Drug Trafficking Offences Act 1986 (United States of America) Order 1989
| Jurisdiction | UK Non-devolved |
| Citation | SI 1989/485 |
| Year | 1989 |
1989No. 485
CRIMINAL LAW, ENGLAND AND WALES
The Drug Trafficking Offences Act 1986 (United States of
America) Order 1989
15thMarch1989
29thMarch1989
At the Court at Buckingham Palace, the 15th day of March 1989
Present,
The Queen's Most Excellent Majesty in Council
Whereas a draft of this Order has been approved by a resolution of each House of Parliament:
Now, therefore, Her Majesty, in exercise of the powers conferred upon Her by section 26 of the Drug Trafficking Offences Act 1986 ( a), is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:
Title and commencement
1. This Order may be cited as the Drug Trafficking Offences Act 1986 (United States of America) Order 1989 and shall come into force on the fourteenth day following the date of making of this Order.
Interpretation
2. In this Order-
"the Act" means the Drug Trafficking Offences Act 1986;
"a court of the United States of America" means a court of the United States of America or of any of its states or territories.
Designation of and application of the Act to the United States of America
3.-(1) The United States of America is hereby designated for the purposes of sections 26 and 26A of the Act.
(2) The Act shall apply, subject to the modifications set out in Schedule 1 to this Order, in relation to an external confiscation order made by a court of the United States of America and to proceedings which have been or are to be instituted in the United States of America and which may result in an external confiscation order being made there, and, accordingly, in relation to such orders and such proceedings, the Act shall have effect as set out in Schedule 2 to this Order.
Orders made in the United States of America
4. For the purposes of section 26 of the Act, and of the Act as applied under article 3 above, in any proceedings in the High Court a certificate issued by or on behalf of the Attorney General of the United States of America stating either-
(a) that an order (however described) made by a court of the United States of America has the purpose of recovering payments or other rewards received in connection with drug trafficking or their value, or
(b) that proceedings have been instituted against a person in the United States of America and have not been concluded there,
shall be admissible as evidence of the facts so stated.
Satisfaction of confiscation order in the United States of America
5.-(1) Where-
(a) a confiscation order has been made under section 1 of the Act; and
(b) a request has been made by the Secretary of State for the assistance of the government of the United States of America in enforcing that order; and
(c) in consequence of that request property is recovered in the United States of America which represents, directly or indirectly, proceeds of drug trafficking which were taken into account under section 2 of the Act by the court which made the confiscation order,
the amount payable under the confiscation order shall be treated as reduced by the value of property so recovered.
(2) For the purposes of paragraph (1) above a certificate issued by or on behalf of the Attorney General of the United States of America stating that property has been recovered there in consequence of a request by the Secretary of State and stating the value of the property so recovered shall be admissible as evidence of the facts so stated.
G.I. de Deney |
|
Clerk of the Privy Council |
|
SCHEDULE 1
Article 3(2)
MODIFICATIONS OF THE DRUG TRAFFICKING OFFENCES ACT 1986
1. For section 1 there shall be substituted the following section:
"Confiscation orders
1.-(1) An order made by a court of the United States of America 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 a "confiscation order", and for the purposes of its registration under section 26A of this Act, "external confiscation order" means any such order.
(2) In subsection (1) above the reference to an order includes any order, decree, direction or judgment, however described.
(3) A person against whom a confiscation order has been made or a person against whom proceedings which may result in a confiscation order being made have been, or are to be, instituted in a court of the United States of America, is referred to in this Act as "the defendant" . " .
2. Sections 2 to 4 shall be omitted.
3. In section 5-
(a) for subsection (1) there shall be substituted the following subsection:
"(1) In this Act "realisable property" means, subject to subsection (2) below-
(a) in relation to a confiscation order made in respect of specified property, the property which is specified in the order; and
(b) in any other case, any property held by the defendant. "
(b) subsections (3) to (10) shall be omitted.
4. Section 6 shall be omitted.
5. In section 7-
(a) for subsection (1)(a) there shall be substituted:
"(a) proceedings have been instituted against the defendant in the United States of America,";
(b) for subsection (1)(c) there shall be substituted:
"(c) either a confiscation order has been made in the proceedings or it appears to the High Court that there are reasonable grounds for thinking that a confiscation order may be made in them " ;
(c) for subsection (2) there shall be substituted the following subsection:
"(2) Those powers are also exercisable where the High Court is satisfied that proceedings are to be instituted against a person in the United States of America and it appears to the court that a confiscation order may be made in them.";
(d) subsection (3) shall be omitted; and
(e) for subsection (4) there shall be substituted the following subsection:
"(4) Where the High Court has made an order under section 8(1) of 9(1) of this Act by virtue of subsection (2) above, it shall discharge the order if the proposed proceedings are not instituted within twenty-eight days.".
6. In section 8-
(a) for subsection (2)(a) and (b) there shall be substituted:
"(a) where an application under subsection (4) below relates to a confiscation order made in respect of specified property, to the property which is specified in that order; and
(b) in any other case-
(i) to all realisable property, whether the property is described in the restraint order or not, and
(ii) to realisable property, being property transferred to the defendant after the making of the restraint order. " ;
(b) in subsection (4) for the words "the prosecutor" there shall be substituted the words "or on behalf of the government of the United States of America";
(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)(b) and in subsection (8) for the words "Great Britain" there shall be substituted the words "England and Wales";
(e) in subsection (11), for the words "the prosecutor" there shall be substituted the words "A person applying for a restraint order on behalf of the government of the United States of America".
7. In section 9-
(a) for subsection (1)(a) and (b) there shall be substituted the following:
"(a) where a fixed amount is payable under a 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) for the words "the prosecutor" there shall be substituted the words "or on behalf of the government of the United States of America";
(c) in subsection (4)(a) the words "or by a person to whom the defendant has directly or indirectly made a gift caught by this Act" shall be omitted;
(d) in subsection (7) for the words "for the offence" there shall be substituted the words "against the defendant in the United States of America".
8. In section 10, subsection (6) shall be omitted.
9. After section 10 there shall be inserted the following section:
"10A. Notwithstanding anything in rule 3(2) of Order 115 of the Rules of the Supreme Court 1965 ( b), an application under section 8(4) or 9(3) of this Act shall be supported by an affidavit which shall-
(a) state, where applicable, the grounds for believing that a confiscation order may be made in the proceedings instituted or to be instituted in the United States of America;
(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) where proceedings have not been instituted in the United States of America, indicate when it is intended that they should be instituted there,
and the affidavit may, unless the court otherwise directs, contain statements of information or belief with the sources and grounds thereof.".
10. In section 11-
(a) for subsection (1) of section 11 there shall be substituted the following subsection:
"(1) Where a confiscation order has been registered in the High Court under section 26A of this Act, the High Court may, on an application by or on behalf of the government of the United States of America, exercise the powers conferred by subsections (2) to (6) below."; and
(b) in subsection (6) the words "or, as the case may be, the recipient of a gift caught by this Act" shall be omitted.
11. The following section shall be substituted for section 12:
"Application of proceeds of realisation and other sums.
12.-(1) Subject to subsection (2) below, the following sums in the hands of a receiver appointed under section 8 or 11 of this Act or in pursuance of a charging order, that is-
(a) the proceeds of the enforcement of any charge imposed under section 9 of this Act,
(b) the proceeds of the realisation, other than by the enforcement of such a charge, of any property under section 8 or 11 of this Act, and
(c) any other sums, being property held by the defendant,
shall first be applied in payment of such expenses incurred...
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