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.
