The Criminal Justice (Confiscation)(Northern Ireland) Order 1990

Definition of principal terms used

3.—(1) In this Order, “realisable property” means, subject to paragraph (2)—

(a) any property held by the defendant; and

(b) any property held by a person to whom the defendant has directly or indirectly made a gift caught by this Order.

(2) Property is not realisable property if—

(a) an order under Article 7 of the [1980 NI 6] Criminal Justice (Northern Ireland) Order 1980 (deprivation orders);

(b) an order under section 27 of the [1971 c. 38] Misuse of Drugs Act 1971 (forfeiture orders); or

(c) an order under section 13(2), (3) or (4) of the [1989 c. 4] Prevention of Terrorism (Temporary Provisions) Act 1989 (forfeiture orders), is in force in respect of the property.

(3) For the purposes of this Order the amount that might be realised at the time a confiscation order is made is—

(a) the total of the values at that time of all the realisable property held by the defendant, less

(b) where there are obligations having priority at that time, the total amounts payable in pursuance of such obligations, together with the total of the values at that time of all gifts caught by this Order.

(4) Subject to the following provisions of this Article, for the purposes of this Order the value of property (other than cash) in relation to any person holding the property—

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

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

(ii) the amount required to discharge any incumbrance (other than a charging order) on that interest; and

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

(5) References in this Order to the value at any time (referred to in paragraph (6) as “the material time”) of any property obtained by a person as a result of or in connection with the commission of an offence are references to—

(a) the value of the property to him when he obtained it adjusted to take account of subsequent changes in the value of money; or

(b) where paragraph (6) applies, the value there mentioned, whichever is the greater.

(6) If at the material time he holds—

(a) the property which he obtained (not being cash); or

(b) property which, in whole or in part, directly or indirectly represents in his hands the property which he obtained, the value referred to in paragraph (5)(b) is the value to him at the material time of the property mentioned in sub-paragraph (a) or, as the case may be, of the property mentioned in sub-paragraph (b), so far as it so represents the property which he obtained, but disregarding any charging order.

(7) Subject to paragraph (12), references in this Order to the value at any time (referred to in paragraph (8) as “the material time”) of a gift caught by this Order or of any payment or reward are references to—

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

(b) where paragraph (8) applies, the value there mentioned, whichever is the greater.

(8) Subject to paragraph (12), if at the material time he holds—

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

(b) property which, in whole or in part, directly or indirectly represents in his hands the property which he received; the value referred to in paragraph (7) is the value to him at the material time of the property mentioned in sub-paragraph (a) or, as the case may be, of the property mentioned in sub-paragraph (b) so far as it so represents the property which he received, but disregarding any charging order.

(9) For the purposes of paragraph (3), an obligation has priority at any time if it is an obligation of the defendant to—

(a) pay an amount due in respect of a fine, or other order of a court, imposed or made on conviction of an offence, where the fine was imposed or order made before the confiscation order; or

(b) pay any sum which would be included among the preferential debts (within the meaning given by Article 346 of the [1989 NI 19] Insolvency (Northern Ireland) Order 1989) in the defendant’s bankruptcy commencing on the date of the confiscation order or winding up under an order of the court made on that date.

(10) A gift (including a gift made before the coming into operation of this Order) is caught by this Order if—

(a) in the case of an offence to which this Order applies other than a drug trafficking offence—

(i) it was made by the defendant at any time after the commission of the offence or, if more than one, the earliest of the offences to which the proceedings for the time being relate; and

(ii) the court considers it appropriate in all the circumstances to take the gift into account; or

(b) in the case of a drug trafficking offence—

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

(ii) it was made by the defendant at any time and was a gift of property— aareceived by the defendant in connection with drug trafficking carried on by him or another, or abwhich in whole or in part directly or indirectly represented in the defendant’s hands property received by him in that connection.

(11) The reference in paragraph (10)(a)(i) to an offence to which the proceedings for the time being relate includes, where the proceedings have resulted in the conviction of the defendant, a reference to any offence which the court takes into consideration when determining his sentence.

(12) For the purposes of this Order—

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

(b) in those circumstances, the preceding provisions of this Article shall apply as if the defendant had made a gift of such share in the property as bears to the whole property the same proportion as the difference between the values referred to in sub-paragraph (a) bears to the value of the consideration provided by the defendant.