72AAConfiscation relating to a course of criminal conduct

1

This section applies in a case where an offender is convicted, in any proceedings before the Crown Court or a magistrates' court, of a qualifying offence which is an offence of a relevant description, if—

a

the prosecutor gives written notice for the purposes of subsection (1)(a) of section 71 above;

b

that notice contains a declaration that it is the prosecutor’s opinion that the case is one in which it is appropriate for the provisions of this section to be applied; and

c

the offender—

i

is convicted in those proceedings of at least two qualifying offences (including the offence in question); or

ii

has been convicted of a qualifying offence on at least one previous occasion during the relevant period.

2

In this section “qualifying offence”, in relation to proceedings before the Crown Court or a magistrates' court, means any offence in relation to which all the following conditions are satisfied, that is to say—

a

it is an offence to which this Part of this Act applies;

b

it is an offence which was committed after the commencement of section 2 of the Proceeds of Crime Act 1995; and

c

that court is satisfied that it is an offence from which the defendant has benefited.

3

When proceeding under section 71 above in pursuance of the notice mentioned in subsection (1)(a) above, the court may, if it thinks fit, determine that (subject to subsection (5) below) the assumptions specified in subsection (4) below are to be made for the purpose—

a

of determining whether the defendant has benefited from relevant criminal conduct; and

b

if he has, of assessing the value of the defendant’s benefit from such conduct.

4

Those assumptions are—

a

that any property appearing to the court—

i

to be held by the defendant at the date of conviction or at any time in the period between that date and the determination in question, or

ii

to have been transferred to him at any time since the beginning of the relevant period,

was received by him, at the earliest time when he appears to the court to have held it, as a result of or in connection with the commission of offences to which this Part of this Act applies;

b

that any expenditure of his since the beginning of the relevant period was met out of payments received by him as a result of or in connection with the commission of offences to which this Part of this Act applies; and

c

that, for the purposes of valuing any benefit which he had or which he is assumed to have had at any time, he received the benefit free of any other interests in it.

5

Where the court has determined that the assumptions specified in subsection (4) above are to be made in any case it shall not in that case make any such assumption in relation to any particular property or expenditure if—

a

that assumption, so far as it relates to that property or expenditure, is shown to be incorrect in the defendant’s case;

b

that assumption, so far as it so relates, is shown to be correct in relation to an offence the defendant’s benefit from which has been the subject of a previous confiscation order; or

c

the court is satisfied that there would (for any other reason) be a serious risk of injustice in the defendant’s case if the assumption were to be made in relation to that property or expenditure.

6

Where the assumptions specified in subsection (4) above are made in any case, the offences from which, in accordance with those assumptions, the defendant is assumed to have benefited shall be treated as if they were comprised, for the purposes of this Part of this Act, in the conduct which is to be treated, in that case, as relevant criminal conduct in relation to the defendant.

7

In this section “the date of conviction” means—

a

in a case not falling within paragraph (b) below, the date on which the defendant is convicted of the offence in question, or

b

where he is convicted of that offence and one or more other offences in the proceedings in question and those convictions are not all on the same date, the date of the latest of those convictions; and

• “the relevant period” means the period of six years ending when the proceedings in question were instituted against the defendant.