S.I. No. 343/1996 - Criminal Justice Act, 1994 (Section 46(6)) Regulations, 1996

S.I. No. 343 of 1996.

CRIMINAL JUSTICE ACT, 1994 (Section 46(6)) REGULATIONS, 1996.

WHEREAS the Government are empowered by section 46 (6) of the Criminal Justice Act, 1994 (No. 15 of 1994), by regulations to make such modifications of that Act as appear to it to be necessary or expedient for the purpose of adapting to confiscation co-operation orders any of the provisions of that Act relating to confiscation orders;

AND WHEREAS it appears to the Government that it is both necessary and expedient to make modifications to sections 2 and 3 and Part III of that Act for that purpose;

AND WHEREAS a draft of these Regulations making those modifications has been laid before each House of the Oireachtas and a resolution approving of the draft has been passed by each such House;

NOW, therefore, the Government in exercise of the powers conferred on it by section 46 (6) of the Criminal Justice Act, 1994 , hereby makes the following Regulations:

1.

• (2) These Regulations shall come into operation on the 3rd day of December, 1996.

2.

3.

SCHEDULE

CRIMINAL JUSTICE ACT, 1994

Regulation 3.

Commencement.

2.— The provisions of this Act, as modified for the purpose of adapting it to confiscation co-operation orders, shall come into operation upon the commencement of the Criminal Justice Act, 1994 (Section 46(6)) Regulations, 1996.

Interpretation.

3.— (1) In this Act—

"conduct" means conduct corresponding to an offence in respect of which a confiscation order could be made under section 9 of this Act;

"confiscation order" means an order made under section 4(4) or 9(1) of this Act;

"controlled drug" has the same meaning as in section 2 of the Misuse of Drugs Act, 1977 ;

"corresponding law" has the same meaning as in section 20 (2) of the Misuse of Drugs Act, 1977 ;

"dealing with property" shall be construed in accordance with section 24(8) of this Act;

"defendant" means a person against whom a confiscation co-operation order has been made, or a person against whom proceedings which may result in a confiscation co-operation order being made have been, or are to be, instituted in a designated country;

"drug trafficking" means doing or being concerned in any of the following, whether in the State or elsewhere, that is to say —

• (a) producing or supplying a controlled drug where the production or supply contravenes any regulations made under section 5 of the Misuse of Drugs Act, 1977 , and in force at the material time (whether before or after the commencement of the Criminal Justice Act, 1994 (Section 46(6)) Regulations, 1996) or a corresponding law,

• (b) transporting or storing a controlled drug where possession of the drug contravenes section 3 of that Act or a corresponding law,

• (c) importing or exporting a controlled drug where the importation or exportation contravenes any such regulations as mentioned in paragraph (a) of this definition or a corresponding law,

• (d) doing any act, whether in the State or elsewhere and whether before or after the commencement of the Criminal Justice Act, 1994 (Section 46(6)) Regulations, 1996, in relation to property obtained, whether directly or indirectly, from anything done in relation to a controlled drug, that amounts to an offence under section 31 of this Act or would have amounted to such an offence if that section had been in operation at the time when the act was done or, in the case of an act done in a country or territory outside the State, would amount or have amounted to such an offence if done in corresponding circumstances in the State (and for the purpose of this definition the references in subsections (1) and (2) of the said section 31 to removing property from the State shall include references to removing it from the country or territory in question), or

• (e) using any ship for illicit traffic in controlled drugs in contravention of section 33 or 34 of this Act;

"drug trafficking offence" means any of the following —

• (a) an offence under any regulations made under section 5 of the Misuse of Drugs Act, 1977 , involving the manufacture, production, preparation, importation, exportation, supply, offering to supply, distribution or transportation of a controlled drug,

• (b) an offence under section 15 of that Act of possession of a controlled drug for unlawful sale or supply,

• (c) an offence under section 20 of that Act (assisting in or inducing the commission outside the State of an offence punishable under a corresponding law),

• (d) an offence under the Customs Acts in relation to the importation or exportation of a controlled drug or in relation to the fraudulent evasion of any prohibition, restriction or obligation in relation to such importation or exportation,

• (e) an offence under section 31 of this Act in relation to the proceeds of drug trafficking,

• (f) an offence under section 33 or 34 of this Act, or

• (g) an offence of aiding, abetting, counselling or procuring the commission of any of the offences mentioned in paragraphs (a) to (f)) of this definition or of attempting or conspiring to commit any such offence or inciting another person to do so;

"forfeiture order" means an order made under section 61 of this Act;

"interest", in relation to property, includes right;

"Minister" means the Minister for Justice;

"proceeds of drug trafficking" has the meaning assigned to it by section 5(1)(a) of this Act;

"property" includes money and all other property, real or personal, heritable or moveable, including choses in action and other intangible or incorporeal property;

"realisable property" means—

• (a) in relation to a confiscation co-operation order made in respect of specified property, the property which is specified in the order; and

• (b) in any other case—

• (i) any property held by the defendant, and

• (ii) any property held by a person to whom the defendant has directly or indirectly made a gift caught by this Act,

but does not include property which is the subject of—

• (a) an order under section 30 of the Misuse of Drugs Act, 1977 (forfeiture orders), or

• (b) an order under section 4 (confiscation orders: drug trafficking offences), section 9 (confiscation orders: offences other than drug trafficking offences) or section 61 (forfeiture orders) of this Act;

"receiver" means a person appointed as a receiver under section 20(2) or 24(7) of this Act;

"restraint order" has the meaning assigned to it by section 24 of this Act;

"value of proceeds of drug trafficking" has the meaning assigned to it by section 5(1)(b) of this Act.

• (3) Subject to the provisions of subsections (4) to (12) of this section, for the purposes of this Act the value of property (other than cash) in relation to any person holding the property –

• (a) where any other person holds an interest in the property, is –

• (i) the market value of the first-mentioned person's beneficial interest in the property, less

• (ii) the amount required to discharge any incumbrance on that interest, and

• (b) in any other case, is its market value.

• (4) References in this Act to the value at any time (referred to in subsection (5) of this section as "the material time") of a person's proceeds of drug trafficking or, as the case may be, of any property obtained by a person as a result of or in connection with conduct are references to –

• (a) the value of the said proceeds or property to the recipient when he obtained them or it, adjusted to take account of subsequent changes in the value of money, or

• (b) where subsection (5) of this section applies, the value there mentioned,

whichever is the greater.

• (5) If at the material time the recipient holds –

• (a) the proceeds or property which he obtained (not being cash), or

• (b) property which, in whole or in part, directly or indirectly represents in his hands the proceeds or property which he obtained,

the value referred to in subsection (4)(b) of this section is the value to him at the material time of the proceeds or property mentioned in paragraph (a) of this subsection or, as the case may be, of the proceeds or property mentioned in paragraph (b) of this subsection, so far as it so represents the proceeds or property which he obtained.

• (6) Subject to subsection (12) of this section, references in this Act to the value at any time (referred to in subsection (7) of this section as "the material time") of a gift caught by this Act or to a payment or reward are references to –

• (a) the value of the gift, payment or reward to the recipient when he received it adjusted to take account of subsequent changes in the value of money, or

• (b) where subsection (7) of this section applies, the value there mentioned,

whichever is the greater.

• (7) Subject to subsection (12) of this section, if at the material time the recipient holds –

• (a) the property which he received (not being cash), or

• (b) property which, in whole or in part, directly or indirectly represents in his hands the property which he received,

the value referred to in subsection (6) of this section is the value to him at the material time of the property mentioned in paragraph (a) of this subsection or, as the case may be, of the property mentioned in paragraph (b) of this subsection so far as it so represents the property which he received.

• (9) For the purposes of the provisions of this Act relating to drug trafficking, a gift (including a gift made before the commencement of the Criminal Justice Act, 1994 (Section 46(6)) Regulations, 1996) is caught by this Act if –

• (a) it was made by the defendant at any time since the beginning of the period of 6 years ending when the proceedings were instituted against him, or

• (b) it was made by the defendant at any time and was a gift of property –

• (i) which was received by the defendant in connection with drug trafficking carried on by him or another, or

• (ii) which in whole or in part directly or indirectly represented in the defendant's hands property received by him in that connection.

• (10) For the purposes of the provisions of this Act relating to conduct, a gift (including a gift made before the commencement of the Criminal Justice Act, 1994 (Section 46(6)) Regulations, 1996) is caught by this Act if –

• (a) it was made by the defendant at any time after the conduct to which an external confiscation order relates, and

• (b) the court considers it appropriate in all the circumstances to take the gift into account.

• (12) For the purposes of this Act –

• (a) the circumstances in which the defendant is to be treated as making a gift include those where he transfers property to another person directly or indirectly for a consideration the value of which is significantly less than the value of the consideration provided by the defendant, and

• (b) in those circumstances, subsections (3) to (10) of this section shall apply as if the defendant had made a gift of such share in the property as bears to the whole property the same proportion as the difference between the values referred to in paragraph (a) of this subsection bears to the value of the consideration provided by the defendant.

• (13) This Act applies to property wherever situated.

• (15) A reference in this Act to property obtained, or to a pecuniary advantage derived, in connection with drug trafficking or conduct includes references to property obtained, or to a pecuniary advantage derived, both in that connection and in some other connection and whether obtained or derived before or after the commencement of the Criminal Justice Act, 1994 (Section 46(6)) Regulations, 1996.

• (16) The following provisions shall have effect for the interpretation of this Act, namely,

• (a) property is held by any person if he holds any interest in it,

• (b) references to property held by a person include a reference to property vested in his trustee within the meaning of Part V of the Bankruptcy Act, 1988 or liquidator,

• (c) references to an interest held by a person beneficially in property include a reference to an interest which would be held by him beneficially if the property were not so vested,

• (d) property is transferred by one person to another if the first person transfers or grants to the other any interest in the property,

• (e) proceedings for an offence are instituted in a designated country when –

• (i) the defendant has been notified in accordance with the laws of the designated country that the competent authorities of that country have begun proceedings against him in respect of an offence, or

• (ii) an application has been made to a court in a designated country for an external confiscation order,

and where the application of this section would result in there being more than one time for the institution of proceedings, they shall be taken to have been instituted at the earliest of those times,

• (f) proceedings for an offence are concluded –

• (i) when (disregarding any power of a court to grant leave to appeal out of time) there is no further possibility of an external confiscation order being made in the proceedings, or

• (ii) on the satisfaction of an external confiscation order made in the proceedings in accordance with the law of the country in which it was made,

• (i) a confiscation co-operation order is satisfied when no amount is due under it,

• (j) an order is subject to appeal until (disregarding any power of a court to grant leave to appeal out of time) there is no further possibility of an appeal on which the order could be varied or set aside.

• (17) In this Act, a reference to any enactment shall be construed as a reference to that enactment as amended or adapted by or under any subsequent enactment (including this Act).

PART III ENFORCEMENT, ETC. OF CONFISCATION CO-OPERATION ORDERS

Enforcement of confiscation co-operation orders.

19.– (1) Where a court makes a confiscation co-operation order, then (without prejudice to the provisions of section 22 of this Act enabling property of the defendant in the hands of a receiver appointed under this Act to be applied in satisfaction of the confiscation co-operation order) the order may be enforced by the Director of Public Prosecutions at any time after it is made (or, if the order provides for payment at a later time, then at any time after the later time) as if it were a judgment of the High Court for the payment to the State of the sum specified in the order (or of any lesser sum remaining due under the order), save that nothing in this subsection shall enable a person to be imprisoned.

• (2) Subject to subsection (3) of this section, if, at any time after payment of a sum due under a confiscation co-operation order has become enforceable in the manner provided for by subsection (1) of this section, it is reported to the High Court, by the Director of Public Prosecutions that any such sum or any part thereof remains unpaid, the court may, without prejudice to the validity of anything previously done under the order or to the power to enforce the order in the future in accordance with subsection (1) of this section, order that the defendant shall be imprisoned for a period not exceeding that set out in the second column of the table to this section opposite to the amount set out therein of the confiscation co-operation order remaining unpaid.

• (3) An order under subsection (2) of this section shall not be made unless the defendant has been given a reasonable opportunity to make any representations to the court that the order should not be made and the court has taken into account any representations so made and any representations made by the Director of Public Prosecutions in reply.

• (4) Any term of imprisonment imposed under subsection (2) of this section shall be reduced in proportion to any sum or sums paid or recovered from time to time under the confiscation co-operation order.

TABLE

Amount outstanding under confiscation co-operation order	Period of imprisonment
Not exceeding £500	45 days
Exceeding £500 but not exceeding £1,000	3 months
Exceeding £1,000 but not exceeding £2,500	4 months
Exceeding £2,500 but not exceeding £5,000	6 months
Exceeding £5,000 but not exceeding £10,000	9 months
Exceeding £10,000 but not exceeding £20,000	12 months
Exceeding £20,000 but not exceeding £50,000	18 months
Exceeding £50,000 but not exceeding £100,000	2 years
Exceeding £100,000 but not exceeding £250,000	3 years
Exceeding £250,000 but not exceeding £1 million	5 years
Exceeding £1 million	10 years

Realisation of property

20.- (1) Where -

• (a) a confiscation co-operation order has been made under this Act,

and

• (c) the confiscation co-operation order has not been satisfied,

the High Court may, on an application by the Director of Public Prosecutions, exercise the powers conferred by subsections (2) to (6) of this section.

• (2) The court may appoint a person to be a receiver in respect of realisable property.

• (3) The court may empower a receiver appointed under subsection (2) of this section or under section 24 of this Act to take possession of the property subject to such conditions or exceptions as may be specified by the court.

• (4) The court may order any person having possession or control of realisable property to give possession of it to the receiver.

• (5) The court may empower the receiver to realise any realisable property in such manner as the court may direct.

• (6) The court may order any person holding an interest in realisable property to make such payment to the receiver in respect of any beneficial interest held by the defendant or, as the case may be, the recipient of any gift caught by this Act as the court may direct and the court may, on the payment being made, by order transfer, grant or extinguish any interest in the property.

• (7) The court shall not, in respect of any property, exercise the powers conferred by subsection (3), (4), (5) or (6) of this section unless a reasonable opportunity has been given for persons holding any interest in the property to make representations to the court.

Interest on sums unpaid under confiscation co-operation orders.

21.- (1) Subject to subsection (2) of this section, if any sum required to be paid by a person under a confiscation co-operation order is not paid when it is required to be paid (whether forthwith on the making of an order or at the time specified by the court), that person shall be liable to pay interest on that sum for the period for which it remains unpaid and the amount of the interest shall for the purposes of enforcement be treated as part of the amount to be recovered from him under the confiscation co-operation order.

• (2) The amount of interest payable under subsection (1) of this section shall be disregarded for the purposes of calculating the term of imprisonment to be imposed by virtue of section 19 of this Act.

• (3) The rate of interest payable under subsection (1) of this section shall be that for the time being applying to a High Court civil judgment debt.

Currency of payments under confiscation co-operation orders.

21A.- Where a sum of money payable or remaining to be paid under a confiscation co-operation order is expressed in a currency other than the currency of the State, then for the purposes of any action taken under the Act of 1994 as modified by these Regulations, the amount shall be converted into the currency of the State at the rate of exchange prevailing on the date of the making of the order, between that currency and the currency of the State

Application of proceeds of realisation.

22.- (1) Money paid or recovered in respect of a confiscation co-operation order (including any variation of such an order) may, to the extent necessary, be applied to meet expenses incurred in exercising any powers under this Act and the remuneration of any person employed for that purpose.

• (2) Money paid or recovered in respect of a confiscation co-operation order shall, following the payment of any expenses or remuneration in accordance with subsection (1) of this section, be applied towards satisfaction of the confiscation co-operation order and paid into or disposed of for the benefit of the Exchequer in accordance with the directions of the Minister for Finance.

Cases in which restraint orders may be made.

23.- (1) The powers conferred on the High Court by section 24 of this Act shall be exercisable where-

• (a) (i) proceedings have been instituted against the defendant in a designated country,

• (ii) the proceedings have not been concluded, and

• (iii) either a confiscation co-operation order has been made in connection with the proceedings or it appears to the court that there are reasonable grounds for thinking that such an order may be made in connection with the proceedings,

or

• (b) (i) the court is satisfied that proceedings are to be instituted against a person in a designated country, and

• (ii) it appears to the court that there are reasonable grounds for thinking that an application may be made for a confiscation co-operation order in connection with the proceedings.

• (3) Where the court has made an order under section 24 of this Act by virtue of subsection (1)(b) of this section, the court shall discharge the order if the proposed proceedings are not instituted or the application is not made within such time as the court considers reasonable.

Restraint orders.

24.- (1) The High Court may by order (in this Act referred to as a "restraint order") prohibit any person from dealing with any realisable property, subject to such conditions and exceptions as may be specified in that order.

• (2) Without prejudice to the generality of subsection (1) of this section, a restraint order may make such provision as the court thinks fit for living expenses and legal expenses.

• (3) A restraint order may apply -

• (a) where an application under subsection (4) of this section relates to a confiscation co-operation order made in respect of specified property, to property which is specified in that order, and

• (b) in any other case -

• (i) to all realisable property held by a specified person, whether the property is described in the order or not, and

• (ii) to realisable property held by a specified person, being property transferred to him after the making of the order.

• (4) A restraint order -

• (a) may be made on an application by or on behalf of the Government of a designated country, with the consent of the Minister, which may be made ex parte and otherwise than in public, and

• (b) may provide for service on, or the provision of notice to, persons affected by the order in such manner as the court may direct.

• (5) A restraint order -

• (a) may be discharged or varied in relation to any property, and

• (b) shall be discharged on the conclusion of the proceedings or of the application in question.

• (6) An application for the discharge or variation of a restraint order may be made by any person affected by it.

• (7) Where the High Court has made a restraint order, the court may at any time appoint a receiver -

• (a) to take possession of any realisable property, and

• (b) in accordance with the court's directions, to manage or otherwise deal with any property in respect of which he is appointed,

subject to such exceptions and conditions as may be specified by the court, and may require any person having possession or control of property in respect of which a receiver is appointed under this section to give possession of it to the receiver.

• (8) For the purposes of this Act, dealing with property held by any person includes (without prejudice to the generality of the expression) -

• (a) where a debt is owed to that person, making a payment to any person in reduction of the amount of the debt, and

• (b) removing the property from the State.

• (9) Where the High Court has made a restraint order, a member of the Garda Síochána or an officer of customs and excise may, for the purpose of preventing any realisable property being removed from the State, seize the property.

• (10) Property seized under subsection (9) of this section shall be dealt with in accordance with the court's directions.

Registration of restraint orders

25.- (1) Where a restraint order is made, the registrar of the High Court shall, in the case of registered land, furnish the Registrar of Titles with notice of the order and the Registrar of Titles shall thereupon cause an entry to be made in the register under the Registration of Title Act, 1964 , inhibiting, until such time as the order is discharged, any dealing with any registered land or charge which appears to be affected by the order.

• (2) Where notice of an order has been given under subsection (1) of this section and the order is varied, the registrar of the High Court shall furnish the Registrar of Titles with notice to that effect and the Registrar of Titles shall thereupon cause the entry made under subsection (1) of this section to be varied to that effect.

• (3) Where notice of an order has been given under subsection (1) of this section and the order is discharged, the registrar of the High Court shall furnish the Registrar of Titles with notice to that effect and the Registrar of Titles shall cancel the entry made under subsection (1) of this section.

• (4) Where a restraint order is made, the registrar of the High Court shall, in the case of unregistered land, furnish the Registrar of Deeds with notice of the order and the Registrar of Deeds shall thereupon cause the notice to be registered in the Registry of Deeds pursuant to the Registration of Deeds Act, 1707.

• (5) Where notice of an order has been given under subsection (4) of this section and the order is varied, the registrar of the High Court shall furnish the Registrar of Deeds with notice to that effect and the Registrar of Deeds shall thereupon cause the entry made under subsection (4) of this section to be varied to that effect.

• (6) Where notice of an order has been given under subsection (4) of this section and the order is discharged, the registrar of the High Court shall furnish the Registrar of Deeds with notice to that effect and the Registrar of Deeds shall thereupon cancel the entry made under subsection (4) of this section.

• (7) Where a restraint order is made which applies to an interest in a company or to the property of a company, the registrar of the High Court shall furnish the Registrar of Companies with notice of the order and the Registrar of Companies shall thereupon cause the notice to be entered in the Register of Companies maintained under the Companies Acts, 1963 to 1990.

• (8) Where notice of an order has been given under subsection (7) of this section and the order is varied, the registrar of the High Court shall furnish the Registrar of Companies with notice to that effect and the Registrar of Companies shall thereupon cause the entry made under subsection (7) of this section to be varied to that effect.

• (9) Where notice of an order has been given under subsection (7) of this section and the order is discharged, the registrar of the High Court shall furnish the Registrar of Companies with notice to that effect and the Registrar of Companies shall thereupon cancel the entry made under subsection (7) of this section.

Exercise of powers by High Court or receiver.

26.- (1) This section applies to the powers conferred on the High Court by section 20 or 24 of this Act or on a receiver appointed under either of those sections.

• (2) Subject to the provisions of this section, the powers shall be exercised with a view to recovering property which is liable to be recovered under a confiscation co-operation order or, as the case may be, with a view to making available for recovery property which may become liable to be recovered under any confiscation co-operation order that may be made in the defendant's case.

• (3) In the case of realisable property held by a person to whom the defendant has directly or indirectly made a gift caught by this Act, the powers shall be exercised with a view to realising no more than the value for the time being of the gift.

• (4) The powers shall be exercised with a view to allowing any person, other than the defendant or the recipient of any such gift, to retain or recover the value of any property held by him.

• (5) In exercising the powers no account shall be taken of any obligations of the defendant or of the recipient of any such gift that conflict with the obligation to satisfy the confiscation co-operation order.

Receivers: supplementary provisions

27.- Where a receiver takes any action -

• (a) in relation to property which is not realisable property, being action which he would be entitled to take if it were such property,

• (b) believing, and having reasonable grounds for believing, that he is entitled to take that action in relation to that property,

he shall not be liable to any person in respect of any loss or damage resulting from his action except in so far as the loss or damage is caused by his negligence.

Bankruptcy of defendant, etc.

28.- (1) Where a person who holds realisable property is adjudicated bankrupt —

• (a) property for the time being subject to a restraint order made before the order adjudicating him bankrupt, and

• (b) any proceeds of property realised by virtue of section 20(5) or (6) or 24 (7) of this Act, for the time being in the hands of a receiver,

is excluded from the property of the bankrupt for the purposes of the Bankruptcy Act, 1988 .

• (2) Where a person has been adjudicated bankrupt, the powers conferred on the High Court or on a receiver by section 20 or 24 of this Act shall not be exercised in relation to property of the bankrupt for the purposes of the said Act of 1988.

• (3) Where a person is adjudicated bankrupt and has directly or indirectly made a gift caught by this Act –

• (a) no decision as to whether the gift is void shall be made under section 57, 58 or 59 of the said Act of 1988 in respect of the making of the gift at any time when property of the person to whom the gift was made is subject to a restraint order, and

• (b) any decision as to whether it is void made under any of those sections after the discharge of the restraint order shall take into account any realisation under this Act of property held by the person to whom the gift was made.

• (4) In any case in which a petition in bankruptcy was presented, or an adjudication in bankruptcy was made, before 1st January, 1989, this section shall have effect with the modification that for references to the property of the bankrupt for the purposes of the said Act of 1988 there shall be substituted references to the property of the bankrupt vesting in the assignees for the purposes of the law of bankruptcy existing before that date.

Property subject to restraint order dealt with by Official Assignee.

29.- (1) Without prejudice to the generality of any provision of any other enactment, where -

• (a) the Official Assignee or a trustee appointed under the provisions of Part V of the Bankruptcy Act, 1988 , seizes or disposes of any property in relation to which his functions are not exercisable because it is for the time being subject to a restraint order, and

• (b) at the time of the seizure or disposal he believes, and has reasonable grounds for believing, that he is entitled (whether in pursuance of an order of the court or otherwise) to seize or dispose of that property,

he 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 in so acting, and he shall have a lien on the property, or the proceeds of its sale, for such of his expenses as were incurred in connection with the bankruptcy or other proceedings in relation to which the seizure or disposal purported to take place and for so much of his remuneration as may reasonably be assigned for his acting in connection with those proceedings.

• (2) Where the Official Assignee or a trustee appointed as aforesaid incurs expenses in respect of such property as is mentioned in paragraph (a) of subsection (1) of this section and in so doing does not know and has no reasonable grounds to believe that the property is for the time being subject to a restraint order, he shall be entitled (whether or not he has seized or disposed of that property so as to have a lien) to payment of those expenses under section 22 of this Act.

Winding up of company holding realisable property.

30.- (1) Where realisable property is held by a company and an order for the winding up of the company has been made or a resolution has been passed by the company for a voluntary winding up, 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 restraint order made before the relevant time, and

• (b) any proceeds of property realised by virtue of section 20(5) or (6) or 24(7) of this Act for the time being in the hands of a receiver.

• (2) Where, in the case of a company, such an order has been made or such a resolution has been passed, the powers conferred by section 20 or 24 of this Act on the High Court or on a receiver shall not be exercised in relation to any realisable 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) In this section -

"company" means any company which may be wound up under the Companies Acts, 1963 to 1990;

"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.

GIVEN UNDER THE OFFICIAL SEAL OF THE GOVERNMENT,

THIS 26th DAY OF NOVEMBER, 1996

DICK SPRING

TÁNAISTE

EXPLANATORY NOTE

These Regulations make modifications to the Criminal Justice Act, 1994 for the purpose of adapting to confiscation co-operation orders provisions of the Act relating to confiscation orders.