
(a) the nominated court may issue a warrant for his arrest, and
(b) the person may be detained for such period as is necessary to enable the necessary identification evidence to be taken.
The court shall inform the person concerned of the effect of this sub-paragraph.
(4) Sub-paragraphs (1) to (3) do not apply where the person concerned is in prison or is otherwise lawfully detained.
In that case the necessary identification evidence may be taken at the place where he is detained or at such other place as the nominated court may direct.

Consent to taking of evidence

4 (1) The necessary identification evidence may be taken—
(a) with the appropriate consent given in writing, or
(b) without that consent, in accordance with paragraph 5.
(2) In sub-paragraph (1) “the appropriate consent” has the meaning given by section 65 of the Police and Criminal Evidence Act 1984 or, in Northern Ireland, Article 53 of the Police and Criminal Evidence (Northern Ireland) Order 1989.
(3) The court shall inform the person concerned of the effect of this paragraph.

Taking of evidence without consent

5 (1) A constable may, if authorised by an officer of the rank of superintendent or above, take the necessary identification evidence without consent.
(2) An officer may give an authorisation under sub-paragraph (1) orally or in writing, but if he gives it orally he shall confirm it in writing as soon as is reasonably practicable.
(3) Before fingerprints or a sample are taken from a person upon an authorisation given under sub-paragraph (1), he shall be informed that the authorisation has been given.

Record of certain matters to be made

6 (1) After fingerprints or a sample are taken under this Schedule, there shall be recorded as soon as is reasonably practicable any of the following which apply—
(a) the fact that the appropriate consent has been given,
(b) any authorisation given under paragraph 5(1), and
(c) the fact that the person has been informed under paragraph 5(3) of the giving of such authorisation.
(2) A copy of the record shall be sent to the Secretary of State for transmission to the ICC together with the material obtained under this Schedule.

Checking of fingerprints or samples

7 (1) This paragraph applies to—
(a) fingerprints or samples taken under this Schedule, and
(b) information derived from such samples.
(2) The fingerprints, samples or information may be used only for the purpose of an investigation into a relevant offence.
(3) In particular, a check may not be made against them under—
(a) section 63A(1) of the Police and Criminal Evidence Act 1984 (c. 60) (checking of fingerprints and samples), or
(b) Article 63A(1) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)) (checking of fingerprints and samples),
except for the purpose of an investigation into a relevant offence.
(4) The fingerprints, samples or information may be checked, subject to sub-paragraph (2), against—
(a) other fingerprints or samples taken under this Schedule or information derived from such samples,
(b) any of the fingerprints, samples and information mentioned in section 63A(1)(a) and (b) of the Police and Criminal Evidence Act 1984 (checking of fingerprints and samples), and
(c) any of the fingerprints, samples and information mentioned in Article 63A(1)(a) and (b) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (checking of fingerprints and samples).
(5) For the purposes of this paragraph a “relevant offence” means an ICC crime or an offence under Part 5 of this Act.
(6) Before fingerprints or a sample are taken from a person under this Schedule, he shall be informed that they may be used as mentioned in this paragraph.

Destruction of fingerprints and samples

8(1) This paragraph applies to the following material—
(a) fingerprints and samples taken under this Schedule, and
(b) DNA profiles derived from such samples.

(2) The material must be destroyed—
(a) before the end of the period of 6 months beginning with the date on which the material was transmitted to the ICC (see paragraph 6(2)), or
(b) if later, as soon as it has fulfilled the purpose for which it was taken or derived.

(3) If fingerprints are required to be destroyed by virtue of sub-paragraph (2), any copies of the fingerprints held by the police must also be destroyed.

(4) If a DNA profile is required to be destroyed by virtue of sub-paragraph (2), no copy may be retained by the police except in a form which does not include information
from which the person to whom the DNA profile relates can be identified.

(5) In this paragraph—
“DNA profile” means any information derived from a DNA sample;
“DNA sample” means any material that has come from a human body and consists of or includes human cells.]

SCHEDULE 5 INVESTIGATION OF PROCEEDS OF ICC CRIME

PART 1 PRODUCTION OR ACCESS ORDERS

Application for order

1(1)An order under this Part of this Schedule may be made by
(a)a Circuit judge or a District Judge (Magistrates' Courts), or
(b)in Northern Ireland, a county court judge, on an application made in pursuance of a direction by the Secretary of State under section 37(1) (investigation of proceeds of ICC crime).
(2) Any such application—
(a) in England and Wales, may be made without notice and may be granted without a hearing; and
(b) in Northern Ireland, may be made on an ex parte application to a judge in chambers.

Grounds for making order

2 (1) The judge may make an order under this Part of this Schedule if he is satisfied that there are reasonable grounds for suspecting—
(a) that a specified person has benefited from an ICC crime, and
(b) that the material to which the application relates is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purposes of which the application is made.
(2) No such order shall be made if it appears to the judge that the material to which the application relates consists of or include items subject to legal privilege.
(3) Paragraphs 3 and 4 specify the descriptions of order that may be made.

Production or access orders: standard orders

3 (1) The judge may order a specified person who appears to have in his possession, custody or power specified material, or material of a specified description, to which the application relates, either—
(a) to produce the material to a constable within a specified period for the constable to take away (a “production order”), or
(b) to give a constable access to the material within a specified period (an “access order”).
(2) The specified period shall be seven days beginning with the date of the order unless it appears to the judge making the order that a longer or shorter period would be appropriate in the particular circumstances of the application.
(3) Where the judge makes an access order in relation to material on any premises he may, on the application of a constable, order any person who appears to him to be entitled to grant entry to the premises to allow a constable to enter the premises to obtain access to the material.
(4) In this paragraph “specified” means specified in the order.
(5) Where a production or access order is made by virtue of paragraph 4 (special orders), the provisions of this paragraph have effect subject to the modifications specified in that paragraph.

Production or access orders: special orders

4 (1) A production or access order may be made in relation to a person who the judge thinks is likely to have material to which the application relates in his possession, custody or power within the period of 28 days beginning with the date of the order.
(2) A production or access order may also be made in relation to material consisting of or including material which is expected to come into existence within that period.
In that case it must specify a person within sub-paragraph (1).
(3) Where a production or access order is made by virtue of this paragraph—
(a) the order shall require the specified person to notify a named constable as soon as is reasonably practicable after any material to which the application relates comes into his possession, custody or power, and
(b) paragraph 3 has effect with the following modifications.
(4) The modifications are—
(a) that the references in paragraph 3(1) to material which the specified person has in his possession, custody or power shall be read as references to the material that comes into his possession, custody or power, and
(b) that the reference in paragraph 3(2) to the date of the order shall be read as a reference to the date of the notification required by sub-paragraph (3)(a) above.
(5) In this paragraph “specified” means specified in the order.

Effect of order: general

5(1)An order under this Part of this Schedule has effect as if it were an order of the Crown Court.
(2)Provision may be made by Criminal Procedure Rules or, in Northern Ireland, Crown Court Rules as to—
(a)the discharge and variation of such orders, and
(b)proceedings relating to such orders.

Effect of order: supplementary

6 (1) The following provisions have effect with respect to the effect of an order under this Part of this Schedule.
(2) Where the material to which the order relates consists of information contained in a computer—
(a) a production order has effect as an order to produce the material in a form in which it can be taken away and in which it is visible and legible, and
(b) an access order has effect as an order to give access to the material in a form in which it is visible and legible.
(3) An order under this Part of this Schedule does not confer any right to production of, or access to, items subject to legal privilege.
(4) Subject to sub-paragraph (3), the order has effect notwithstanding any obligation as to secrecy or other restriction upon the disclosure of information imposed by statute or otherwise.
(5) For the purposes of sections 21 and 22 of the Police and Criminal Evidence Act 1984 (c. 60) or, in Northern Ireland, Articles 23 and 24 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)) (access to, and copying and retention of, seized material) material produced in pursuance of an order under this Part of this Schedule shall be treated as if it were material seized by a constable.

Order in relation to material in possession of government department

7 (1) An order under this Part of this Schedule may be made in relation to material in the possession, custody or power of a government department.
(2) An order so made—
(a) shall be served as if the proceedings were civil proceedings against the department, and
(b) may require any officer of the department, whether named in the order or not, who may for the time being have in his possession, custody or power the material concerned, to comply with it.
(3) In this paragraph “government department” means an authorised government department for the purposes of the Crown Proceedings Act 1947 (c. 44) or an authorised Northern Ireland department for the purposes of that Act as it applies to the Crown in right of Her Majesty’s Government in Northern Ireland.

PART 2 SEARCH WARRANTS

Application for warrant

8 A search warrant may be issued under this Part of this Schedule by
(a)a Circuit judge or a District Judge (Magistrates' Courts), or
(b)in Northern Ireland, a county court judge, on an application made in pursuance of a direction by the Secretary of State under section 37(1) (investigation of proceeds of ICC crime).


Effect of warrant

9 (1) A search warrant issued under this Part of this Schedule authorises any constable—
(a) to enter and search the premises specified in the warrant, and
(b) to seize and retain any material found on the search that is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purposes of which the warrant was issued.
(2) The warrant does not confer any right to seize material that consists of or includes items subject to legal privilege.

Grounds for issue of warrant

10 (1) The judge may issue a search warrant under this Part of this Schedule in the following cases.
(2) The first case is where the judge is satisfied that a production or access order made in relation to material on the premises has not been complied with.
(3) The second case is where the judge is satisfied—
(a) that there are reasonable grounds for suspecting that a specified person has benefited from an ICC crime,
(b) that there are grounds for making a production or access order (see paragraph 2) in relation to material on the premises, and
(c) that it would not be appropriate to make a production or access order in relation to the material for any of the following reasons.
(4) Those reasons are—
(a) that it is not practicable to communicate with any person entitled to produce the material,
(b) that it is not practicable to communicate with any person entitled to grant access to the material or entitled to grant entry to the premises on which the material is situated, or
(c) that the investigation for the purposes of which the application is made might be seriously prejudiced unless a constable could secure immediate access to the material.
(5) The third case is where the judge is satisfied—
(a) that there are reasonable grounds for suspecting that a specified person has benefited from an ICC crime,
(b) that there are reasonable grounds for suspecting that there is material on the premises which cannot be particularised at the time of the application but which—
(i) relates to the specified person, or to the question whether that person has benefited from an ICC crime, or to any question as to the extent or whereabouts of the proceeds of an ICC crime, and
(ii) is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purposes of which the application is made, and
(c) that any of the following circumstances apply.
(6) Those circumstances are—
(a) that it is not practicable to communicate with any person entitled to grant entry to the premises,
(b) that entry to the premises will not be granted unless a warrant is produced, or
(c) that the investigation for the purposes of which the application is made might be seriously prejudiced unless a constable arriving at the premises could secure immediate entry to them.

PART 3 SUPPLEMENTARY PROVISIONS

11 In this Schedule—
• “constable” includes a person commissioned by the Commissioners of Customs and Excise; and
• “items subject to legal privilege” and “premises” have the same meaning as in the Police and Criminal Evidence Act 1984 (c. 60) or, in Northern Ireland, the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)).

SCHEDULE 6 FREEZING ORDERS IN RESPECT OF PROPERTY LIABLE TO FORFEITURE

Application for freezing order

1 (1) A freezing order may be made by the High Court on an application in pursuance of a direction given by the Secretary of State under section 38.
(2) Any such application—
(a) in England and Wales, may be made without notice and may be granted without a hearing; and
(b) in Northern Ireland, may be made on an ex parte application to a judge in chambers.

Grounds for making order

2 The court may make a freezing order if it is satisfied—
(a) that a forfeiture order has been made in proceedings before the ICC, or
(b) that there are reasonable grounds for believing that a forfeiture order may be made in such proceedings,
and that the property to which the order relates consists of or includes property that is or may be affected by such a forfeiture order.

Effect of order

3 (1) A “freezing order” is an order prohibiting any person from dealing with property specified in the order otherwise than in accordance with such conditions and exceptions as may be specified in the order.
(2) A freezing order shall provide for notice to be given to persons affected by the order.

Variation or discharge of order

4 (1) A freezing order may be varied or discharged in relation to any property on the application of any person affected by the order.
(2) A freezing order shall be discharged on the conclusion of the ICC proceedings in relation to which the order was made.

Power to appoint receiver

5 (1) The powers conferred by this paragraph may be exercised if a freezing order is in force.
(2) The High Court may at any time appoint a receiver—
(a) to take possession of any property specified in the order, and
(b) in accordance with the court’s directions, to manage or otherwise deal with the property in respect of which he is appointed,
subject to such exceptions and conditions as may be specified by the court.
(3) The High Court may require any person having possession of property in respect of which a receiver is appointed under this paragraph to give possession of it to the receiver.
(4) The powers conferred on a receiver by this paragraph shall be exercised with a view to securing that the property specified in the order is available for satisfying the forfeiture order or, as the case may be, any forfeiture order that may be made in the ICC proceedings in relation to which the order was made.
(5) A receiver appointed under this paragraph shall not be liable to any person in respect of any loss or damage resulting from any action taken by him which he believed on reasonable grounds that he was entitled to take, except in so far as the loss or damage is caused by his negligence.

Seizure to prevent removal from jurisdiction

6 (1) Where a freezing order has been made, a constable may, for the purpose of preventing any property specified in the order from being removed from the jurisdiction, seize the property.
(2) The reference in sub-paragraph (1) to property being removed from the jurisdiction is to its being removed from England and Wales or Northern Ireland, as the case may be.
(3) Property seized under this paragraph shall be dealt with in accordance with the directions of the High Court.

Registered land: England and Wales

7(1)The Land Charges Act 1972 (c. 61) and the Land Registration Act 2002 apply—
(a)in relation to freezing orders, as they apply in relation to orders affecting land made by the court for the purpose of enforcing judgments or recognisances; and, except that no notice may be entered in the register of title under the Land Registration Act 2002 in respect of such orders
(b)in relation to applications for freezing orders, as they apply in relation to other pending land actions.
(2) Repealed.


Registered land: Northern Ireland

8 (1) The ICC shall be treated for the purposes of section 66 of the Land Registration Act (Northern Ireland) 1970 (c. 18 (N.I.)) (cautions) as a person interested in relation to any registered land to which a freezing order or an application for such an order relates.
(2) Upon being served with a copy of a freezing order or an application for such an order, the Registrar shall, in respect of any registered land to which the order or application relates, make an entry inhibiting any dealing with the land without the consent of the High Court.
(3) Subsections (2) and (4) of section 67 of the Land Registration Act (Northern Ireland) 1970 (inhibitions) apply to an entry made under sub-paragraph (2) as they apply to an entry made on the application of any person interested in the registered land under subsection (1) of that section.
(4) Where a freezing order has been protected by an entry registered under the Land Registration Act (Northern Ireland) 1970 or the Registration of Deeds Act (Northern Ireland) 1970 (c. 25 (N.I.)), an order under paragraph 4 discharging the freezing order may direct that the entry be vacated.
(5) In this paragraph—
(a) “Registrar” and “entry” have the same meanings as in the Registration Act (Northern Ireland) 1970; and
(b) “registered land” has the meaning assigned to it by section 45(1)(a) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)).

Bankruptcy: England and Wales

9 (1) Where a person is adjudged bankrupt in England and Wales—
(a) property for the time being subject to a freezing order, or an order having the like effect in Scotland, made before the order adjudging him bankrupt, and
(b) any proceeds of property realised by virtue of paragraph 5(2) for the time being in the hands of a receiver appointed under that paragraph,
is excluded from the bankrupt’s estate for the purposes of Part 9 of the Insolvency Act 1986 (c. 45).
(2) Where a person has been adjudged bankrupt in England and Wales, the powers conferred on a receiver appointed under paragraph 5 above shall not be exercised in relation to—
(a) property for the time being comprised in the bankrupt’s estate for the purposes of that Part of that Act;
(b) property in respect of which his trustee in bankruptcy may (without leave of court) serve a notice under section 307, 308 or 308A of that Act (after-acquired property and tools, clothes, etc. exceeding value of reasonable replacement and certain tenancies); and
(c) property which is to be applied for the benefit of creditors of the bankrupt by virtue of a condition imposed under section 280(2)(c) of that Act.
(3) Nothing in that Act shall be taken as restricting, or enabling the restriction of, the exercise of those powers.
(4) Where, in the case of a debtor, an interim receiver stands appointed under section 286 of that Act and any property of the debtor is subject to a freezing order, the powers conferred on the receiver by virtue of that Act do not apply to property for the time being subject to the freezing order.
(5) In any case in which a petition in bankruptcy was presented, or a receiving order or adjudication in bankruptcy was made, before 29th December 1986 (the date on which the Insolvency Act 1986 (c. 45) came into force), this paragraph shall have effect with the following modifications—
(a) for references to the bankrupt’s estate for the purposes of Part 9 of that Act there shall be substituted references to the property of the bankrupt for the purposes of the Bankruptcy Act 1914 (c. 59);
(b) for references to the Act of 1986 and sections 280(2)(c) and 286 of that Act there shall be respectively substituted references to the Act of 1914 and to sections 26(2) and 8 of that Act;
(c) the references in sub-paragraph (4) to an interim receiver appointed as there mentioned include, where a receiving order has been made, a reference to the receiver constituted by virtue of section 7 of the Act of 1914; and
(d) sub-paragraph (2)(b) shall be omitted.

Bankruptcy: Northern Ireland

10 (1) Where a person is adjudged bankrupt in Northern Ireland—
(a) property for the time being subject to a freezing order, or an order having the like effect in Scotland, made before the order adjudging him bankrupt, and
(b) any proceeds of property realised by virtue of paragraph 5(2) for the time being in the hands of a receiver appointed under that paragraph,
is excluded from the bankrupt’s estate for the purposes of Part IX of the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)).
(2) Where a person has been adjudged bankrupt in Northern Ireland, the powers conferred on a receiver appointed under paragraph 5 above shall not be exercised in relation to—
(a) property for the time being comprised in the bankrupt’s estate for the purposes of that Part of that Order;
(b) property in respect of which his trustee in bankruptcy may (without leave of court) serve a notice under Article 280 or 281 of that Order (after-acquired property and tools, clothes, etc. exceeding value of reasonable replacement); and
(c) property which is to be applied for the benefit of creditors of the bankrupt by virtue of a condition imposed under Article 254(2)(c) of that Order.
(3) Nothing in that Order shall be taken as restricting, or enabling the restriction of, the exercise of those powers.
(4) Where, in the case of a debtor, an interim receiver stands appointed under Article 259 of that Order and any property of the debtor is subject to a freezing order, the powers conferred on the receiver by virtue of that Order do not apply to property for the time being subject to the freezing order.
(5) In any case in which a petition in bankruptcy was presented, or a receiving order or adjudication in bankruptcy was made, before 1st October 1991 (the date on which the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)) came into force), this paragraph shall have effect with the following modifications—
(a) for references to the bankrupt’s estate for the purposes of Part IX of that Order there shall be substituted references to the property of the bankrupt for the purposes of the Bankruptcy Acts (Northern Ireland) 1857 to 1980;
(b) sub-paragraph (2)(b) shall be omitted;
(c) for the reference in sub-paragraph (2)(c) to Article 254(2)(c) of that Order there shall be substituted a reference to Articles 28(4), (5)(c) and (11) and 30(6)(c) of the Bankruptcy Amendment (Northern Ireland) Order 1980 (S.I. 1980/561 (N.I. 4));
(d) for the reference in sub-paragraph (3) to that Order there shall be substituted a reference to the Bankruptcy Acts (Northern Ireland) 1857 to 1980; and
(e) for the reference in sub-paragraph (4) to an interim receiver appointed under Article 259 of that Order there shall be substituted a reference to a receiver or manager appointed under section 68 of the Bankruptcy (Ireland) Amendment Act 1872 (c. 58).

Winding up: England and Wales

11 (1) Where an order for the winding up of a company has been made under the Insolvency Act 1986 (c. 45), or a resolution has been passed by a company for voluntary winding up under that Act, the functions of the liquidator (or any provisional liquidator) shall not be exercisable in relation to—
(a) property for the time being subject to a freezing order, or an order having the like effect in Scotland, made before the relevant time, and
(b) any proceeds of property realised by virtue of paragraph 5(2) for the time being in the hands of a receiver appointed under that paragraph.
(2) Where such an order has been made or such a resolution has been passed, the powers conferred on a receiver appointed under paragraph 5 shall not be exercised in relation to any property held by the company in relation to which the functions of the liquidator are exercisable—
(a) so as to inhibit him from exercising those functions for the purpose of distributing any property held by the company to the company’s creditors; or
(b) so as to prevent the payment out of any property of expenses (including the remuneration of the liquidator or any provisional liquidator) properly incurred in the winding up in respect of the property.
(3) Nothing in the Insolvency Act 1986 shall be taken as restricting, or enabling the restriction of, the exercise of those powers.
(4) In this paragraph—
• “company” means any company which may be wound up under the Insolvency Act 1986; and
• “the relevant time” means—
(a)
where no order for the winding up of the company has been made, the time of the passing of the resolution for voluntary winding up;
(b)
where such an order has been made and, before the presentation of the petition for the winding up of the company by the court, such a resolution had been passed by the company, the time of the passing of the resolution; and
(c)
in any other case where such an order has been made, the time of the making of the order.
(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 (c. 45) came into operation), this paragraph shall have effect with the substitution for references to that Act of references to the Companies Act 1985 (c. 6).

Winding up: Northern Ireland

12 (1) Where an order for the winding up of a company has been made under the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)), or a resolution has been passed by a company for voluntary winding up under that Order, the functions of the liquidator (or any provisional liquidator) shall not be exercisable in relation to—
(a) property for the time being subject to a freezing order, or an order having the like effect in Scotland, made before the relevant time, and
(b) any proceeds of property realised by virtue of paragraph 5(2) for the time being in the hands of a receiver appointed under that paragraph.
(2) Where such an order has been made or such a resolution has been passed, the powers conferred on a receiver appointed under paragraph 5 shall not be exercised in relation to any property held by the company in relation to which the functions of the liquidator are exercisable—
(a) so as to inhibit him from exercising those functions for the purpose of distributing any property held by the company to the company’s creditors; or
(b) so as to prevent the payment out of any property of expenses (including the remuneration of the liquidator or any provisional liquidator) properly incurred in the winding up in respect of the property.
(3) Nothing in the Insolvency (Northern Ireland) Order 1989 shall be taken as restricting, or enabling the restriction of, the exercise of those powers.
(4) In this paragraph—
• “company” means any company which may be wound up under the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)); and
• “the relevant time” means—
(a)
where no order for the winding up of the company has been made, the time of the passing of the resolution for voluntary winding up;
(b)
where such an order has been made and, before the presentation of the petition for the winding up of the company by the court, such a resolution had been passed by the company, the time of the passing of the resolution; and
(c)
in any other case where such an order has been made, the time of the making of the order.
(5) In any case in which a winding up of a company commenced or is treated as having commenced before 1st October 1991 (the date on which the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)) came into operation), this paragraph shall have effect with the substitution for references to that Order of references to the Companies (Northern Ireland) Order 1986 (S.I. 1986/1032 (N.I. 6)).

Protection of insolvency practitioners

13 (1) This paragraph applies where an insolvency practitioner seizes or disposes of property which is subject to a freezing order and—
(a) he reasonably believes that he is entitled to do so in the exercise of his functions, and
(b) he would be so entitled if the property were not subject to a freezing order.
(2) The insolvency practitioner shall not be liable to any person in respect of any loss or damage resulting from the seizure or disposal except in so far as the loss or damage is caused by his negligence.
(3) The insolvency practitioner shall have a lien on the property seized or the proceeds of its sale—
(a) for such of his expenses as were incurred in connection with the insolvency proceedings in relation to which the seizure or disposal purported to take place, and
(b) for so much of his remuneration as may be reasonably assigned for his acting in connection with those proceedings.
(4) Sub-paragraphs (1) to (3) are without prejudice to the generality of any provision contained in the Insolvency Act 1986 (c. 45) or the Insolvency (Northern Ireland) Order 1989.
(5) In this paragraph “insolvency practitioner”, in any part of the United Kingdom, means a person acting as an insolvency practitioner in that or any other part of the United Kingdom.
(6) For the purpose of sub-paragraph (5) any question whether a person is acting as an insolvency practitioner in England and Wales or in Scotland shall be determined in accordance with section 388 of the Insolvency Act 1986, except that—
(a) the reference in section 388(2)(a) to a permanent or interim trustee in the sequestration of a debtor’s estate shall be taken to include a reference to a trustee in sequestration,
(b) section 388(5) shall be disregarded, and
(c) the expression shall also include the Official Receiver acting as receiver or manager of property.
(7) For the purpose of sub-paragraph (5) any question whether a person is acting as an insolvency practitioner in Northern Ireland shall be determined in accordance with Article 3 of the Insolvency (Northern Ireland) Order 1989, except that—
(a) Article 3(5) shall be disregarded, and
(b) the expression shall also include the Official Receiver acting as receiver or manager of property.

Interpretation

14 (1) For the purposes of this Schedule—
(a) “property” includes money and all other property, real or personal, heritable or moveable, and including things in action and other intangible or incorporeal property; and
(b) “dealing with property” includes (without prejudice to the generality of that expression)—
(i) where a debt is owed to a person, making a payment to any person in reduction of the amount of the debt, and
(ii) removing the property from England and Wales or Northern Ireland.
(2) For the purposes of this Schedule ICC proceedings are concluded—
(a) when there is no further possibility of a forfeiture order being made in the proceedings; or
(b) on the satisfaction of a forfeiture order made in the proceedings (whether by the recovery of all the property liable to be recovered, or otherwise).