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Proceeds of Crime Act 2002

Reconsideration

Sections 19-21: Reconsideration

46.Sections 19 and 20 enable a confiscation order to be made where none was made in the original proceedings. Section 21 enables a confiscation order which has already been made to be increased. In all cases, application must be made to the Crown Court within six years of the original conviction. Section 19 applies where no confiscation hearing was held after the original conviction. Section 20 applies where a hearing was held, the court decided that the defendant had a criminal lifestyle but had not benefited from his general criminal conduct or that he did not have a criminal lifestyle and had not benefited from his particular criminal conduct. Section 21 applies where a confiscation order has already been made. It may be used to increase the amount payable under a confiscation order on one or more occasions.

47.The sections reproduce, with some changes, provision in the earlier confiscation legislation. New provision has been required primarily to take account of the new role of the Director in criminal confiscation. Either the prosecutor or the Director may apply to the court for a reconsideration under these sections.

48.The principle underlying these sections is that a reconsideration should only be applied for where new evidence comes to light. It is not appropriate for an authority to have evidence at the time of the earlier proceedings, not to apply for a confiscation order on that occasion but to apply for a reconsideration at a later date. Provision is included to reflect this principle.

49.Some technical provisions are new. Firstly, the earlier legislation requires the court to take into account any fine imposed on the defendant at the original proceedings (to avoid double recovery, since a fine might have been used as a confiscatory measure). The Act now requires the court also to take into account certain orders made against the defendant in the original proceedings – see section 19(7)(c) and (d), 20(11)(c) and (d), and 21(9)(b) and (c). These mainly include forfeiture orders. They have been added because the court might not have made them in the original proceedings if it had made a confiscation order. However, these orders are not to be taken into account if they have already been taken into account by the court in deciding what is free property for the purposes of the revaluation proceedings. This is to prevent the defendant from being allowed a reduction twice in respect of the same property.

50.Secondly, sections 19(8) and 20(12) put it beyond doubt that, where a compensation order was made post-trial, but not a confiscation order, the court cannot order payment of the compensation out of a confiscation order made at a revaluation hearing under sections 19 or 20. There is no provision for the revaluation of a compensation order, which has to be settled at the sentencing stage. Therefore, the payment of any compensation should only be ordered out of confiscated monies under section 13(6) where a confiscation order is also made in the original proceedings.

51.Thirdly, section 21(10) deals with the situation where both a compensation order and a confiscation order have been made in the original proceedings and the court has directed under section 13(6) that the compensation order be paid out of the proceeds of the confiscation order. In this case, the court cannot take the compensation order into account in reconsidering the defendant’s benefit. This is because the defendant would then be able to offset the impact of the compensation order twice.

Section 22: Order made: reconsideration of available amount

52.Section 22 applies where the court made a confiscation order in an amount lower than the defendant’s assessed benefit because there was insufficient realisable property to satisfy an order in the full amount. The prosecutor, the Director, or a receiver appointed in the case may apply to the Crown Court for the court to recalculate the available amount. This is an example of a function exercised by the Crown Court under the Act that has previously been exercised by the High Court.

53.Any number of applications may be made and there is no limitation to the time when an application may be made (in contrast to sections 19 to 21, under which application must be made within six years of the defendant’s conviction). If the court calculates that the available amount has increased, it may vary the amount payable under the confiscation order but may not increase it beyond the defendant’s assessed benefit (meaning either the benefit assessed when the confiscation order was originally made or when it was increased on a revaluation under section 21). Subsection (5) requires the court to have regard to any fine, ancillary order or compensation order imposed on the defendant following the original conviction because these may affect the amount the offender is able to pay. However, subsection (6) contains similar technical provision to section 21(10) to prevent allowance being made twice in the defendant’s favour for the same compensation order.

Section 23: Inadequacy of available amount: variation of order

54.Where a confiscation order has been made, there is a procedure in the earlier confiscation legislation for the defendant or a receiver appointed in the case to apply to the High Court for a “certificate of inadequacy” on demonstrating that the realisable property is insufficient to satisfy the confiscation order. Where the High Court issues a certificate of inadequacy, the certificate may be presented to the Crown Court or magistrates’ court and the amount of the confiscation order must then be reduced.

55.This certificate of inadequacy procedure is cumbersome and expensive. Section 23 provides instead for application to be made directly to the Crown Court by the defendant or a receiver appointed in the case.

Section 24: Inadequacy of available amount: discharge of order

56.Under earlier confiscation legislation, there is no provision for writing off a confiscation order. In principle it should not be necessary, as an order cannot be made in a sum greater than the value of the property available to satisfy it and the certificate of inadequacy procedure, as now implemented by section 23, is available to defendants. The absence of any provision for write-offs has, however, led on occasion to unnecessary practical difficulties, for example, where a court makes a confiscation order based on an assessment of realisable property in the form of foreign currency seized at an airport, and a shortfall in payment of the order arises later due entirely to a change in the value of the currency concerned in the period between the order being made and payment.

57.Section 24 therefore provides that, where a justices’ chief executive in the magistrates’ court is enforcing a confiscation order, the justices’ chief executive may apply to the Crown Court and the Crown Court may write the order off if the outstanding sum is under £1,000 and the reason for the shortfall is a fluctuation in exchange rates or some other factor specified in secondary legislation, or some combination of the two. The sum of £1,000 is variable by order. No similar provision is either available or necessary where the Director is enforcing a confiscation order because enforcement by the Director will always involve the appointment of a receiver, who will be able to apply to the Crown Court under section 23.

Section 25: Small amount outstanding: discharge of order

58.Section 25 also applies only where a justices’ chief executive is enforcing a confiscation order. It deals with the situation where a confiscation order has been satisfied almost in its entirety, but a sum of £50 or less is outstanding. Under these circumstances, the justices’ chief executive may apply to the Crown Court for the confiscation order to be written off. Like section 24, this section introduces an exception to the general principle that a confiscation order may not be written off, but this is made subject to judicial oversight, and applies only where a small amount is outstanding. In such circumstances, the recovery of the sum in question would not justify the expense required to recover it. The sum of £50 is variable by secondary legislation.

Section 26: Information

59.Section 26 contains provision ancillary to sections 19-21. Its purpose is to make it clear that sections 16 and 17 on statements of information and section 18 on the provision of information by the defendant apply to reconsideration proceedings as they apply to confiscation proceedings immediately following a conviction.

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