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Proceeds of Crime Act 2002

Defendant absconds

Section 27: Defendant convicted or committed

60.Section 27 is the first of a number of sections dealing with confiscation orders against absconders. Under the earlier confiscation legislation of England and Wales, the High Court may make a confiscation order against an absconded drug trafficker (one who has absconded either after conviction or after proceedings have been instituted). The Act empowers the Crown Court to make a confiscation order against an absconder convicted of, or charged with, any crime.

61.The existing provision for the High Court in England and Wales to make a confiscation order against a drug trafficker who dies after conviction but before the Crown Court can make a confiscation order is abolished. It is considered that the recovery of benefit where the perpetrator is dead is better dealt with under the civil recovery procedures in Part 5 of the Act.

62.Section 27 deals with the situation where a defendant is convicted either in the Crown Court or in the magistrates’ court, and then absconds. In the case of a conviction in the magistrates’ court, the defendant must have been committed to the Crown Court for sentence or confiscation (and sentence) before absconding. Either the prosecutor or the Director may apply to the Crown Court for a confiscation order to be made under this section.

63.Subsection (5)(e) provides that sections 19-21 (reconsideration) do not apply where a person is still an absconder following conviction. Thus they do all apply where a convicted absconder returns.

Section 28: Defendant neither convicted nor acquitted

64.Section 28 deals with absconders who abscond prior to conviction. A confiscation order may only be made against such an absconder if two years have elapsed from the time he absconded. Under earlier confiscation legislation, a confiscation order may be made by the High Court on application by the prosecutor in these circumstances. Under the Act, application is made to the Crown Court by the prosecutor or the Director.

65.Subsections (5)(d) and (e) set out how sections 19-21 (reconsideration) are to apply where the defendant absconds before he has been convicted. Sections 19 and 20 do not apply and section 21 does not apply whilst the offender is an absconder. It is not appropriate for sections 19 and 20 to apply because they deal with the situation where decisions have been taken after a conviction. Subsection (7) provides that when a court has made a confiscation order in this situation it cannot go on to make another confiscation order if the defendant returns and is convicted.

Section 29 : Variation of order

66.Section 29 applies where the Crown Court has made a confiscation order in absentia against an absconder who absconded after proceedings were instituted, but had not been convicted when the confiscation order was made. Where the absconder returns and is convicted of one or more of the charges, the confiscation order made in absentia stands. A new confiscation order is not made. However, the absconder may apply within 28 days of the conviction for a variation of the order made in absentia. The section represents a departure from the earlier confiscation legislation, which only enables a confiscation order made in absentia to be varied within six months of its being made, regardless of whether the defendant has returned and been convicted.

Section 30: Discharge of order

67.Section 30 applies where the Crown Court has made a confiscation order in absentia and the absconder returns and is acquitted on all counts or is not proceeded against. On application by the absconder, where he has been acquitted the confiscation order must be discharged. Where the prosecutor does not intend to proceed or there is undue delay in proceeding, the court has a discretion to discharge the order.

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