PROCEEDS OF CRIME ACT 1987 - SECT 43 Restraining orders

PROCEEDS OF CRIME ACT 1987 - SECT 43

  (1)   Where a person (in this section and section   44 called the defendant ):

  (a)   has been convicted of an indictable offence; or

  (b)   has been, or is about to be, charged with an indictable offence;

the DPP may apply to the relevant Supreme Court for an order under subsection   ( 2) against one or more of the following:

  (c)   specified property of the defendant;

  (d)   all the property of the defendant (including property acquired after the making of the order);

  (e)   all the property of the defendant (including property acquired after the making of the order) other than specified property;

  (f)   specified property of a person other than the defendant.

  (2)   Where the DPP applies to a court for an order under this subsection against property, the court may, subject to section   44, by order:

  (a)   direct that the property, or such part of the property as is specified in the order, is not to be disposed of, or otherwise dealt with, by any person, except in such manner and in such circumstances (if any) as are specified in the order; and

  (b)   if the court is satisfied that the circumstances so require--direct the Official Trustee to take custody and control of the property, or of such part of the property as is specified in the order.

  (2A)   The DPP is not empowered to make an application under this section after the commencement of the Proceeds of Crime Act 2002 .

  (3)   A restraining order against a person's property may be made subject to such conditions as the court thinks fit and, without limiting the generality of this, may make provision for meeting, out of the property or a specified part of the property, all or any of the following:

  (a)   the person's reasonable living expenses (including the reasonable living expenses of the person's dependants (if any)) and reasonable business expenses;

  (b)   the person's reasonable expenses in defending a criminal charge;

  (c)   a specified debt incurred by the person in good faith (being a debt to which neither paragraph   ( a) nor (b) applies).

  (4)   A court shall not make provision of a kind referred to in subsection   ( 3) unless it is satisfied that the defendant cannot meet the expense or debt concerned out of property that is not subject to a restraining order.

  (5)   Notwithstanding anything in the Bankruptcy Act, money that has come into the custody and control of the Official Trustee under a restraining order shall not be paid into the Common Investment Fund established under section   20B of that Act.

  (6)   Where the Official Trustee is given a direction under paragraph   ( 2)(b) in relation to property, the Official Trustee may do anything that is reasonably necessary for the purpose of preserving the property including, without limiting the generality of this:

  (a)   becoming a party to any civil proceedings affecting the property;

  (b)   ensuring that the property is insured;

  (c)   if the property consists, wholly or partly, of securities or investments--realising or otherwise dealing with the securities or investments; and

  (d)   if the property consists, wholly or partly, of a business:

  (i)   employing, or terminating the employment of, persons in the business; and

  (ii)   doing any other thing that is necessary or convenient for carrying on the business on a sound commercial basis.

  (6A)   Where the Official Trustee is given a direction under paragraph   ( 2)(b) in relation to shares in a company, it is entitled:

  (a)   to exercise the rights attaching to the shares as if it were the registered holder of the shares; and

  (b)   to do so to the exclusion of the registered holder.

  (6B)   Neither of paragraph   ( 6)(c) and subsection   ( 6A) limits the generality of the other.

  (7)   Where the DPP applies to a court for an order under subsection   ( 2), a witness shall not be required to answer a question or to produce a document if the court is satisfied that the answering of the question or the production of the document may prejudice the investigation of, or the prosecution of a person for, an offence.