Statutory Rules of Northern Ireland
1996 No. 282
SUPREME COURT, NORTHERN IRELAND
PROCEDURE
The Rules of the Supreme Court (Northern Ireland) (Amendment No. 2) 1996
Made
10th July 1996
To be laid before Parliament
Coming into operation
25th August 1996
We, the Northern Ireland Supreme Court Rules Committee, being the authority having for the time being power under section 55 of the Judicature (Northern Ireland) Act 1978(1) to make, amend or revoke rules regulating the practice and procedure of the Supreme Court of Judicature of Northern Ireland, hereby, with the concurrence of the Lord Chancellor, exercise those powers as follows:
Citation, commencement and interpretation
1.—(1) These Rules may be cited as the Rules of the Supreme Court (Northern Ireland) (Amendment No. 2) 1996 and shall come into operation on 25th August 1996.
(2) In these Rules an Order referred to by number means the Order so numbered in the Rules of the Supreme Court (Northern Ireland) 1980(2).
Affidavits
2. Order 41 rule 5(1) shall be amended by the addition of the following sub-paragraph—
“(g)Order 116 rule 3(4); rule 10(2); rule 20(4); rule 21(3); rule 30(7) and rule 34(2);”
Proceedings relating to the Prevention of Terrorism (Temporary Provisions) Act 1989(3) and Confiscation and Forfeiture in connection with criminal proceedings
3. Order 116 shall be amended as follows—
(a)by inserting, after Rule 15, the following new rule—
“Prevention of Terrorism (Temporary Provisions) Act 1989 (Enforcement of External Orders) Order 1995(4)
16.—(1) The provisions of this Part of this Order shall, with such modifications as are necessary and subject to the provisions of any Order in Council made under paragraph 30 of Schedule 4, apply to proceedings for the registration and enforcement of external orders.
(2) For the purposes of this rule, an external order is a forfeiture or restraint order made by a court in a country or territory outside the United Kingdom which is enforceable in the United Kingdom by virtue of an Order in Council made under paragraph 30 of Schedule 4.”;
(b)by substituting, for Parts II and III, the new Part II set out in the Schedule hereto.
Rule 3(b)
“SCHEDULERules to be inserted in Order 116
Part IIProceeds of Crime (Northern Ireland) Order 1996(6) and Criminal Justice (International Co-operation) Act 1990(7)
Interpretation
17. In this Part of this Order—
“the 1996 Order” means the Proceeds of Crime (Northern Ireland) Order 1996 and an Article referred to by number means the Article so numbered in the 1996 Order;
expressions used in this Part of this Order which are used in the 1996 Order, have the same meanings in this Part of this Order as in the 1996 Order and, for the purposes of the enforcement in Northern Ireland of orders made under Part VI of the Criminal Justice Act 1988(8), the Drug Trafficking Act 1994(9) and the Proceeds of Crime (Scotland) Act 1995(10), include any extended meaning given by those Acts;
“Master” means Master (Queen’s Bench and Appeals).
Assignment of proceedings
18. The jurisdiction of the High Court under the 1996 Order shall be assigned to the Queen’s Bench Division and, subject to rule 32, shall be exercised by a judge in chambers.
Title and service of proceedings
19.—(1) An originating summons under this Part of this Order shall be entitled in the matter of the defendant, naming him, and in the matter of the 1996 Order, and all subsequent documents in the matter shall be so entitled.
(2) Any originating summons, or other document, required to be served under this Part of this Order may be served out of the jurisdiction with the leave of the Court.
(3) In any application under Article 24 or any related application, where a defendant has absconded, if it appears to the Court that it is impracticable for any reason to serve the summons or other document on the defendant in accordance with the provisions of this Part of this Order, the Court may make an order for substituted service of the summons or other document or may order service to be dispensed with.
(4) An application for an order for substituted service or for an order dispensing with service under paragraph (3) may be made by an affidavit stating the facts on which the application is founded.
(5) Substituted service of a summons or other document, in relation to which an order is made under paragraph (3), is effected by taking such steps as the Court may direct to bring the summons or other document to the notice of the person to be served.
(6) In any application under Article 24 or any related application, where a defendant has died, the summons or other document may be served on the deceased’s personal representatives.
Application for confiscation order and service
20.—(1) An application by the prosecution for a confiscation order under Article 24 shall be made by originating summons.
(2) The application shall be supported by an affidavit giving full particulars of the following matters:—
(a)the grounds for believing that the defendant has died or absconded;
(b)the date or approximate date on which the defendant died or absconded;
(c)where the application is made under Article 24(2), the offence or offences of which the defendant was convicted and the date and place of conviction;
(d)where the application is made under Article 24(4), the proceedings which have been instituted against the defendant (including particulars of the offence or offences and the date and place of institution of those proceedings); and
(e)where the defendant is alleged to have absconded, the steps taken to contact him.
(3) Any statement required from the prosecution under Article 15 shall be exhibited to the affidavit and shall include the following particulars—
(a)the name of the defendant;
(b)the name of the person by whom the statement is given; and
(c)such information known to the prosecution as is relevant to, the determination whether the defendant has benefited from any relevant criminal conduct or drug trafficking, and, as to the assessment of the value of his benefit from the criminal conduct or, as the case may be, from the drug trafficking.
(4) Unless the court otherwise orders, an affidavit under paragraph (2) may contain statements of information and belief, with their sources and grounds.
(5) The application and affidavit in support shall be served not less than seven clear days before the date fixed for the hearing of the application on—
(a)the defendant;
(b)any person who the prosecution reasonably believes is likely to be affected by the making of a confiscation order; and
(c)the receiver, where one has been appointed in the matter.
Application for restraint order or charging order
21.—(1) An application for a restraint order under Article 31 or for a charging order under Article 32 (to either of which may be joined an application for the appointment of a receiver) may be made by the prosecution ex parte by originating summons in Form No. 8 in Appendix A.
(2) An application under paragraph (1) shall be supported by an affidavit, which shall:—
(a)give the grounds for the application; and
(b)to the best of the deponent’s ability, give full particulars of the realisable property in respect of which the order is sought and specify the person or persons holding such property.
(3) Unless the Court otherwise directs, an affidavit under paragraph (2) may contain statements of information or belief with the sources and grounds thereof.
Restraint order or charging order
22.—(1) A restraint order may be made subject to conditions and exceptions, including but not limited to conditions relating to the indemnifying of third parties against expenses incurred in complying with the order, and exceptions relating to living expenses and legal expenses of the defendant or other person, but the applicant shall not be required to give an undertaking to abide by an order as to damages sustained by the defendant or other person as a result of the restraint order.
(2) Unless the Court otherwise directs, a restraint order made ex parte shall have effect until a day which shall be fixed for the hearing inter partes of the application and a charging order shall have effect subject to such conditions as the Court may direct.
(3) Where a restraint order is made the applicant shall serve copies of the order and of the affidavit in support on the defendant and on all other named persons restrained by the order and shall notify all other persons or bodies affected by the order of its terms.
(4) Where a charging order is made the applicant shall, unless the Court otherwise directs, serve copies of the order and of the affidavit in support on the defendant and, where property to which the order relates is held by another person, on that person and shall serve a copy of the order on such of the persons or bodies referred to below as shall be appropriate:—
(a)where the order relates to securities other than funds in court (including securities in court),
(i)in the case of Government funds or stock, on the keeper of the register;
(ii)in the case of stock of any body incorporated within Northern Ireland, on that body, or, on the keeper of the register;
(iii)in the case of stock of any body incorporated outside Northern Ireland or of any country or territory outside the United Kingdom, being stock registered in a register kept at any place within Northern Ireland, on the keeper of the register;
(iv)in the case of units of any unit trust in respect of which a register of the unit holders is kept at any place within Northern Ireland, on the keeper of the register;
(b)where the order relates to a fund in court on the Accountant General at the Court Funds Office, and
(c)where the order relates to an interest under a trust, on such trustees as the Court may direct.
Discharge or variation of restraint or charging order
23.—(1) Any person or body on whom a restrain order or charging order is served or who is notified of such an order or who is affected by such an order may apply by summons to discharge or vary the order.
(2) The summons and any affidavit in support shall be lodged with the Court and served on the prosecution and, where he is not the applicant for discharge or variation, on the defendant, not less than two clear days before the date fixed for the hearing of the summons.
(3) Upon the Court being satisfied that proceedings for the offences have been concluded or that the amount, payment of which is secured by the relevant charging order has been paid into Court, any restraint order or charging order, as the case may be, shall be discharged.
(4) The Court may also discharge a restraint order or a charging order upon receiving notice from the prosecution that it is no longer appropriate for the restraint order or charging order to remain in place.
Further application by the prosecution
24.—(1) Where a restraint order or a charging order has been made the prosecution may apply by summons or, where the case is one of urgency or the giving of notice would cause a reasonable apprehension of dissipation of assets, ex parte:—
(a)to vary such an order;
(b)for a restraint order or a charging order in respect of other realisable property; or
(c)for the appointment of a receiver.
(2) An application under paragraph (1) shall be supported by an affidavit which, where the application is for a restraint order or a charging order, shall to the best of the deponent’s ability give full particulars of, the grounds of the application, and of the realisable property in respect of which the order is sought and specify the person or persons holding such property.
(3) The summons and affidavit in support shall be lodged with the Court and served on the defendant and, where one has been appointed in the matter, on the receiver, not less than two clear days before the date fixed for hearing of the summons.
(4) Rule 22(3) and (4) shall apply to the service of an order varying a restraint order or charging order on persons other than the defendant and to the notification of all other persons or bodies affected thereby.
Realisation of property
25.—(1) An application by the prosecution under Article 34 shall be made by summons and be supported by an affidavit.
(2) The summons and affidavit in support shall be lodged with the Court and served on:—
(a)the defendant;
(b)any person holding an interest in the realisable property to which the application relates; and
(c)the receiver, where one has been appointed in the matter,
not less than seven clear days before the date fixed for hearing of the summons.
(3) The supporting affidavit shall, to the best of the deponent’s ability, give full particulars of the grounds of the application and of the realisable property to which it relates and specify the person or persons holding such property.
(4) A copy of the confiscation order, of any certificate issued by a Court under Article 15(10) and of any charging order made in the matter shall be exhibited to the supporting affidavit.
(5) The Court may, on an application under Article 34—
(a)exercise the power conferred by Article 35 to direct the making of payments by a receiver;
(b)give directions in respect of the property interests to which the application relates; and
(c)make declarations in respect of those interests.
Increase in realisable property
26.—(1) An application for a certificate under Article 21(2) shall be made by summons.
(2) A summons under paragraph (1) shall be served with any supporting affidavit on:—
(a)the prosecution, where it is not the applicant;
(b)the receiver, where one has been appointed in the matter and he is not the applicant; and
(c)the defendant,
not less than seven clear days before the date fixed for hearing of the summons.
Receivers
27.—(1) Subject to the provisions of this Rule, the provisions of Order 30, rules 2 to 8 shall apply where a receiver is appointed in pursuance of a charging order or under Articles 31 or 34.
(2) Where the receiver proposed to be appointed has been appointed receiver in other proceedings under the 1996 Order, it shall not be necessary for an affidavit of fitness to be sworn or for the receiver to give security, unless the Court otherwise orders.
(3) Where a receiver has fully paid the amount payable under the confiscation order and any sums remain in his hands, he shall apply by summons for directions as to the distribution of such sums.
(4) A summons under paragraph (3) shall be served with any evidence in support not less than seven clear days before the date fixed for hearing of the summons on:—
(a)the defendant; and
(b)any other person who held property realised by the receiver.
(5) A receiver may apply for an order to discharge him from his office by making an application, which shall be served, together with any evidence in support, on all persons affected by his appointment not less than seven days before the date fixed for the hearing of the application.
Application for certificate of inadequacy
28.—(1) The defendant or a receiver appointed under Articles 31 or 34 or in pursuance of a charging order may apply by summons for a certificate under Article 22(1).
(2) A summons under paragraph (1) shall be served with any supporting evidence on:—
(a)the prosecution;
(b)the receiver, where one has been appointed in the matter, and he is not the applicant; and
(c)the defendant, where he is not the applicant,
not less than seven clear days before the date fixed for hearing of the summons.
Application for compensation order
29. An application for an order under Article 23 shall be made by summons which shall be served, with any supporting evidence, on the person alleged to be in default (where known) and on the appropriate body mentioned in Article 23(5) not less than seven clear days before the date fixed for hearing of the summons.
Compensation for, discharge and variation of confiscation order
30.—(1) An application under Article 26, 27 or 28 shall be made by summons which, together with any evidence in support, shall be lodged with the Court and served on the prosecution not less than seven clear days before the day fixed for the hearing of the summons.
(2) Notice of an application under Article 26, 27 or 28 shall be served on any receiver appointed in pursuance of a charging order or under Article 31 or 34.
(3) An application made under Article 26 shall be supported by an affidavit giving details of—
(a)the confiscation order made under Article 24(4);
(b)the circumstances in which the defendant ceased to be an absconder; and
(c)the amounts referred to in Article 26(2).
(4) An application for an order under Article 27 shall be supported by an affidavit giving details of—
(a)the confiscation order made under Article 24(4);
(b)the acquittal of the defendant;
(c)the realisable property held by the defendant; and
(d)the loss suffered by the applicant as a result of the confiscation order.
(5) An application for an order under Article 28 shall be supported by an affidavit giving details of—
(a)the confiscation order made under Article 24(4);
(b)the date on which the defendant ceased to be an absconder;
(c)the date on which proceedings against the defendant were instituted and a summary of the steps taken in the proceedings since then; and
(d)any indication given by the prosecution that it does not intend to proceed against the defendant.
(6) Where an application is made for an order under Article 28(3) the affidavit shall also include—
(a)details of the realisable property to which the application relates; and
(b)details of the loss suffered by the applicant as a result of the confiscation order.
(7) Unless the Court otherwise orders an affidavit under paragraphs (3) to (6) may contain statements of information and belief, with the sources and grounds thereof.
Application for order for disclosure of information
31.—(1) An application by the prosecution under Article 54 shall be made by summons, which shall state the nature of the order sought and whether material sought to be disclosed is to be disclosed to a receiver appointed in pursuance of a charging order or under Article 31 or 34 or to a person mentioned in Article 54(8).
(2) An application under paragraph (1) shall be supported by an affidavit which shall state the grounds for believing that the conditions in Article 54(4) and, if appropriate, 54(7) are fulfilled.
(3) The summons and affidavit in support shall be served on the authorised government department in accordance with Order 77, rule 3, not less than seven clear days before the date fixed for hearing of the summons.
Reciprocal enforcement of orders
32. Notwithstanding the provisions of Order 32 rule 11(1)(a), the powers conferred on the High Court by virtue of Article 43 may be exercised by a judge in chambers or the Master.
Application for registration
33. An application for registration of an external confiscation order to which Article 43 applies may be made ex parte.
Evidence in support of application under Article 43
34.—(1) An application for registration of an external confiscation order under Article 43 must be supported by an affidavit—
(i)exhibiting the order or a verified or certified or otherwise duly authenticated copy thereof and, where the order is not in the English language, a translation thereof into English certified by a notary public or authenticated by affidavit; and
(ii)stating—
(a)that the order is in force and is not subject to appeal,
(b)where the person against whom the order was made did not appear in the proceedings, that he received notice thereof in sufficient time to enable him to defend them,
(c)in the case of money, either that at the date of the application the sum payable under the order has not been paid or the amount which remains unpaid, as may be appropriate, or, in the case of other property, the property which has not been recovered, and
(d)to the best of the deponent’s knowledge, particulars of what property the person against whom the order was made holds in Northern Ireland, giving the source of the deponent’s knowledge.
(2) Unless the Court otherwise directs, an affidavit for the purposes of this rule may contain statements of information or belief with the sources and grounds thereof.
Register of orders
35.—(1) There shall be kept in the Central Office under the direction of the Master a register of the orders registered under the 1996 Order.
(2) There shall be included in such register particulars of any variation or setting aside of a registration, of any variation, satisfaction or discharge of a registered order, and of any execution issued on the order.
Notice of registration
36.—(1) Notice of the registration of an order must be served on the person or persons against whom it was obtained by delivering it to him personally or by sending it to him at his usual or last known address or place of business or in such other manner as the court may direct.
(2) Service of such a notice out of the jurisdiction is permissible without leave and Order 11, rules 5, 6 and 8 shall apply in relation to such a notice as they apply in relation to a writ.
Application to vary or set aside registration
37. An application by the person against whom an order was made to vary or set aside the registration of an order must be made to a judge by summons supported by affidavit.
Enforcement of order
38. If an application is made under rule 37, an order shall not, unless the Court otherwise orders, be enforced until after such application is determined.
Variation, satisfaction and discharge of registered order
39. Upon the Court being notified by the applicant for registration that an order which has been registered has been varied, satisfied or discharged, particulars of the variation, satisfaction or discharge (including where appropriate particulars of the amount received in satisfaction of the order), as the case may be, shall be entered in the register.
Rules to have effect subject to Orders in Council
40. Rules 17 to 39 shall have effect subject to the provisions of any Order in Council made under Article 42.
Criminal Justice (International Co-operation) Act 1990
41.—(1) The provisions of this Part of this Order shall, with such modifications as are necessary and subject to the provisions of any Order in Council made under Section 9 of the Criminal Justice (International Co-operation) Act 1990, apply to proceedings for the registration and enforcement of external forfeiture orders as they apply to such proceedings in relation to external confiscation orders.
(2) For the purposes of this rule, an external forfeiture order is an order made by a court in a country or territory outside the United Kingdom which is enforceable in the United Kingdom by virtue of any such Order in Council.”
Transitional provision and saving
4.—(1) Rule 3(b) shall not apply to any proceedings to which the Proceeds of Crime (Northern Ireland) Order 1996(5) does not apply.
(2) Part II of Order 116 shall continue to apply to such proceedings as if rule 3(b) had not been made.
Brian Hutton
R. D. Carswell
J. M. Nicholson
Anthony Campbell
Hugh P. Kennedy
Patrick Coghlin
Tony Caher
Dated 27th June 1996
I concur,
Mackay of Clashfern, C.
Dated 10th July 1996
Explanatory Note
(This note is not part of the Rules.)
These Rules amend the Rules of the Supreme Court (Northern Ireland) 1980 so as to—
(a)insert a new Rule 16 in Order 116 to take account of the Prevention of Terrorism (Temporary Provisions) Act 1989 (Enforcement of External Orders) Order 1995, which Order makes provision for the purpose of enabling the enforcement in the United Kingdom of certain types of external forfeiture or restraint orders made by a court in a designated country or territory;
(b)substitute a new Part II of Order 116 to take account of the lapsing of the confiscation provisions in the Northern Ireland (Emergency Provisions) Act 1991 and the replacement of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (as amended) by the Proceeds of Crime (Northern Ireland) Order 1996. The new Part II provides for the procedure to be followed in applications to the High Court under the 1996 Order. The new Part II also takes account of any Order in Council made under section 9 of the Criminal Justice (International Co-operation) Act 1990;
(c)make other minor amendments to Order 41.
(1)
1978 c. 23
(2)
S.R. 1980 No. 346; the relevant amending instruments are S.R. 1989 No. 288, S.R. 1991 No. 334, S.R. 1992 No. 204, S.R. 1992 No. 399 and S.R. 1995 No. 2
(3)
1989 c. 4
(4)
S.I. 1995 No. 760
(5)
S.I. 1996/1299 (N.I. 9)
(6)
S.I. 1996 No. 1299 (N.I. 9)
(7)
1990 c. 5
(8)
1988 c. 33
(9)
1994 c. 37
(10)
1995 c. 43
