Office of Public Sector Information
PART II continued
“(12) Proceedings for a drug trafficking offence are concluded—
(a) when the defendant is acquitted on all counts;
(b) if he is convicted on one or more counts, but the court decides not to make a confiscation order against him, when it makes that decision; or
(c) if a confiscation order is made against him in those proceedings, when the order is satisfied.
(12A) An application under section 4A, 5A or 5B of this Act is concluded—
(a) if the court decides not to make a confiscation order against the defendant, when it makes that decision; or
(b) if a confiscation order is made against him as a result of that application, when the order is satisfied.
(12B) An application under section 16 of the [1990 c. 5.] Criminal Justice (International Co-operation) Act 1990 (increase in realisable property) or section 5C of this Act is concluded—
(a) if the court decides not to vary the confiscation order in question, when it makes that decision; or
(b) if the court varies the confiscation order as a result of the application, when the order is satisfied.
(12C) For the purposes of this Act, a confiscation order is satisfied when no amount is due under it.
(12D) For the purposes of sections 15 and 16 of this Act, a confiscation order is also satisfied when the defendant in respect of whom it was made has served a term of imprisonment or detention in default of payment of the amount due under the order.”.
(1) The following sections shall be inserted in the [1986 c. 32.] Drug Trafficking Offences Act 1986, after section 4—
(1) Subsection (2) below applies where a person has been convicted of one or more drug trafficking offences.
(2) If the prosecutor asks it to proceed under this section, the High Court may exercise the powers of the Crown Court under this Act to make a confiscation order against the defendant if satisfied that the defendant has died or absconded.
(3) Subsection (4) below applies where proceedings for one or more drug trafficking offences have been instituted against a person but have not been concluded.
(4) If the prosecutor asks it to proceed under this section, the High Court may exercise the powers of the Crown Court under this Act to make a confiscation order against the defendant if satisfied that the defendant has absconded.
(5) The power conferred by subsection (4) above may not be exercised at any time before the end of the period of two years beginning with the date which is, in the opinion of the court, the date on which the defendant absconded.
(6) In any proceedings on an application under this section—
(a) sections 2(2) and 3(1D), (2) and (3) shall not apply,
(b) the court shall not make a confiscation order against a person who has absconded unless it is satisfied that the prosecutor has taken reasonable steps to contact him, and
(c) any person appearing to the court to be likely to be affected by the making of a confiscation order by the court shall be entitled to appear before the court and make representations.
(1) Where the High Court has made a confiscation order by virtue of section 4A of this Act, the Crown Court shall, in respect of the offence or any of the offences concerned—
(a) take account of the order before—
(i) imposing any fine on him, or
(ii) making any order involving any payment by him, or
(iii) making any order under section 27 of the [1971 c. 38.] Misuse of Drugs Act 1971 (forfeiture orders) or section 43 of the [1973 c. 62.] Powers of Criminal Courts Act 1973 (deprivation orders), and
(b) subject to paragraph (a) above, leave the order out of account in determining the appropriate sentence or other manner of dealing with the defendant.
(2) Where the High Court has made a confiscation order by virtue of section 4A of this Act and the defendant subsequently appears before the Crown Court to be sentenced in respect of one or more of the offences concerned, section 1(1) of this Act shall not apply so far as his appearance is in respect of that offence or those offences.”.
(2) In section 6 of the Act of 1986 (application of procedure for enforcing fines), in subsection (6), after the words “made by”, where they first occur, there shall be inserted “the High Court, by virtue of section 4A of this Act, or by”.
(3) The following subsection shall be added at the end of section 6 of the Act of 1986—
“(8) Where the High Court makes a confiscation order by virtue of section 4A of this Act in relation to a defendant who has died, subsection (1) above shall be read as referring only to sections 31(1) and 32(1) of the Act of 1973.”.
The following sections shall be inserted in the [1986 c. 32.] Drug Trafficking Offences Act 1986, after section 19—
(1) This section applies where—
(a) the High Court has made a confiscation order by virtue of section 4A(4) of this Act, and
(b) the defendant is subsequently tried for the offence or offences concerned and acquitted on all counts.
(2) The court by which the defendant is acquitted shall cancel the confiscation order.
(3) The High Court may, on the application of a person who held property which was realisable property, order compensation to be paid to the applicant if it is satisfied that the applicant has suffered loss as a result of the making of the confiscation order.
(4) The amount of compensation to be paid under this section shall be such as the court considers just in all the circumstances of the case.
(5) Rules of court may make provision—
(a) for the giving of notice of any application under this section; and
(b) for any person appearing to the court to be likely to be affected by any exercise of its powers under this section to be given an opportunity to make representations to the court.
(6) Any payment of compensation under this section shall be made by the Lord Chancellor out of money provided by Parliament.
(7) Where the court cancels a confiscation order under this section it may make such consequential or incidental order as it considers appropriate in connection with the cancellation.
(1) This section applies where—
(a) the High Court has made a confiscation order by virtue of section 4A(4) of this Act in relation to an absconder,
(b) the defendant has ceased to be an absconder, and
(c) section 19A of this Act does not apply.
(2) The High Court may, on the application of the defendant, cancel the confiscation order if it is satisfied that—
(a) there has been undue delay in continuing the proceedings in respect of which the power under section 4A(4) of this Act was exercised; or
(b) the prosecutor does not intend to proceed with the prosecution.
(3) Where the High Court cancels a confiscation order under this section it may, on the application of a person who held property which was realisable property, order compensation to be paid to the applicant if it is satisfied that the applicant has suffered loss as a result of the making of the confiscation order.
(4) The amount of compensation to be paid under this section shall be such as the court considers just in all the circumstances of the case.
(5) Rules of court may make provision—
(a) for the giving of notice of any application under this section; and
(b) for any person appearing to the court to be likely to be affected by any exercise of its powers under this section to be given an opportunity to make representations to the court.
(6) Any payment of compensation under this section shall be made by the Lord Chancellor out of money provided by Parliament.
(7) Where the court cancels a confiscation order under this section it may make such consequential or incidental order as it considers appropriate in connection with the cancellation.
(1) This section applies where—
(a) the High Court has made a confiscation order by virtue of section 4A(4) of this Act, and
(b) the defendant has ceased to be an absconder.
(2) If the defendant alleges that—
(a) the value of his proceeds of drug trafficking in the period by reference to which the determination in question was made (the “original value”), or
(b) the amount that might have been realised at the time the confiscation order was made,
was less than the amount ordered to be paid under the confiscation order, he may apply to the High Court for it to consider his evidence.
(3) If, having considered that evidence, the court is satisfied that the defendant’s allegation is correct it—
(a) shall make a fresh determination under subsection (4) of section 1 of this Act, and
(b) may, if it considers it just in all the circumstances, vary the amount to be recovered under the confiscation order.
(4) For any determination under section 1 of this Act by virtue of this section, section 2(5) of this Act shall not apply in relation to any of the defendant’s proceeds of drug trafficking taken into account in determining the original value.
(5) Where the court varies a confiscation order under this section—
(a) it shall substitute for the term of imprisonment or of detention fixed under section 31(2) of the [1973 c. 62.] Powers of Criminal Courts Act 1973 in respect of the amount to be recovered under the order a shorter term determined in accordance with that section (as it has effect by virtue of section 6 of this Act) in respect of the lesser amount; and
(b) on the application of a person who held property which was realisable property, it may order compensation to be paid to the applicant if—
(i) it is satisfied that the applicant has suffered loss as a result of the making of the confiscation order; and
(ii) having regard to all the circumstances of the case, the court considers it to be appropriate.
(6) The amount of compensation to be paid under this section shall be such as the court considers just in all the circumstances of the case.
(7) Rules of court may make provision—
(a) for the giving of notice of any application under this section; and
(b) for any person appearing to the court to be likely to be affected by any exercise of its powers under this section to be given an opportunity to make representations to the court.
(8) Any payment of compensation under this section shall be made by the Lord Chancellor out of money provided by Parliament.
(9) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with the date on which the confiscation order was made.”.
(1) The following section shall be inserted in the [1986 c. 32.] Drug Trafficking Offences Act 1986 at the appropriate place—
(1) A person is guilty of an offence if, knowing that any property is, or in whole or in part directly or indirectly represents, another person’s proceeds of drug trafficking, he acquires or uses that property or has possession of it.
(2) It is a defence to a charge of committing an offence under this section that the person charged acquired or used the property or had possession of it for adequate consideration.
(3) For the purposes of subsection (2) above—
(a) a person acquires property for inadequate consideration if the value of the consideration is significantly less than the value of the property; and
(b) a person uses or has possession of property for inadequate consideration if the value of the consideration is significantly less than the value of his use or possession of the property.
(4) The provision for any person of services or goods which are of assistance to him in drug trafficking shall not be treated as consideration for the purposes of subsection (2) above.
(5) Where a person discloses to a constable a suspicion or belief that any property is, or in whole or in part directly or indirectly represents, another person’s proceeds of drug trafficking, or discloses to a constable any matter on which such a suspicion or belief is based—
(a) the disclosure shall not be treated as a breach of any restriction upon the disclosure of information imposed by statute or otherwise; and
(b) if he does any act in relation to the property in contravention of subsection (1) above, he does not commit an offence under this section if—
(i) the disclosure is made before he does the act concerned and the act is done with the consent of the constable, or
(ii) the disclosure is made after he does the act, but on his initiative and as soon as it is reasonable for him to make it.
(6) For the purposes of this section, having possession of any property shall be taken to be doing an act in relation to it.
(7) In proceedings against a person for an offence under this section, it is a defence to prove that—
(a) he intended to disclose to a constable such a suspicion, belief or matter as is mentioned in subsection (5) above, but
(b) there is reasonable excuse for his failure to make the disclosure in accordance with paragraph (b) of that subsection.
(8) In the case of a person who was in employment at the relevant time, subsections (5) and (7) above shall have effect in relation to disclosures, and intended disclosures, to the appropriate person in accordance with the procedure established by his employer for the making of such disclosures as they have effect in relation to disclosures, and intended disclosures, to a constable.
(9) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or to both, or
(b) on conviction on indictment, to imprisonment for a term not exceeding fourteen years or a fine or to both.
(10) No constable or other person shall be guilty of an offence under this section in respect of anything done by him in the course of acting in connection with the enforcement, or intended enforcement, of any provision of this Act or of any other enactment relating to drug trafficking or the proceeds of such trafficking.”.
(2) In section 2(4) of the Act of 1986 (circumstances where assumptions are not to be made), after first “section” there shall be inserted “23A or”.
(1) The following section shall be inserted in the [1987 c. 41.] Criminal Justice (Scotland) Act 1987, after section 42—
(1) A person is guilty of an offence if, knowing that any property is, or in whole or in part directly or indirectly represents, another person’s proceeds of drug trafficking, he acquires or uses that property or has possession of it.
(2) It is a defence to a charge of committing an offence under this section that the person charged acquired or used the property or had possession of it for adequate consideration.
(3) For the purposes of subsection (2) above—
(a) a person acquires property for inadequate consideration if the value of the consideration is significantly less than the value of the property; and
(b) a person uses or has possession of property for inadequate consideration if the value of the consideration is significantly less than the value of his use or possession of the property.
(4) The provision for any person of services or goods which are of assistance to him in drug trafficking shall not be treated as consideration for the purposes of subsection (2) above.
(5) Where a person discloses to a constable or to a person commissioned by the Commissioners of Customs and Excise a suspicion or belief that any property is, or in whole or in part directly or indirectly represents, another person’s proceeds of drug trafficking, or discloses to a constable or a person so commissioned any matter on which such a suspicion or belief is based—
(a) the disclosure shall not be treated as a breach of any restriction upon the disclosure of information imposed by statute or otherwise; and
(b) if he does any act in relation to the property in contravention of subsection (1) above, he does not commit an offence under this section if—
(i) the disclosure is made before he does the act concerned and the act is done with the consent of the constable or person so commissioned, or
(ii) the disclosure is made after he does the act, but on his initiative and as soon as it is reasonable for him to make it.
(6) For the purposes of this section having possession of any property shall be taken to be doing an act in relation to it.
(7) In proceedings against a person for an offence under this section, it is a defence to prove that—
(a) he intended to disclose to a constable or a person so commissioned such a suspicion, belief or matter as is mentioned in subsection (5) above; but
(b) there is reasonable excuse for his failure to make the disclosure in accordance with paragraph (b) of that subsection.
(8) In the case of a person who was in employment at the relevant time, subsections (5) and (7) above shall have effect in relation to disclosures, and intended disclosures, to the appropriate person in accordance with the procedure established by his employer for the making of such disclosures as they have effect in relation to disclosures, and intended disclosures, to a constable or a person so commissioned.
(9) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both; or
(b) on conviction on indictment, to imprisonment for a term not exceeding fourteen years or to a fine or to both.
(10) No constable, person so commissioned or other person shall be guilty of an offence under this section in respect of anything done by him in the course of acting in connection with the enforcement, or intended enforcement, of any provision of this Act or of any other enactment relating to drug trafficking or the proceeds of such trafficking.”.
(2) In section 3(3) of the Act of 1987 (circumstances where assumptions are not to be made), after the word “section” where it first occurs there shall be inserted the words “42A or”.
(1) The following sections shall be inserted in the [1986 c. 32.] Drug Trafficking Offences Act 1986, after section 26A—
(1) A person is guilty of an offence if—
(a) he knows, or suspects, that another person is engaged in drug money laundering,
(b) the information, or other matter, on which that knowledge or suspicion is based came to his attention in the course of his trade, profession, business or employment, and
(c) he does not disclose the information or other matter to a constable as soon as is reasonably practicable after it comes to his attention.
(2) Subsection (1) above does not make it an offence for a professional legal adviser to fail to disclose any information or other matter which has come to him in privileged circumstances.
(3) It is a defence to a charge of committing an offence under this section that the person charged had a reasonable excuse for not disclosing the information or other matter in question.
(4) Where a person discloses to a constable—
(a) his suspicion or belief that another person is engaged in drug money laundering, or
(b) any information or other matter on which that suspicion or belief is based,
the disclosure shall not be treated as a breach of any restriction imposed by statute or otherwise.
(5) Without prejudice to subsection (3) or (4) above, in the case of a person who was in employment at the relevant time, it is a defence to a charge of committing an offence under this section that he disclosed the information or other matter in question to the appropriate person in accordance with the procedure established by his employer for the making of such disclosures.
(6) A disclosure to which subsection (5) above applies shall not be treated as a breach of any restriction imposed by statute or otherwise.
(7) In this section, “drug money laundering” means doing any act which constitutes an offence under—
(a) section 23A or 24 of this Act; or
(b) section 14 of the [1990 c. 5.] Criminal Justice (International Co-operation) Act 1990 (concealing or transferring proceeds of drug trafficking);
or, in the case of an act done otherwise than in England and Wales, would constitute such an offence if done in England and Wales.
(8) For the purposes of subsection (7) above, having possession of any property shall be taken to be doing an act in relation to it.
(9) For the purposes of this section, any information or other matter comes to a professional legal adviser in privileged circumstances if it is communicated, or given, to him—
(a) by, or by a representative of, a client of his in connection with the giving by the adviser of legal advice to the client;
(b) by, or by a representative of, a person seeking legal advice from the adviser; or
(c) by any person—
(i) in contemplation of, or in connection with, legal proceedings; and
(ii) for the purpose of those proceedings.
(10) No information or other matter shall be treated as coming to a professional legal adviser in privileged circumstances if it is communicated or given with a view to furthering any criminal purpose.
(11) A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or to both, or
(b) on conviction on indictment, to imprisonment for a term not exceeding five years or a fine or to both.
(1) A person is guilty of an offence if—
(a) he knows or suspects that a constable is acting, or is proposing to act, in connection with an investigation which is being, or is about to be, conducted into drug money laundering, and
(b) he discloses to any other person information or any other matter which is likely to prejudice that investigation, or proposed investigation.
(2) A person is guilty of an offence if—
(a) he knows or suspects that a disclosure (“the disclosure”) has been made to a constable under section 23A, 24 or 26B of this Act, and
(b) he discloses to any other person information or any other matter which is likely to prejudice any investigation which might be conducted following the disclosure.
(3) A person is guilty of an offence if—
(a) he knows or suspects that a disclosure of a kind mentioned in section 23A(8), 24(4A) or 26B(5) of this Act (“the disclosure”) has been made, and
(b) he discloses to any person information or any other matter which is likely to prejudice any investigation which might be conducted following the disclosure.
(4) Nothing in subsections (1) to (3) above makes it an offence for a professional legal adviser to disclose any information or other matter—
(a) to, or to a representative of, a client of his in connection with the giving by the adviser of legal advice to the client; or
(b) to any person—
(i) in contemplation of, or in connection with, legal proceedings; and
(ii) for the purpose of those proceedings.
(5) Subsection (4) above does not apply in relation to any information or other matter which is disclosed with a view to furthering any criminal purpose.
(6) In proceedings against a person for an offence under subsection (1), (2) or (3) above, it is a defence to prove that he did not know or suspect that the disclosure was likely to be prejudicial in the way mentioned in that subsection.
(7) In this section “drug money laundering” has the same meaning as in section 26B of this Act.
(8) A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or to both, or
(b) on conviction on indictment, to imprisonment for a term not exceeding five years or a fine or to both.
(9) No constable or other person shall be guilty of an offence under this section in respect of anything done by him in the course of acting in connection with the enforcement, or intended enforcement, of any provision of this Act or of any other enactment relating to drug trafficking or the proceeds of such trafficking.”.
(2) In section 24 of the [1986 c. 32.] Drug Trafficking Offences Act 1986 (assisting another to retain the benefit of drug trafficking), in subsection (3)(a) for the word “contract” there shall be substituted “statute or otherwise”.
(3) In section 24 of the Act of 1986, the following subsection shall be inserted after subsection (4)—
“(4A) In the case of a person who was in employment at the relevant time, subsections (3) and (4) above shall have effect in relation to disclosures, and intended disclosures, to the appropriate person in accordance with the procedure established by his employer for the making of such disclosures as they have effect in relation to disclosures, and intended disclosures, to a constable.”.
(1) The following sections shall be inserted after section 43 of the [1987 c. 41.] Criminal Justice (Scotland) Act 1987—
(1) A person is guilty of an offence if—
(a) he knows, or suspects, that another person is engaged in drug money laundering,
(b) the information, or other matter, on which that knowledge or suspicion is based came to his attention in the course of his trade, profession, business or employment, and
(c) he does not disclose the information or other matter to a constable or to a person commissioned by the Commissioners of Customs and Excise as soon as is reasonably practicable after it comes to his attention.
(2) Subsection (1) above does not make it an offence for a professional legal adviser to fail to disclose any information or other matter which has come to him in privileged circumstances.
(3) It is a defence to a charge of committing an offence under this section that the person charged had a reasonable excuse for not disclosing the information or other matter in question.
(4) Where a person discloses to a constable or a person so commissioned—
(a) his suspicion or belief that another person is engaged in drug money laundering, or
(b) any information or other matter on which that suspicion or belief is based,
the disclosure shall not be treated as a breach of any restriction imposed by statute or otherwise.
(5) Without prejudice to subsection (3) or (4) above, in the case of a person who was in employment at the relevant time, it is a defence to a charge of committing an offence under this section that he disclosed the information or other matter in question to the appropriate person in accordance with the procedure established by his employer for the making of such disclosures.
(6) A disclosure to which subsection (5) above applies shall not be treated as a breach of any restriction imposed by statute or otherwise.
Criminal Justice Act 1993