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Proceeds of Crime Act 1995

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8 Enforcement etc. of confiscation orders.E+W

(1)In section 75 of the 1988 Act (application of procedure for enforcing fines), the following subsection shall be inserted after subsection (5)—

(5A)Where the defendant serves a term of imprisonment or detention in default of paying any amount due under a confiscation order, his serving that term does not prevent the confiscation order from continuing to have effect, so far as any other method of enforcement is concerned.

(2)The following subsections shall be substituted for subsections (1) and (2) of section 76 of that Act (cases in which restraint or charging order may be made)—

(1)The powers conferred on the High Court by sections 77(1) and 78(1) below are exercisable where—

(a)proceedings have been instituted in England and Wales against any person for an offence to which this Part of this Act applies;

(b)the proceedings have not been concluded or (if they have) an application that has not been concluded has been made under section 74A, 74B or 74C above in respect of the defendant in those proceedings; and

(c)the court is satisfied that there is reasonable cause to believe—

(i)in a case where there is an application under section 74C above, that the court will be satisfied as mentioned in subsection (3) of that section;

(ii)in any other case, that the proceedings may result or have resulted in, or that the application is made by reference to, a conviction of the defendant for an offence of a relevant description from which he may be, or has been, shown to have benefited.

(1A)The court shall not exercise those powers by virtue of subsection (1) above if it is satisfied—

(a)that there has been undue delay in continuing the proceedings or application in question; or

(b)that the person who appears to the court to be the person who has or will have the conduct of the prosecution or, as the case may be, who made that application does not intend to proceed with it.

(2)The powers conferred on the High Court by sections 77(1) and 78(1) below are also exercisable where—

(a)the court is satisfied that a person is to be charged (whether by the laying of an information or otherwise) with an offence to which this Part of this Act applies or that an application of a kind mentioned in subsection (1)(b) above is to be made; and

(b)the court is satisfied that the making or variation of a confiscation order may result from proceedings for that offence or, as the case may be, from the application.

(3)In subsection (4) of section 76 of that Act—

(a)after “otherwise)” there shall be inserted “ , or (as the case may be) no application is made, ”; and

(b)at the end there shall be inserted “ or if the court is satisfied that the case has become a case in which, in pursuance of subsection (1A) above, it would be unable to exercise the powers conferred by virtue of subsection (1) above. ”

(4)In section 77(6) of that Act (discharge of restraint orders), the following paragraph shall be substituted for paragraph (b)—

(b)shall be discharged on the conclusion of the proceedings or application in question.

(5)In section 78 of that Act (charging orders), the following subsection shall be substituted for subsection (7)—

(7)In relation to a charging order, the court—

(a)may at any time make an order discharging or varying it; and

(b)shall make an order discharging it on the occurrence of whichever of the following first occurs, that is to say—

(i)the conclusion of the proceedings or application in question; and

(ii)the payment into court of the amount payment of which is secured by the charge.

(6)In section 80(1) of that Act (circumstances in which High Court may exercise powers relating to realisation of property), the following paragraphs shall be substituted for paragraphs (a) to (c)—

(a)a confiscation order is made in proceedings instituted for an offence to which this Part of this Act applies or an order is made or varied on an application under section 74A, 74B or 74C above;

(b)the proceedings in question have not, or the application in question has not, been concluded; and

(c)the order or variation is not subject to appeal;.

(7)In section 84(6) of that Act (bankruptcy of defendant), the following paragraphs shall be substituted for paragraphs (a) and (b)—

(a)no order shall be made under section 339 or 423 of that Act (avoidance of certain transactions) in respect of the making of the gift at any time when—

(i)proceedings for an offence to which this Part of this Act applies have been instituted against him and have not been concluded;

(ii)an application has been made under section 74A, 74B or 74C above in respect of the defendant in any such proceedings and has not been concluded; or

(iii)property of the person to whom the gift was made is subject to a restraint order or charging order; and

(b)any order made under section 339 or 423 of that Act after the conclusion of the proceedings or application shall take into account any realisation under this Part of this Act of property held by the person to whom the gift was made.

(8)In section 102 of that Act (interpretation of Part VI), the following subsections shall be substituted for subsection (12)—

(12)Proceedings for an offence are concluded—

(a)when the defendant is acquitted on all counts or, as the case may be, every charge against him is dismissed;

(b)if he is convicted on one or more counts or charges but the court decides not to make a confiscation order against him, when the court makes that decision;

(c)if he is sentenced without the court having considered whether or not to proceed under section 71 above in his case, when he is sentenced; and

(d)if a confiscation order is made against him in those proceedings, when the order is satisfied.

(12A)An application under section 74A, 74B or 74C above is concluded—

(a)if the court decides not to make or, as the case may be, not to vary any order against the defendant on that application, when it makes that decision;

(b)if an order against the defendant is made or varied on that application, when the order is satisfied; and

(c)if the application is withdrawn, when the prosecutor notifies the withdrawal of the application to the court to which it was made.

(12B)For the purposes of this Part of this Act, a confiscation order is satisfied when no amount is due under it.

(12C)For the purposes only of section 84 above, a confiscation order shall be treated as 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.

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