Legislation – Economic Crime and Corporate Transparency Act 2023
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SCHEDULE 8Cryptoassets: confiscation orders
PART 1England and Wales
Introductory
1
Part 2 of the Proceeds of Crime Act 2002 (confiscation: England and Wales) is amended as follows.
Seizure of property
2
In section 47B (conditions for exercise of seizure powers)—
(a)
in subsection (2), omit paragraph (b);
(b)
in subsection (3), omit paragraph (b).
3
(1)
Section 47C (power to seize property) is amended as follows.
(2)
In subsection (2), after “not” insert “under subsection (1)”
.
(3)
“(5A)
On being satisfied as mentioned in section 47B(1) an appropriate officer may seize any free property if the officer has reasonable grounds for suspecting that it is a cryptoasset-related item.
(5B)
A “cryptoasset-related item” is an item of property that is, or that contains or gives access to information that is, likely to assist in the seizure under subsection (1) of any cryptoasset.
(5C)
The circumstances in which a cryptoasset is “seized” for the purposes of subsection (1) include circumstances in which it is transferred into a crypto wallet controlled by the appropriate officer.
(5D)
If an appropriate officer is lawfully on any premises, the officer may, for the purpose of—
(a)
determining whether any property is a cryptoasset-related item, or
(b)
enabling or facilitating the seizure under subsection (1) of any cryptoasset,
require any information which is stored in any electronic form and accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible, or from which it can readily be produced in a visible and legible form.
(5E)
But subsection (5D) does not authorise an appropriate officer to require a person to produce information which the person would be entitled to refuse to provide on grounds of legal professional privilege in proceedings in the High Court.
(5F)
Where an appropriate officer has seized a cryptoasset-related item under subsection (5A), they may use any information obtained from it for the purpose of—
(a)
identifying or gaining access to a crypto wallet, and
(b)
by doing so, enabling or facilitating the seizure under subsection (1) of any cryptoassets.”
4
In section 47R (release of property), in subsection (3)(b), at the end insert “or (5A)”
.
Detention and release of property
5
“(5)
Exempt property seized under section 47C(5A) may be detained under subsections (2) and (3) only with the approval of a senior officer.
(6)
In subsection (5)—
“exempt property” has the meaning given in section 47C(4) (reading references there to the defendant as references to the person by whom the property is held);
“senior officer” has the meaning given in section 47G(3) (and for this purpose, the powers under subsections (2) and (3) to detain property are to be treated as exercised by the appropriate officer who seized the property).”
6
“(4)
Exempt property seized under section 47C(5A) may be detained under subsections (2) and (3) only with the approval of a senior officer.
(5)
In subsection (4)—
“exempt property” has the meaning given in section 47C(4) (reading references there to the defendant as references to the person by whom the property is held);
“senior officer” has the meaning given in section 47G(3) (and for this purpose, the powers under subsections (2) and (3) to detain property are to be treated as exercised by the appropriate officer who seized the property).”
7
(1)
Section 47M (further detention in other cases) is amended as follows.
(2)
In subsection (2)(b), omit “(within the meaning of section 47C(4))”.
(3)
“(2A)
A magistrates’ court may by order extend the period for which the property may be detained under section 47J if satisfied that—
(a)
any of the conditions in section 47B is met (reading references in that section to the officer as references to the court),
(b)
the property is free property, and
(c)
there are reasonable grounds for suspecting that the property is a cryptoasset-related item.
(2B)
An order under subsection (2A) may not be made in respect of exempt property unless the court is satisfied that the person applying for the order is working diligently and expeditiously—
(a)
to determine whether the property is a cryptoasset-related item, or
(b)
if it has already been determined to be such an item, to seize any related cryptoassets under section 47C(1).
(2C)
An order under subsection (2A) may not extend the period for which the property may be detained beyond the period of—
(a)
six months beginning with the date of the order, or
(b)
in the case of exempt property, 14 days beginning with that date.
This does not prevent the period from being further extended by another order under this section.
(2D)
The period of 14 days referred to in subsection (2C)(b) is to be calculated in accordance with section 47H(7) (reading the reference there to 48 hours as a reference to 14 days).”
(4)
“—
“exempt property” has the meaning given in section 47C(4) (reading references there to the defendant as references to the person by whom the property is held);”.
8
“(6)
If a cryptoasset-related item which has been released is not claimed within the period of a year beginning with the date on which it was released, the appropriate officer may—
(a)
retain the item and deal with it as they see fit,
(b)
dispose of the item, or
(c)
destroy the item.
(7)
The powers in subsection (6) may be exercised only—
(a)
where the appropriate officer has taken reasonable steps to notify—
(i)
the person from whom the item was seized, and
(ii)
any other persons who the appropriate officer has reasonable grounds to believe have an interest in the item,
that the item has been released, and
(b)
with the approval of a senior officer.
(8)
“Senior officer” in subsection (7)(b) has the meaning given in section 47G(3).
(9)
Any proceeds of a disposal of the item are to be paid into the Consolidated Fund.”
Property held by persons subject to confiscation orders: destruction, realisation etc
9
In section 10A (determination of extent of defendant’s interest in property), in subsection (3)(a), after “realisation” insert “or destruction”
.
10
(1)
Section 51 (powers of enforcement receiver) is amended as follows.
(2)
“(e)
so far as the property consists of cryptoassets, power to destroy the property.”
(3)
In subsection (8)(a), for “or (c)” substitute “, (c) or (e)”
.
(4)
“(9A)
The court may confer the power mentioned in subsection (2)(e) only where—
(a)
it is not reasonably practicable to realise the cryptoassets in question, or
(b)
there are reasonable grounds to believe that the realisation of the cryptoassets would be contrary to the public interest, having regard in particular to how likely it is that the entry of the cryptoassets into general circulation would facilitate criminal conduct by any person.
(9B)
An order conferring that power—
(a)
must set out the court’s assessment of the market value of the cryptoassets to which it relates;
(b)
may confer power to destroy the cryptoassets only to the extent that their market value, as set out in the order, is less than or equal to the amount remaining to be paid under the confiscation order.
(9C)
If the receiver destroys any cryptoassets in the exercise of that power, the defendant is to be treated as having paid, towards satisfaction of the confiscation order, an amount equal to the market value, as set out in the order, of the cryptoassets which have been destroyed.”
11
(1)
Section 67 (seized money) is amended as follows.
(2)
In subsection (1)(b), for “bank or a building society” substitute “relevant financial institution”
.
(3)
In subsection (5A)—
(a)
for “a bank or building society” substitute “a relevant financial institution”
;
(b)
for “the bank or building society” substitute “the relevant financial institution”
.
(4)
In subsection (6), for “bank or building society” substitute “relevant financial institution”
.
(5)
In subsection (7A), for “bank or building society” substitute “relevant financial institution”
.
(6)
In subsection (8)—
(a)
in paragraph (a) of the definition of “appropriate person”, for the words from “a bank” to the end substitute “a relevant financial institution, the relevant financial institution”
;
(b)
““electronic money institution” has the same meaning as in the Electronic Money Regulations 2011 (S.I. 2011/99) (see regulation 2 of those Regulations);”;
““payment institution” means an authorised payment institution or a small payment institution (each as defined in regulation 2 of the Payment Services Regulations 2017 (S.I. 2017/752));”;
““relevant financial institution” means a bank, a building society, an electronic money institution or a payment institution;”.
(7)
For the heading substitute “Money”
.
12
“67ZACryptoassets
(1)
This section applies to cryptoassets which—
(a)
are held by a person, and
(b)
are held in a crypto wallet administered by a UK-connected cryptoasset service provider,
but only so far as the cryptoassets are free property.
(2)
Subsection (3) applies if—
(a)
a confiscation order is made against a person holding cryptoassets to which this section applies, and
(b)
a receiver has not been appointed under section 50 in relation to the cryptoassets.
(3)
A magistrates’ court may order the UK-connected cryptoasset service provider which administers the crypto wallet in which the cryptoassets are held—
(a)
to realise the cryptoassets, or a portion of the cryptoassets having a specified value,
(b)
to pay the proceeds of that realisation to the designated officer for the court on account of, and up to a maximum of, the amount payable under the confiscation order, and
(c)
to the extent that the proceeds of the realisation exceed the amount payable under the confiscation order, to pay the excess to an appropriate officer identified in the order.
“Appropriate officer” has the same meaning as in section 41A.
(4)
A person applying for an order under subsection (3) must give notice of the application to the UK-connected cryptoasset service provider.
(5)
Where the crypto wallet in which the cryptoassets are held is administered on behalf of someone other than the person against whom the confiscation order is made, a magistrates’ court—
(a)
may make an order under subsection (3) only if the extent of the person’s interest in the money has been determined under section 10A, and
(b)
must have regard to that determination in deciding what is the appropriate order to make.
(6)
If a UK-connected cryptoasset service provider fails to comply with an order under subsection (3)—
(a)
the magistrates’ court may order it to pay an amount not exceeding £5,000, and
(b)
for the purposes of the Magistrates’ Courts Act 1980 the sum is to be treated as adjudged to be paid by a conviction of the court.
(7)
In order to take account of changes in the value of money the Secretary of State may by order substitute another sum for the sum for the time being specified in subsection (6)(a).
(8)
Where a UK-connected cryptoasset service provider—
(a)
is required by an order under subsection (3) to realise a portion of cryptoassets having a specified value, but
(b)
on realising cryptoassets under the order, obtains proceeds of an amount which differs from that value,
it does not fail to comply with the order solely because of that difference in value, provided that it took reasonable steps to obtain proceeds equal to the value specified.
67ZBMeaning of “UK-connected cryptoasset service provider”
(1)
“UK-connected cryptoasset service provider” in section 67ZA means a cryptoasset service provider which—
(a)
is acting in the course of business carried on by it in the United Kingdom,
(b)
has terms and conditions with the persons to whom it provides services which provide for a legal dispute to be litigated in the courts of a part of the United Kingdom,
(c)
holds in the United Kingdom any data relating to the persons to whom it provides services, or
(d)
meets the condition in subsection (2).
(2)
The condition in this subsection is that—
(a)
the cryptoasset service provider has its registered office or, if it does not have one, its head office in the United Kingdom, and
(b)
the day-to-day management of the provider’s business is the responsibility of that office or another establishment maintained by it in the United Kingdom.
(3)
“Cryptoasset service provider” in subsections (1) and (2) includes a cryptoasset exchange provider and a custodian wallet provider; and for this purpose—
“cryptoasset exchange provider” means a firm or sole practitioner who by way of business provides one or more of the following services, including where the firm or sole practitioner does so as creator or issuer of any of the cryptoassets involved—
(a)
exchanging, or arranging or making arrangements with a view to the exchange of, cryptoassets for money or money for cryptoassets;
(b)
exchanging, or arranging or making arrangements with a view to the exchange of, one cryptoasset for another;
(c)
operating a machine which utilises automated processes to exchange cryptoassets for money or money for cryptoassets;
“custodian wallet provider” means a firm or sole practitioner who by way of business provides services to safeguard, or to safeguard and administer—
(a)
cryptoassets on behalf of its customers, or
(b)
private cryptographic keys on behalf of its customers in order to hold, store and transfer cryptoassets.
(4)
In the definition of “cryptoasset exchange provider” in subsection (3), “cryptoasset” includes a right to, or interest in, a cryptoasset.
(5)
The Secretary of State may by regulations amend the definitions in subsection (3) (including by amending subsection (4)).”
13
“67AADestruction of seized cryptoassets
(1)
This section applies to cryptoassets which are held by a person and which have been seized by an appropriate officer under a relevant seizure power.
(2)
A magistrates’ court may by order authorise an appropriate officer to destroy the cryptoassets if—
(a)
a confiscation order is made against the person by whom the cryptoassets are held,
(b)
a receiver has not been appointed under section 50 in relation to the cryptoassets, and
(c)
either—
(i)
it is not reasonably practicable to realise the cryptoassets, or
(ii)
there are reasonable grounds to believe that the realisation of the cryptoassets would be contrary to the public interest, having regard in particular to how likely it is that the entry of the cryptoassets into general circulation would facilitate criminal conduct by any person.
(3)
An order under this section—
(a)
must set out the court’s assessment of the market value of the cryptoassets to which it relates;
(b)
may authorise the destruction of cryptoassets only to the extent that their market value, as set out in the order, is less than or equal to the amount remaining to be paid under the confiscation order.
(4)
Before making an order under this section, the court must give persons who hold interests in the cryptoassets a reasonable opportunity to make representations to it.
(5)
If cryptoassets held by a person are destroyed following an order under this section, the person is to be treated as having paid, towards satisfaction of the confiscation order, an amount equal to the market value, as set out in the order, of the cryptoassets which have been destroyed.
(6)
In this section “appropriate officer” and “relevant seizure power” have the same meaning as in section 41A.”
14
(1)
Section 67C (sections 67A and 67B: appeals) is amended as follows.
(2)
In subsection (1), for “67A” substitute “67ZA(3), 67A(3) or 67AA(2)”
.
(3)
In subsection (2), for “67A” substitute “67ZA(3), 67A(3) or 67AA(2)”
.
(4)
In subsection (3), for “67A(2)(a)” substitute “67ZA(2)(a), 67A(3)(a) or 67AA(2)(a) (as applicable)”
.
(5)
In the heading, for “67A and” substitute “67ZA to”
.
15
In section 67D (proceeds of realisation), in subsection (1)(b), after “section” insert “67ZA or”
.
16
For the italic heading before section 67, substitute “Enforcement: money, cryptoassets and personal property”
.
17
“(2A)
Subsection (2)(a) does not apply to—
(a)
the power conferred on a court by paragraph (e) of section 51(2) (which enables the court to give a receiver the power to destroy cryptoassets),
(b)
a power conferred on a receiver by virtue of that paragraph, or
(c)
the power conferred on a magistrates’ court by section 67AA (power to order destruction of cryptoassets).”
Interpretation and miscellaneous provision
18
“84ACryptoassets etc
(1)
“Cryptoasset” means a cryptographically secured digital representation of value or contractual rights that uses a form of distributed ledger technology and can be transferred, stored or traded electronically.
(2)
“Crypto wallet” means—
(a)
software,
(b)
hardware,
(c)
a physical item, or
(d)
any combination of the things mentioned in paragraphs (a) to (c),
which is used to store the cryptographic private key that allows cryptoassets to be accessed.
(3)
“Cryptoasset-related item” has the meaning given in section 47C(5B).
(4)
The circumstances in which a cryptoasset is taken to be “destroyed” include circumstances where it is—
(a)
disposed of,
(b)
transferred, or
(c)
otherwise dealt with,
in such a way as to ensure, or to make it virtually certain, that it will not be the subject of any further transactions or be dealt with again in any other way.
(5)
The Secretary of State may by regulations amend the definitions of “cryptoasset” and “crypto wallet” in this section.”
PART 2Scotland
Introductory
19
Part 3 of the Proceeds of Crime Act 2002 (confiscation: Scotland) is amended as follows.
Seizure of property
20
In section 127B (conditions for exercise of seizure powers)—
(a)
in subsection (2), omit paragraph (b);
(b)
in subsection (3), omit paragraph (b).
21
(1)
Section 127C (power to seize property) is amended as follows.
(2)
In subsection (2), after “not” insert “under subsection (1)”
.
(3)
“(5A)
On being satisfied as mentioned in section 127B(1) an appropriate officer may seize any free property if the officer has reasonable grounds for suspecting that it is a cryptoasset-related item.
(5B)
A “cryptoasset-related item” is an item of property that is, or that contains or gives access to information that is, likely to assist in the seizure under subsection (1) of any cryptoasset.
(5C)
The circumstances in which a cryptoasset is “seized” for the purposes of subsection (1) include circumstances in which it is transferred into a crypto wallet controlled by the appropriate officer.
(5D)
If an appropriate officer is lawfully on any premises, the officer may, for the purpose of—
(a)
determining whether any property is a cryptoasset-related item, or
(b)
enabling or facilitating the seizure under subsection (1) of any cryptoasset,
require any information which is stored in any electronic form and accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible, or from which it can readily be produced in a visible and legible form.
(5E)
But subsection (5D) does not authorise an appropriate officer to require a person to produce any items subject to legal privilege (as defined in section 412).
(5F)
Where an appropriate officer has seized a cryptoasset-related item under subsection (5A), they may use any information obtained from it for the purpose of—
(a)
identifying or gaining access to a crypto wallet, and
(b)
by doing so, enabling or facilitating the seizure under subsection (1) of any cryptoassets.”
22
In section 127Q (release of property), in subsection (3)(b), at the end insert “or (5A)”
.
Detention and release of property
23
“(5)
Exempt property seized under section 127C(5A) may be detained under subsections (2) and (3) only with the approval of a senior officer.
(6)
In subsection (5)—
“exempt property” has the meaning given in section 127C(4) (reading references there to the accused as references to the person by whom the property is held);
“senior officer” has the meaning given in section 127G(3) (and for this purpose, the powers under subsections (2) and (3) to detain property are to be treated as exercised by the appropriate officer who seized the property).”
24
“(4)
Exempt property seized under section 127C(5A) may be detained under subsections (2) and (3) only with the approval of a senior officer.
(5)
In subsection (4)—
“exempt property” has the meaning given in section 127C(4) (reading references there to the accused as references to the person by whom the property is held);
“senior officer” has the meaning given in section 127G(3) (and for this purpose, the powers under subsections (2) and (3) to detain property are to be treated as exercised by the appropriate officer who seized the property).”
25
(1)
Section 127M (further detention in other cases) is amended as follows.
(2)
In subsection (2)(b), omit “(within the meaning of section 127C(4))”.
(3)
“(2A)
The sheriff may by order extend the period for which the property may be detained under section 127J if satisfied that—
(a)
any of the conditions in section 127B is met (reading references in that section to the officer as references to the sheriff),
(b)
the property is free property, and
(c)
there are reasonable grounds for suspecting that the property is a cryptoasset-related item.
(2B)
An order under subsection (2A) may not be made in respect of exempt property unless the sheriff is satisfied that the person applying for the order is working diligently and expeditiously—
(a)
to determine whether the property is a cryptoasset-related item, or
(b)
if it has already been determined to be such an item, to seize any related cryptoassets under section 127C(1).
(2C)
An order under subsection (2A) may not extend the period for which the property may be detained beyond the period of—
(a)
six months beginning with the date of the order, or
(b)
in the case of exempt property, 14 days beginning with that date.
This does not prevent the period from being further extended by another order under this section.
(2D)
The period of 14 days referred to in subsection (2C)(b) is to be calculated in accordance with section 127H(7) (reading the reference there to 48 hours as a reference to 14 days).”
(4)
“—
“exempt property” has the meaning given in section 127C(4) (reading references there to the accused as references to the person by whom the property is held);”.
26
“(6)
If a cryptoasset-related item which has been released is not claimed within the period of a year beginning with the date on which it was released, the appropriate officer may—
(a)
retain the item and deal with it as they see fit,
(b)
dispose of the item, or
(c)
destroy the item.
(7)
The powers in subsection (6) may be exercised only—
(a)
where the appropriate officer has taken reasonable steps to notify—
(i)
the person from whom the item was seized, and
(ii)
any other persons who the appropriate officer has reasonable grounds to believe have an interest in the item,
that the item has been released, and
(b)
with the approval of a senior officer.
(8)
“Senior officer” in subsection (7)(b) has the meaning given in section 127G(3).
(9)
Any proceeds of a disposal of the item are to be paid into the Scottish Consolidated Fund.”
Property held by persons subject to confiscation orders: destruction, realisation etc
27
(1)
Section 128 (enforcement administrators) is amended as follows.
(2)
“(d)
so far as the property consists of cryptoassets, power to destroy the property.”
(3)
In subsection (11)(a), for “or (c)” substitute “, (c) or (d)”
.
(4)
“(13A)
The court may confer the power mentioned in subsection (6)(d) only where—
(a)
it is not reasonably practicable to realise the cryptoassets in question, or
(b)
there are reasonable grounds to believe that the realisation of the cryptoassets would be contrary to the public interest, having regard in particular to how likely it is that the entry of the cryptoassets into general circulation would facilitate criminal conduct by any person.
(13B)
An order conferring that power—
(a)
must set out the court’s assessment of the market value of the cryptoassets to which it relates;
(b)
may confer power to destroy the cryptoassets only to the extent that their market value, as set out in the order, is less than or equal to the amount remaining to be paid under the confiscation order.
(13C)
If the administrator destroys any cryptoassets in the exercise of that power, the accused is to be treated as having paid, towards satisfaction of the confiscation order, an amount equal to the market value, as set out in the order, of the cryptoassets which have been destroyed.”
28
(1)
Section 131ZA (seized money) is amended as follows.
(2)
In subsection (1)(b), for “bank or building society” substitute “relevant financial institution”
.
(3)
In subsection (7), for “bank or building society” substitute “relevant financial institution”
.
(4)
In subsection (9)—
(a)
in paragraph (a) of the definition of “appropriate person”, for the words from “a bank” to the end substitute “a relevant financial institution, the relevant financial institution”
;
(b)
““electronic money institution” has the same meaning as in the Electronic Money Regulations 2011 (S.I. 2011/99) (see regulation 2 of those Regulations);”;
““payment institution” means an authorised payment institution or a small payment institution (each as defined in regulation 2 of the Payment Services Regulations 2017 (S.I. 2017/752));”;
““relevant financial institution” means a bank, a building society, an electronic money institution or a payment institution;”.
(5)
For the heading substitute “Money”
.
29
“131ZBCryptoassets
(1)
This section applies to cryptoassets which—
(a)
are held by a person, and
(b)
are held in a crypto wallet administered by a UK-connected cryptoasset service provider,
but only so far as the cryptoassets are free property.
(2)
Subsection (3) applies if—
(a)
a confiscation order is made against a person holding cryptoassets to which this section applies, and
(b)
an administrator has not been appointed under section 128 in relation to the cryptoassets.
(3)
The sheriff may order the UK-connected cryptoasset service provider which administers the crypto wallet in which the cryptoassets are held—
(a)
to realise the cryptoassets, or a portion of the cryptoassets having a specified value,
(b)
to pay the proceeds of that realisation to the appropriate clerk of court on account of, and up to a maximum of, the amount payable under the confiscation order, and
(c)
to the extent that the proceeds of the realisation exceed the amount payable under the confiscation order, to pay the excess to an appropriate officer identified in the order.
(4)
In subsection (3)—
“appropriate clerk of court” means the sheriff clerk of the sheriff court responsible for enforcing the confiscation order under section 211 of the Procedure Act as applied by section 118(1);
“appropriate officer” has the same meaning as in section 120A.
(5)
An order under subsection (3) may be made—
(a)
on the application of the prosecutor, or
(b)
by the sheriff of the sheriff’s own accord.
(6)
Where a UK-connected cryptoasset service provider—
(a)
is required by an order under subsection (3) to realise a portion of cryptoassets having a specified value, but
(b)
on realising cryptoassets under the order, obtains proceeds of an amount which differs from that value,
it does not fail to comply with the order solely because of that difference in value, provided that it took reasonable steps to obtain proceeds equal to the value specified.
131ZCMeaning of “UK-connected cryptoasset service provider”
(1)
“UK-connected cryptoasset service provider” in section 131ZB means a cryptoasset service provider which—
(a)
is acting in the course of business carried on by it in the United Kingdom,
(b)
has terms and conditions with the persons to whom it provides services which provide for a legal dispute to be litigated in the courts of a part of the United Kingdom,
(c)
holds in the United Kingdom any data relating to the persons to whom it provides services, or
(d)
meets the condition in subsection (2).
(2)
The condition in this subsection is that—
(a)
the cryptoasset service provider has its registered office or, if it does not have one, its head office in the United Kingdom, and
(b)
the day-to-day management of the provider’s business is the responsibility of that office or another establishment maintained by it in the United Kingdom.
(3)
“Cryptoasset service provider” in subsections (1) and (2) includes a cryptoasset exchange provider and a custodian wallet provider; and for this purpose—
“cryptoasset exchange provider” means a firm or sole practitioner who by way of business provides one or more of the following services, including where the firm or sole practitioner does so as creator or issuer of any of the cryptoassets involved—
(a)
exchanging, or arranging or making arrangements with a view to the exchange of, cryptoassets for money or money for cryptoassets;
(b)
exchanging, or arranging or making arrangements with a view to the exchange of, one cryptoasset for another;
(c)
operating a machine which utilises automated processes to exchange cryptoassets for money or money for cryptoassets;
“custodian wallet provider” means a firm or sole practitioner who by way of business provides services to safeguard, or to safeguard and administer—
(a)
cryptoassets on behalf of its customers, or
(b)
private cryptographic keys on behalf of its customers in order to hold, store and transfer cryptoassets.
(4)
In the definition of “cryptoasset exchange provider” in subsection (3), “cryptoasset” includes a right to, or interest in, a cryptoasset.
(5)
The Secretary of State may by regulations amend the definitions in subsection (3) (including by amending subsection (4)).
(6)
The Secretary of State must consult the Scottish Ministers before making regulations under subsection (5).”
30
“131AADestruction of seized cryptoassets
(1)
This section applies to cryptoassets which are held by a person and which have been seized by an appropriate officer under a relevant seizure power.
(2)
The sheriff may by order authorise an appropriate officer to destroy the cryptoassets if—
(a)
a confiscation order is made against the person by whom the cryptoassets are held,
(b)
an administrator has not been appointed under section 128 in relation to the cryptoassets, and
(c)
either—
(i)
it is not reasonably practicable to realise the cryptoassets, or
(ii)
there are reasonable grounds to believe that the realisation of the cryptoassets would be contrary to the public interest, having regard in particular to how likely it is that the entry of the cryptoassets into general circulation would facilitate criminal conduct by any person.
(3)
An order under this section may be made—
(a)
on the application of the prosecutor, or
(b)
by the sheriff of the sheriff’s own accord.
(4)
An order under this section—
(a)
must set out the sheriff’s assessment of the market value of the cryptoassets to which it relates;
(b)
may authorise the destruction of cryptoassets only to the extent that their market value, as set out in the order, is less than or equal to the amount remaining to be paid under the confiscation order.
(5)
Before making an order under this section, the sheriff must give persons who hold interests in the cryptoassets a reasonable opportunity to make representations to it.
(6)
If cryptoassets held by a person are destroyed following an order under this section, the person is to be treated as having paid, towards satisfaction of the confiscation order, an amount equal to the market value, as set out in the order, of the cryptoassets which have been destroyed.
(7)
In this section “appropriate officer” and “relevant seizure power” have the same meaning as in section 120A.”
31
(1)
Section 131C (sections 131A and 131B: appeals) is amended as follows.
(2)
In subsection (1), for “131A” substitute “131A(3)”
.
(3)
“(1A)
If a sheriff decides not to make an order under section 131ZB(3) or 131AA(2), the prosecutor may appeal to the Court of Session.”
(4)
In subsection (2), for “131A” substitute “131ZB(3), 131A(3) or 131AA(2)”
.
(5)
In subsection (3), for “131A(2)(a)” substitute “131ZB(2)(a), 131A(2)(a) or 131AA(2)(a) (as applicable)”
.
(6)
In the heading, for “131A and” substitute “131ZB to”
.
32
In section 131D (proceeds of realisation), in subsection (1)(b), after “section” insert “131ZB or”
.
33
For the italic heading before section 131ZA, substitute “Enforcement: money, cryptoassets and personal property”
.
34
Omit the italic heading before section 131A.
35
“(2A)
Subsection (2)(a) does not apply to—
(a)
the power conferred on a court by paragraph (d) of section 128(6) (which enables the court to give an administrator the power to destroy cryptoassets),
(b)
a power conferred on an administrator by virtue of that paragraph, or
(c)
the power conferred on the sheriff by section 131AA (power to order destruction of cryptoassets).”
Interpretation and miscellaneous provision
36
“150ACryptoassets etc
(1)
“Cryptoasset” means a cryptographically secured digital representation of value or contractual rights that uses a form of distributed ledger technology and can be transferred, stored or traded electronically.
(2)
“Crypto wallet” means—
(a)
software,
(b)
hardware,
(c)
a physical item, or
(d)
any combination of the things mentioned in paragraphs (a) to (c),
which is used to store the cryptographic private key that allows cryptoassets to be accessed.
(3)
“Cryptoasset-related item” has the meaning given in section 127C(5B).
(4)
The circumstances in which a cryptoasset is taken to be “destroyed” include circumstances where it is—
(a)
disposed of,
(b)
transferred, or
(c)
otherwise dealt with,
in such a way as to ensure, or to make it virtually certain, that it will not be the subject of any further transactions or be dealt with again in any other way.
(5)
The Secretary of State may by regulations amend the definitions of “cryptoasset” and “crypto wallet” in this section.
(6)
The Secretary of State must consult the Scottish Ministers before making regulations under subsection (5).”
PART 3Northern Ireland
Introductory
37
Part 4 of the Proceeds of Crime Act 2002 (confiscation: Northern Ireland) is amended as follows.
Seizure of property
38
In section 195B (conditions for exercise of seizure powers)—
(a)
in subsection (2), omit paragraph (b);
(b)
in subsection (3), omit paragraph (b).
39
(1)
Section 195C (power to seize property) is amended as follows.
(2)
In subsection (2), after “not” insert “under subsection (1)”
.
(3)
“(5A)
On being satisfied as mentioned in section 195B(1) an appropriate officer may seize any free property if the officer has reasonable grounds for suspecting that it is a cryptoasset-related item.
(5B)
A “cryptoasset-related item” is an item of property that is, or that contains or gives access to information that is, likely to assist in the seizure under subsection (1) of any cryptoasset.
(5C)
The circumstances in which a cryptoasset is “seized” for the purposes of subsection (1) include circumstances in which it is transferred into a crypto wallet controlled by the appropriate officer.
(5D)
If an appropriate officer is lawfully on any premises, the officer may, for the purpose of—
(a)
determining whether any property is a cryptoasset-related item, or
(b)
enabling or facilitating the seizure under subsection (1) of any cryptoasset,
require any information which is stored in any electronic form and accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible, or from which it can readily be produced in a visible and legible form.
(5E)
But subsection (5D) does not authorise an appropriate officer to require a person to produce information which the person would be entitled to refuse to provide on grounds of legal professional privilege in proceedings in the High Court.
(5F)
Where an appropriate officer has seized a cryptoasset-related item under subsection (5A), they may use any information obtained from it for the purpose of—
(a)
identifying or gaining access to a crypto wallet, and
(b)
by doing so, enabling or facilitating the seizure under subsection (1) of any cryptoassets.”
40
In section 195R (release of property), in subsection (3)(b), at the end insert “or (5A)”
.
Detention and release of property
41
“(5)
Exempt property seized under section 195C(5A) may be detained under subsections (2) and (3) only with the approval of a senior officer.
(6)
In subsection (5)—
“exempt property” has the meaning given in section 195C(4) (reading references there to the defendant as references to the person by whom the property is held);
“senior officer” has the meaning given in section 195G(3) (and for this purpose, the powers under subsections (2) and (3) to detain property are to be treated as exercised by the appropriate officer who seized the property).”
42
“(4)
Exempt property seized under section 195C(5A) may be detained under subsections (2) and (3) only with the approval of a senior officer.
(5)
In subsection (4)—
“exempt property” has the meaning given in section 195C(4) (reading references there to the defendant as references to the person by whom the property is held);
“senior officer” has the meaning given in section 195G(3) (and for this purpose, the powers under subsections (2) and (3) to detain property are to be treated as exercised by the appropriate officer who seized the property).”
43
(1)
Section 195M (further detention in other cases) is amended as follows.
(2)
In subsection (2)(b), omit “(within the meaning of section 195C(4))”.
(3)
“(2A)
A magistrates’ court may by order extend the period for which the property may be detained under section 195J if satisfied that—
(a)
any of the conditions in section 195B is met (reading references in that section to the officer as references to the court),
(b)
the property is free property, and
(c)
there are reasonable grounds for suspecting that the property is a cryptoasset-related item.
(2B)
An order under subsection (2A) may not be made in respect of exempt property unless the court is satisfied that the person applying for the order is working diligently and expeditiously—
(a)
to determine whether the property is a cryptoasset-related item, or
(b)
if it has already been determined to be such an item, to seize any related cryptoassets under section 195C(1).
(2C)
An order under subsection (2A) may not extend the period for which the property may be detained beyond the period of—
(a)
six months beginning with the date of the order, or
(b)
in the case of exempt property, 14 days beginning with that date.
This does not prevent the period from being further extended by another order under this section.
(2D)
The period of 14 days referred to in subsection (2C)(b) is to be calculated in accordance with section 195H(7) (reading the reference there to 48 hours as a reference to 14 days).”
(4)
“—
“exempt property” has the meaning given in section 195C(4) (reading references there to the defendant as references to the person by whom the property is held);”.
44
“(6)
If a cryptoasset-related item which has been released is not claimed within the period of a year beginning with the date on which it was released, the appropriate officer may—
(a)
retain the item and deal with it as they see fit,
(b)
dispose of the item, or
(c)
destroy the item.
(7)
The powers in subsection (6) may be exercised only—
(a)
where the appropriate officer has taken reasonable steps to notify—
(i)
the person from whom the item was seized, and
(ii)
any other persons who the appropriate officer has reasonable grounds to believe have an interest in the item,
that the item has been released, and
(b)
with the approval of a senior officer.
(8)
“Senior officer” in subsection (7)(b) has the meaning given in section 195G(3).
(9)
Any proceeds of a disposal of the item are to be paid into the Consolidated Fund.”
Property held by persons subject to confiscation orders: destruction, realisation etc
45
In section 160A (determination of extent of defendant’s interest in property), in subsection (3)(a), after “realisation” insert “or destruction”
.
46
(1)
Section 199 (powers of enforcement receiver) is amended as follows.
(2)
“(e)
so far as the property consists of cryptoassets, power to destroy the property.”
(3)
In subsection (8)(a), for “or (c)” substitute “, (c) or (e)”
.
(4)
“(9A)
The court may confer the power mentioned in subsection (2)(e) only where—
(a)
it is not reasonably practicable to realise the cryptoassets in question, or
(b)
there are reasonable grounds to believe that the realisation of the cryptoassets would be contrary to the public interest, having regard in particular to how likely it is that the entry of the cryptoassets into general circulation would facilitate criminal conduct by any person.
(9B)
An order conferring that power—
(a)
must set out the court’s assessment of the market value of the cryptoassets to which it relates;
(b)
may confer power to destroy the cryptoassets only to the extent that their market value, as set out in the order, is less than or equal to the amount remaining to be paid under the confiscation order.
(9C)
If the receiver destroys any cryptoassets in the exercise of that power, the defendant is to be treated as having paid, towards satisfaction of the confiscation order, an amount equal to the market value, as set out in the order, of the cryptoassets which have been destroyed.”
47
(1)
Section 215 (seized money) is amended as follows.
(2)
In subsection (1)(b), for “bank or a building society” substitute “relevant financial institution”
.
(3)
In subsection (5A)—
(a)
for “a bank or building society” substitute “a relevant financial institution”
;
(b)
for “the bank or building society” substitute “the relevant financial institution”
.
(4)
In subsection (6), for “bank or building society” substitute “relevant financial institution”
.
(5)
In subsection (7A), for “bank or building society” substitute “relevant financial institution”
.
(6)
In subsection (8)—
(a)
in paragraph (a) of the definition of “appropriate person”, for the words from “a bank” to the end substitute “a relevant financial institution, the relevant financial institution”
;
(b)
““electronic money institution” has the same meaning as in the Electronic Money Regulations 2011 (S.I. 2011/99) (see regulation 2 of those Regulations);”;
““payment institution” means an authorised payment institution or a small payment institution (each as defined in regulation 2 of the Payment Services Regulations 2017 (S.I. 2017/752));”;
““relevant financial institution” means a bank, a building society, an electronic money institution or a payment institution;”.
(7)
For the heading substitute “Money”
.
48
“215ZACryptoassets
(1)
This section applies to cryptoassets which—
(a)
are held by a person, and
(b)
are held in a crypto wallet administered by a UK-connected cryptoasset service provider,
but only so far as the cryptoassets are free property.
(2)
Subsection (3) applies if—
(a)
a confiscation order is made against a person holding cryptoassets to which this section applies, and
(b)
a receiver has not been appointed under section 198 in relation to the cryptoassets.
(3)
A magistrates’ court may order the UK-connected cryptoasset service provider which administers the crypto wallet in which the cryptoassets are held—
(a)
to realise the cryptoassets, or a portion of the cryptoassets having a specified value,
(b)
to pay the proceeds of that realisation to the appropriate chief clerk on account of, and up to a maximum of, the amount payable under the confiscation order, and
(c)
to the extent that the proceeds of the realisation exceed the amount payable under the confiscation order, to pay the excess to an appropriate officer identified in the order.
(4)
In subsection (3)—
“appropriate chief clerk” has the same meaning as in section 202(7);
“appropriate officer” has the same meaning as in section 195A.
(5)
A person applying for an order under subsection (3) must give notice of the application to the UK-connected cryptoasset service provider.
(6)
Where the crypto wallet in which the cryptoassets are held is administered on behalf of someone other than the person against whom the confiscation order is made, a magistrates’ court—
(a)
may make an order under subsection (3) only if the extent of the person’s interest in the money has been determined under section 160A, and
(b)
must have regard to that determination in deciding what is the appropriate order to make.
(7)
If a UK-connected cryptoasset service provider fails to comply with an order under subsection (3)—
(a)
the magistrates’ court may order it to pay an amount not exceeding £5,000, and
(b)
for the purposes of the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)) the sum is to be treated as adjudged to be paid by a conviction of the court.
(8)
In order to take account of changes in the value of money the Department of Justice in Northern Ireland may by order substitute another sum for the sum for the time being specified in subsection (7)(a).
(9)
Where a UK-connected cryptoasset service provider—
(a)
is required by an order under subsection (3) to realise a portion of cryptoassets having a specified value, but
(b)
on realising cryptoassets under the order, obtains proceeds of an amount which differs from that value,
it does not fail to comply with the order solely because of that difference in value, provided that it took reasonable steps to obtain proceeds equal to the value specified.
215ZBMeaning of “UK-connected cryptoasset service provider”
(1)
“UK-connected cryptoasset service provider” in section 215ZA means a cryptoasset service provider which—
(a)
is acting in the course of business carried on by it in the United Kingdom,
(b)
has terms and conditions with the persons to whom it provides services which provide for a legal dispute to be litigated in the courts of a part of the United Kingdom,
(c)
holds in the United Kingdom any data relating to the persons to whom it provides services, or
(d)
meets the condition in subsection (2).
(2)
The condition in this subsection is that—
(a)
the cryptoasset service provider has its registered office or, if it does not have one, its head office in the United Kingdom, and
(b)
the day-to-day management of the provider’s business is the responsibility of that office or another establishment maintained by it in the United Kingdom.
(3)
“Cryptoasset service provider” in subsections (1) and (2) includes a cryptoasset exchange provider and a custodian wallet provider; and for this purpose—
“cryptoasset exchange provider” means a firm or sole practitioner who by way of business provides one or more of the following services, including where the firm or sole practitioner does so as creator or issuer of any of the cryptoassets involved—
(a)
exchanging, or arranging or making arrangements with a view to the exchange of, cryptoassets for money or money for cryptoassets;
(b)
exchanging, or arranging or making arrangements with a view to the exchange of, one cryptoasset for another;
(c)
operating a machine which utilises automated processes to exchange cryptoassets for money or money for cryptoassets;
“custodian wallet provider” means a firm or sole practitioner who by way of business provides services to safeguard, or to safeguard and administer—
(a)
cryptoassets on behalf of its customers, or
(b)
private cryptographic keys on behalf of its customers in order to hold, store and transfer cryptoassets.
(4)
In the definition of “cryptoasset exchange provider” in subsection (3), “cryptoasset” includes a right to, or interest in, a cryptoasset.
(5)
The Secretary of State may by regulations amend the definitions in subsection (3) (including by amending subsection (4)).
(6)
The Secretary of State must consult the Department of Justice in Northern Ireland before making regulations under subsection (5).”
49
“215AADestruction of seized cryptoassets
(1)
This section applies to cryptoassets which are held by a person and which have been seized by an appropriate officer under a relevant seizure power.
(2)
A magistrates’ court may by order authorise an appropriate officer to destroy the cryptoassets if—
(a)
a confiscation order is made against the person by whom the cryptoassets are held,
(b)
a receiver has not been appointed under section 198 in relation to the cryptoassets, and
(c)
either—
(i)
it is not reasonably practicable to realise the cryptoassets, or
(ii)
there are reasonable grounds to believe that the realisation of the cryptoassets would be contrary to the public interest, having regard in particular to how likely it is that the entry of the cryptoassets into general circulation would facilitate criminal conduct by any person.
(3)
An order under this section—
(a)
must set out the court’s assessment of the market value of the cryptoassets to which it relates;
(b)
may authorise the destruction of cryptoassets only to the extent that their market value, as set out in the order, is less than or equal to the amount remaining to be paid under the confiscation order.
(4)
Before making an order under this section, the court must give persons who hold interests in the cryptoassets a reasonable opportunity to make representations to it.
(5)
If cryptoassets held by a person are destroyed following an order under this section, the person is to be treated as having paid, towards satisfaction of the confiscation order, an amount equal to the market value, as set out in the order, of the cryptoassets which have been destroyed.
(6)
In this section “appropriate officer” and “relevant seizure power” have the same meaning as in section 190A.”
50
(1)
Section 215C (sections 215A and 215B: appeals) is amended as follows.
(2)
In subsection (1), for “215A” substitute “215ZA(3), 215A(3) or 215AA(2)”
.
(3)
In subsection (2), for “215A” substitute “215ZA(3), 215A(3) or 215AA(2)”
.
(4)
In subsection (3), for “215A(2)(a)” substitute “215ZA(2)(a), 215A(2)(a) or 215AA(2)(a) (as applicable)”
.
(5)
In the heading, for “215A and” substitute “215ZA to”
.
51
In section 215D (proceeds of realisation), in subsection (1)(b), after “section” insert “215ZA or”
.
52
For the italic heading before section 215, substitute “Enforcement: money, cryptoassets and personal property”
.
53
“(2A)
Subsection (2)(a) does not apply to—
(a)
the power conferred on a court by paragraph (e) of section 199(2) (which enables the court to give a receiver the power to destroy cryptoassets),
(b)
a power conferred on a receiver by virtue of that paragraph, or
(c)
the power conferred on a magistrates’ court by section 215AA (power to order destruction of cryptoassets).”
Interpretation and miscellaneous provision
54
“232ACryptoassets etc
(1)
“Cryptoasset” means a cryptographically secured digital representation of value or contractual rights that uses a form of distributed ledger technology and can be transferred, stored or traded electronically.
(2)
“Crypto wallet” means—
(a)
software,
(b)
hardware,
(c)
a physical item, or
(d)
any combination of the things mentioned in paragraphs (a) to (c),
which is used to store the cryptographic private key that allows cryptoassets to be accessed.
(3)
“Cryptoasset-related item” has the meaning given in section 195C(5B).
(4)
The circumstances in which a cryptoasset is taken to be “destroyed” include circumstances where it is—
(a)
disposed of,
(b)
transferred, or
(c)
otherwise dealt with,
in such a way as to ensure, or to make it virtually certain, that it will not be the subject of any further transactions or be dealt with again in any other way.
(5)
The Secretary of State may by regulations amend the definitions of “cryptoasset” and “crypto wallet” in this section.
(6)
The Secretary of State must consult the Department of Justice in Northern Ireland before making regulations under subsection (5).”
PART 4Regulations
55
(1)
Section 459 of the Proceeds of Crime Act 2002 is amended as follows.
(2)
“(azza)
regulations under—
(i)
section 67ZB(5) or 84A(5);
(ii)
section 131ZC(5) or 150A(5);
(iii)
section 251ZB(5) or 232A(5);”.
(3)
“(6ZAA)
No regulations may be made by the Secretary of State under any of the following provisions unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House–
(a)
section 67ZB(5) or 84A(5);
(b)
section 131ZC(5) or 150A(5);
(c)
section 251ZB(5) or 232A(5).”