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Proceeds of Crime Act 2002

Enforcement as fines etc

Section 35: Director not appointed as enforcement authority

76.Section 35 explains how confiscation orders are to be enforced where the magistrates’ court is the enforcement authority. As at present, the order will be treated as a Crown Court fine and enforced, as is a Crown Court fine, by the use of the magistrates’ court’s fine enforcement powers, as set out in Part 3 of the Magistrates’ Courts Act 1980 but subject to some modifications. One of the main features of treating the order as a Crown Court fine is that the Crown Court, where it makes a confiscation order, is required to set a term of imprisonment in default of payment. The maximum default term that may be imposed is determined by the amount payable under the confiscation order. The maximum default term applicable to a particular confiscation order varies from 7 days, for an amount not exceeding £200 to, at the other end of the scale, ten years for an amount exceeding £1 million.

Section 36: Director appointed as enforcement authority

77.Section 36 also applies certain Crown Court fine enforcement measures where enforcement is to be by the Director. The relevant provisions require the court, where it makes a confiscation order, to specify a term of imprisonment in default of payment.

Section 37: Director’s application for enforcement

78.As noted above, confiscation order enforcement by magistrates’ courts will continue to be broadly regulated by the Magistrates’ Courts Act 1980. This contains detailed provision on imprisonment in default of payment. Because the 1980 Act will not apply to enforcement by the Director, it has been necessary, in section 37, to create specific procedures for a term of imprisonment in default to be enforced at the Director’s request.

79.Section 37 contains provision broadly based on that in the 1980 Act, except that the Director will apply to the Crown Court to trigger the default term. This is in accordance with the concept of the Crown Court being the main venue for confiscation and related proceedings.

Section 38: Provisions about imprisonment or detention

80.Section 38 contains general provision on imprisonment in default of payment of a sum due under a confiscation order, applicable whether the default term is imposed by a magistrates’ court or by the Crown Court in response to an application by the Director. The provision reflects that in existing legislation and provides, in particular, that a term of imprisonment in default must be served consecutively to the substantive term imposed for the offence(s), and that the service of a default term does not prevent the sum due under the confiscation order from being collected subsequently by other means.

Section 39: Reconsideration etc: variation of prison term

81.As explained in the note on section 35 above, the Crown Court fixes the period of imprisonment in default by reference to the amount due under the confiscation order. Section 39 provides for the period of imprisonment in default to be varied where the court varies the amount due under a confiscation order under the following provisions of the Act:

  • Section 21: reconsideration of benefit (resulting in upward variation of the amount due under the order)

  • Section 22: reconsideration of available amount (resulting in upward variation of the amount due)

  • Section 23: inadequacy of available amount (resulting in downward variation of the amount due)

  • Section 29: variation of order (for returned absconders, resulting in downward variation of the amount due)

  • Section 32: Court of Appeal’s variation of Crown Court’s order after prosecutor’s or Director’s appeal (resulting either in upward or in downward variation)

  • Section 33: House of Lords’ variation of Court of Appeal order (resulting either in upward or in downward variation)

82.The overall purpose of the provision is to clarify what happens when the variation of the amount due under a confiscation order changes the maximum period of imprisonment in default applicable to the order.

83.Where the effect of the variation is to decrease the amount due under the order so that the new amount falls into a lower band, section 39 requires the court to reduce the default term to one lower than the maximum applicable to the band in question. In other cases the court is given a discretion to amend the term of imprisonment in default, i.e. the court has power to increase it.

84.In addition, where the amount due under the confiscation order is increased by interest payable under section 12, the Director or the prosecutor may apply to the court to increase the term of imprisonment in default.

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