United Kingdom of Great Britain and Northern Ireland
SCHEDULE 4
TAKING OF FINGERPRINTS OR NON-INTIMATE SAMPLES
Nomination of court to supervise taking of evidence
1.—(1) Where the Governor receives a request from the ICC for assistance in obtaining evidence as to the identity of a person, he may nominate a court in the Territory 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 provided 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, the law of the Territory applies—
(a) as to whether the sample is a sufficient sample, and
(b) as to the manner of taking the sample,
as it applies to the investigation of a serious offence under the law of the Territory.
(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” means the consent of the person concerned or, where the law of the Territory provides for consent to be given on that person’s behalf by some other person, the consent of that other person.
(3) The court shall inform the person concerned of the effect of this paragraph.
Taking of evidence without consent
5.—(1) A constable may be authorised by a superior officer to take the necessary identification evidence without consent.
(2) An officer may given 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 Governor 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 any law of the Territory providing for the 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, and
(b) any of the fingerprints, samples and information against which checking is permitted for the purposes of the investigation of an offence under the law of the Territory.
(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. The law of the Territory as to the retention and destruction of fingerprints or samples applies to fingerprints and samples taken under this Schedule in connection with the investigation of an ICC crime as it applies in relation to fingerprints and samples taken in connection with the investigation of an offence under the law of the Territory.
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 judge of the Supreme Court on an application made in pursuance of a direction by the Governor under section 37(1) (investigation of proceeds of ICC crime).
(2) Any such application in the Territory may be made without notice and may be granted without a hearing.
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 includes 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 Supreme Court.
(2) Provision may be made by rules of court as to—
(a) the discharge and variation of such orders, and
(b) proceedings relating to such orders,
and in this sub-paragraph “rules of court” means rules made for the purposes of this Part by an appropriate rule-making authority in the Territory.
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 any provisions of the law of the Territory relating to access to, and the copying and retention of, seized material in the investigation of serious offences, 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 in connection with the investigation of a serious offence under the law of the Territory.
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 a department of the government of the Territory for the purposes of any law relating to proceedings against the Crown.
PART 2
SEARCH WARRANTS
Application for warrant
8.—(1) A search warrant may be issued under this Part of this Schedule by a competent court of the Territory on an application made in pursuance of a direction by the Governor under section 37(1) (investigation of proceeds of ICC crime).
(2) For the purposes of this Part a competent court is a court or other judicial authority having power under the law of the Territory to issue a search warrant in a case of serious crime.
Effect 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 court may issue a search warrant under this Part of this Schedule in the following cases.
(2) The first case is where the court 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 court 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 court 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 customs officer, and
“items subject to legal privilege” and “premises” shall be construed as they would be for the purposes of the law of the Territory relating to a constable’s powers of search and seizure in the investigation of an offence.
SCHEDULE 6
SUPPLEMENTARY PROVISIONS
Application for freezing order
1.—(1) A freezing order may be made by the Supreme Court on an application in pursuance of a direction given by the Governor under section 38, and any such application may be made without notice and may be granted without a hearing.
(2) Omitted
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 Supreme 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 Supreme 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 Territory, seize the property.
(2) Omitted.
(3) Property seized under this paragraph shall be dealt with in accordance with the directions of the Supreme Court.
Registered land
7.—(1) The provisions of the law of the Territory relating to registered land 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
(b) in relation to applications for freezing orders, as they apply in relation to other pending land actions.
(2) The ICC shall be treated for the purposes of those provisions as a person interested in relation to any registered land to which a freezing order or an application for a freezing order relates.
8. Omitted.
Bankruptcy
9.—(1) Where a person is adjudged bankrupt in the Territory, property for the time being subject to a freezing order made before the order adjudging him bankrupt, and 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 the law of the Territory relating to bankruptcy.
(2) Where a person has been adjudged bankrupt in the Territory, 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 the said law of the Territory;
(b) property in respect of which his trustee in bankruptcy may (without the leave of the court) serve a notice under any law of the Territory for the purpose of making available as part of a bankrupt person’s estate after-acquired property and tools, clothes and other items exceeding the value of their reasonable replacement, and tenancies, and
(c) property which is to be applied for the benefit of creditors of the bankrupt by virtue of a condition imposed under the law of the Territory in an order of the court discharging him from bankruptcy with respect to any income which may subsequently become due to him, or with respect to property devolving upon him, or acquired by him, after his discharge.
(3) Nothing in the law of the Territory relating to bankruptcy 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 any provision of that law and any property of the debtor is subject to a freezing order, the powers conferred on the receiver by virtue of any provision of that law 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 an adjudication in bankruptcy was made, before the date on which the present law of the Territory relating to bankruptcy came into force, this paragraph shall have effect with the substitution of such references to the law in force before that date as may be necessary.
10. Omitted.
Winding up
11.—(1) Where an order for the winding up of a company has been made under the law of the Territory, or a resolution has been passed by a company for voluntary winding up under that law, 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 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 law of the Territory relating to bankruptcy or the winding up of companies 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 law of the Territory; and “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 the winding up of a company commenced or is treated as having commenced before the date on which the present law of the Territory relating to winding up came into force, this paragraph shall have effect with the substitution of such references to the law in force before that date as may be necessary.
12. Omitted.
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 law of the Territory relating to the expenses or remuneration of an insolvency practitioner.
(5) In this paragraph “insolvency practitioner” means a person acting as such and, for the purposes of this paragraph, the question whether any person is acting as such shall be determined in accordance with sub-paragraphs (6), (7) and (8) except that the expression shall also include an Official Receiver (however styled) acting as receiver or manager of property.
(6) For the purposes of this paragraph a person acts as an insolvency practitioner in relation to a company by acting—
(a) as its liquidator, provisional liquidator, administrator or administrative receiver, or
(b) as supervisor of a voluntary arrangement approved by it under the law for the time being in force in the Territory relating to the insolvency of companies.
(7) For the purposes of this paragraph a person acts as an insolvency practitioner in relation to an individual by acting—
(a) as his trustee in bankruptcy or interim receiver of his property, or
(b) as trustee under a deed which is a deed of arrangement made for the benefit of his creditors, or
(c) as supervisor of a voluntary arrangement proposed by him and approved under the law for the time being in force in the Territory relating to the insolvency of individuals, or
(d) in the case of a deceased individual to whose estate the provisions of the law for the time being in force in the Territory relating to the administration of the insolvent estates of deceased persons apply, as administrator of that estate.
(8) References in sub-paragraph (7) to an individual include, except in so far as the context otherwise requires, references to a partnership.
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 the Territory.
(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).
EDIT.