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

Status:

This is the original version (as it was originally made).

Confiscation orders

Confiscation of proceeds of offences other than drug trafficking offences

4.—(1) The Crown Court and a court of summary jurisdiction shall each have power, in addition to dealing with an offender in any other way, to make an order (a confiscation order) requiring him to pay such amount as the court thinks fit, being an amount which must be at least the minimum amount, but must not exceed—

(a)the benefit in respect of which it is made; or

(b)the amount appearing to the court to be the amount that might be realised at the time the order is made, whichever is the less.

(2) The Crown Court may make such an order against an offender where—

(a)he is convicted of any offence to which this Order applies other than a drug trafficking offence; and

(b)it is satisfied—

(i)that he has benefited from that offence or from that offence taken together with some other offence of which he is convicted in the same proceedings, or which the Court takes into consideration in determining his sentence, and which is not a drug trafficking offence; and

(ii)that his benefit is at least the minimum amount.

(3) A court of summary jurisdiction may make such an order against an offender where—

(a)he is convicted of an offence listed in Schedule 1; and

(b)it is satisfied—

(i)that he has benefited from that offence or from that offence taken together with some other offence listed in Schedule 1 of which he is convicted in the same proceedings, or which the court takes into consideration in determining his sentence; and

(ii)that his benefit is at least the minimum amount.

(4) For the purposes of this Order a person benefits from an offence if he obtains property as a result of or in connection with its commission and his benefit is the value of property so obtained.

(5) Where a person derives a pecuniary advantage as a result of or in connection with the commission of an offence, he is to be treated for the purposes of this Order as if he had obtained as a result of or in connection with the commission of the offence a sum of money equal to the value of the pecuniary advantage.

(6) A court shall not make a confiscation order under this Article unless the prosecution has given written notice to the court to the effect that it appears to the prosecution that, were the court to consider that it ought to make such an order, it would be able to make an order requiring the offender to pay at least the minimum amount.

(7) If the prosecution gives the court such a notice, the court shall determine whether it ought to make a confiscation order under this Article.

(8) When considering whether to make a confiscation order under this Article the court may take into account any information that has been placed before it showing that a victim of an offence to which the proceedings relate has instituted, or intends to institute, civil proceedings against the defendant in respect of loss, injury or damage sustained in connection with the offence.

(9) If the court determines that it ought to make such an order, thecourt shall, subject to Article 7, before sentencing or otherwise dealing with the defendant in respect of the offence or, as the case may be, any of the offences concerned, determine the amount to be recovered in his case by virtue of this Article and make a confiscation order for that amount, specifying the offence or offences.

(10) For the purposes of this Order the minimum amount is £10,000 or such other amount as the Secretary of State may specify by order.

(11) An order under paragraph (10) shall be subject to annulment in pursuance of a resolution of either House of Parliament in like manner as a statutory instrument and section 5 of the [1946 c. 36] Statutory Instruments Act 1946 shall apply accordingly.

Confiscation of proceeds of drug trafficking

5.—(1) Where a person is convicted in the Crown Court of one or more drug trafficking offences and the Court determines that he has benefited from drug trafficking the Court shall, subject to Article 7, before sentencing or otherwise dealing with him in respect of the offence or, as the case may be, any of the offences concerned, make an order (a confiscation order) requiring him to pay—

(a)subject to sub-paragraph (b), the amount the Court assesses to be the value of the defendant’s proceeds of drug trafficking; or

(b)if the Court is satisfied that the amount that might be realised at the time the confiscation order is made is less than the amount the Court assesses to be the value of the defendant’s proceeds of drug trafficking, the amount that might be so realised.

(2) For the purposes of this Order, a person who has at any time (whether before or after the coming into operation of this Article) received any payment or other reward in connection with drug trafficking carried on by him or another has benefited from drug trafficking.

Assessing the proceeds of drug trafficking

6.—(1) For the purposes of this Order—

(a)any payments or other rewards received by a person at any time (whether before or after the coming into operation of Article 5) in connection with drug trafficking carried on by him or another are his proceeds of drug trafficking, and

(b)the value of his proceeds of drug trafficking is the aggregate of the values of the payments or other rewards.

(2) The Crown Court may, for the purpose of determining whether the defendant has benefited from drug trafficking and, if he has, of assessing the value of his proceeds of drug trafficking, make the following assumptions, except to the extent that any of the assumptions are shown to be incorrect in the defendant’s case—

(a)that any property appearing to the Court—

(i)to have been held by him at any time since his conviction, or

(ii)to have been transferred to him at any time since the beginning of the period of 6 years ending when the proceedings were instituted against him, was received by him, at the earliest time at which he appears to the Court to have held it, as a payment or reward in connection with drug trafficking carried on by him,

(b)that any expenditure of his since the beginning of that period was met out of payments received by him in connection with drug trafficking carried on by him, and

(c)that, for the purpose of valuing any property received or assumed to have been received by him at any time as such a reward, he received the property free of any other interests in it.

(3) Paragraph (2) does not apply if the only drug trafficking offence in respect of which the defendant appears before the Court to be sentenced is an offence under Article 29 or 30.

(4) For the purpose of assessing the value of the defendant’s proceeds of drug trafficking in a case where a confiscation order has previously been made against him, the Court shall leave out of account any of his proceeds of drug trafficking that are shown to the Court to have been taken into account in determining the amount to be recovered under that order.

(5) References in paragraph (4) to a confiscation order include a confiscation order within the meaning of the [1986 c. 32] Drug Trafficking Offences Act 1986 or Part I of the [1987 c. 41] Criminal Justice (Scotland) Act 1987.

Postponed confiscation orders

7.—(1) Subject to paragraph (2), a court, if it considers that it requires further information before making a confiscation order, may, subject to paragraph (3), postpone making such an order for a period not exceeding 6 months after the date of conviction for the purpose of enabling that information to be obtained; but, without prejudice to Article 50 of the [1981 NI 26] Magistrates' Courts (Northern Ireland) Order 1981 and Article 11 of the [1989 NI 15] Treatment of Offenders (Northern Ireland) Order 1989, may notwithstanding such postponement proceed to sentence or to otherwise deal with the person in respect of the conviction.

(2) A court shall not impose any fine or make an order such as is mentioned in Article 8(1)(b) or (c) before a confiscation order is made.

(3) If during the period of postponement notice of appeal or of application for leave to appeal is given under section 16(1) of the [1980 c. 47] Criminal Appeal (Northern Ireland) Act 1980 or, as the case may be, Article 144(1) of the Magistrates' Courts (Northern Ireland) Order 1981, the court may, on the application of the prosecution, extend that period to a date up to 3 months after the date of the determination of the appeal.

Confiscation orders: supplementary provisions

8.—(1) Where a court makes a confiscation order against a defendant in any proceedings, the court shall, in respect of any offence of which he is convicted in those proceedings, take account of the order before—

(a)imposing any fine on him, or

(b)making any order involving any payment by him, other than an order under Article 3 of the [1980 NI 6] Criminal Justice (Northern Ireland) Order 1980 (compensation orders); or

(c)making any order under—

(i)section 27 of the [1971 c. 38] Misuse of Drugs Act 1971 (forfeiture orders); or

(ii)article 7 of the Criminal Justice (Northern Ireland) Order 1980 (deprivation orders), but subject to that shall leave the order out of account in determining the appropriate sentence or other manner of dealing with him.

(2) No statutory provision restricting the power of a court dealing with an offender in a particular way from dealing with him also in any other way shall by reason only of the making of a confiscation order restrict the court from dealing with an offender in any way it considers appropriate in respect of an offence to which this Order applies.

(3) Where—

(a)a court makes both a confiscation order and an order for the payment of compensation under Article 3 of the [1980 NI 6] Criminal Justice (Northern Ireland) Order 1980 against the same person in the same proceedings; and

(b)it appears to the court that he will not have sufficient means to satisfy both the orders in full, it shall direct that so much of the compensation as will not in its opinion be recoverable because of the insufficiency of his means shall be paid out of any sums recovered under the confiscation order.

Statements, etc., relevant to making confiscation orders

9.—(1) Where—

(a)there is tendered to the court by the prosecution a statement as to any matters relevant—

(i)in the case of a defendant who has been convicted of an offence to which this Order applies other than a drug trafficking offence,— aato the determination whether the defendant has benefited from the offence or from any other offence to which this Order applies other than a drug trafficking offence of which he is convicted in the same proceedings or which is taken into account in determining his sentence; or abto the assessment of the value of his benefit from that offence or that other offence; or

(ii)in the case of a defendant who has been convicted of a drug trafficking offence,— aato the determination whether the defendant has benefited from drug trafficking; or abto the assessment of the value of his proceeds of drug trafficking; and

(b)the defendant accepts to any extent any allegation in the statement; the court may, for the purposes of that determination and assessment, treat his acceptance as conclusive of the matters to which it relates.

(2) Where—

(a)a statement is tendered under paragraph (1)(a), and

(b)the court is satisfied that a copy of that statement has been served on the defendant, the court may require the defendant to indicate to what extent he accepts each allegation in the statement and, so far as he does not accept any such allegation, to indicate any matters he proposes to rely on.

(3) If the defendant fails in any respect to comply with a requirement under paragraph (2), he may be treated for the purposes of this Article as accepting every allegation in the statement apart from—

(a)any allegation in respect of which he has complied with the requirement; and

(b)any allegation that he has—

(i)in the case of a defendant who has been convicted of an offence to which this Order applies other than a drug trafficking offence benefited from an offence or that any property was obtained by him as a result of or in connection with the commission of an offence; or

(ii)in the case of a defendant who has been convicted of a drug trafficking offence, benefited from drug trafficking or that any payment or other reward was received by him in connection with drug trafficking carried on by him or another.

(4) Where—

(a)there is tendered to the court by the defendant a statement as to any matters relevant to determining the amount that might be realised at the time the confiscation order is made, and

(b)the prosecution accepts to any extent any allegation in the statement, the court may, for the purposes of that determination, treat the acceptance by the prosecution as conclusive of the matters to which it relates.

(5) An allegation may be accepted or a matter indicated for the purposes of this Article either—

(a)orally before the court; or

(b)in writing in accordance with Crown Court rules or magistrates' court rules.

(6) No acceptance by the defendant under this Article that any payment or other reward was received by him in connection with drug trafficking carried on by him or another shall be admissible in evidence in any proceedings for an offence.

(7) If the court is satisfied as to any matter relevant for determining the amount that might be realised at the time the confiscation order is made (whether by an acceptance under this Article or otherwise), the court may issue a certificate giving the court’s opinion as to the matters concerned and shall do so if satisfied that the amount that might be realised at the time the confiscation order is made is less than the amount the court assesses to be the value of the defendant’s benefit from the offence or, if more than one, all the offences in respect of which the order may be made, or as the case may be, the defendant’s proceeds from drug trafficking.

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