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Proceeds of Crime Act 2002

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E+W+S+N.I.

Proceeds of Crime Act 2002

2002 CHAPTER 29

An Act to establish the Assets Recovery Agency and make provision about the appointment of its Director and his functions (including Revenue functions), to provide for confiscation orders in relation to persons who benefit from criminal conduct and for restraint orders to prohibit dealing with property, to allow the recovery of property which is or represents property obtained through unlawful conduct or which is intended to be used in unlawful conduct, to make provision about money laundering, to make provision about investigations relating to benefit from criminal conduct or to property which is or represents property obtained through unlawful conduct or to money laundering, to make provision to give effect to overseas requests and orders made where property is found or believed to be obtained through criminal conduct, and for connected purposes.

[24th July 2002]

B e it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Part 1 E+W+S+N.I.Assets Recovery Agency

1 The Agency and its DirectorE+W+S+N.I.

(1)There shall be an Assets Recovery Agency (referred to in this Act as the Agency).

(2)The Secretary of State must appoint a Director of the Agency (referred to in this Act as the Director).

(3)The Director is a corporation sole.

(4)The Director may—

(a)appoint such persons as members of staff of the Agency, and

(b)make such arrangements for the provision of services,

as he considers appropriate for or in connection with the exercise of his functions.

(5)But the Director must obtain the approval of the Minister for the Civil Service as to the number of staff appointed under subsection (4)(a).

(6)Anything which the Director is authorised or required to do may be done by—

(a)a member of staff of the Agency, or

(b)a person providing services under arrangements made by the Director,

if authorised by the Director (generally or specifically) for that purpose.

(7)Schedule 1 contains further provisions about the Agency and the Director.

2 Director’s functions: generalE+W+S+N.I.

(1)The Director must exercise his functions in the way which he considers is best calculated to contribute to the reduction of crime.

(2)In exercising his functions as required by subsection (1) the Director must—

(a)act efficiently and effectively;

(b)have regard to his current annual plan (as approved by the Secretary of State in accordance with Schedule 1).

(3)The Director may do anything (including the carrying out of investigations) which he considers is—

(a)appropriate for facilitating, or

(b)incidental or conducive to,

the exercise of his functions.

(4)But subsection (3) does not allow the Director to borrow money.

(5)In considering under subsection (1) the way which is best calculated to contribute to the reduction of crime the Director must have regard to any guidance given to him by the Secretary of State.

(6)The guidance must indicate that the reduction of crime is in general best secured by means of criminal investigations and criminal proceedings.

3 Accreditation and trainingE+W+S+N.I.

(1)The Director must establish a system for the accreditation of financial investigators.

(2)The system of accreditation must include provision for—

(a)the monitoring of the performance of accredited financial investigators, and

(b)the withdrawal of accreditation from any person who contravenes or fails to comply with any condition subject to which he was accredited.

(3)A person may be accredited—

(a)in relation to this Act;

(b)in relation to particular provisions of this Act.

(4)But the accreditation may be limited to specified purposes.

(5)A reference in this Act to an accredited financial investigator is to be construed accordingly.

(6)The Director may charge a person—

(a)for being accredited as a financial investigator, and

(b)for the monitoring of his performance as an accredited financial investigator.

(7)The Director must make provision for the training of persons in—

(a)financial investigation, and

(b)the operation of this Act.

(8)The Director may charge the persons who receive the training.

4 Co-operationE+W+S+N.I.

(1)Persons who have functions relating to the investigation or prosecution of offences must co-operate with the Director in the exercise of his functions.

(2)The Director must co-operate with those persons in the exercise of functions they have under this Act.

5 Advice and assistanceE+W+S+N.I.

The Director must give the Secretary of State advice and assistance which he reasonably requires and which—

(a)relate to matters connected with the operation of this Act, and

(b)are designed to help the Secretary of State to exercise his functions so as to reduce crime.

Part 2 E+WConfiscation: England and Wales

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Modifications etc. (not altering text)

Confiscation ordersE+W

6 Making of orderE+W

(1)The Crown Court must proceed under this section if the following two conditions are satisfied.

(2)The first condition is that a defendant falls within any of the following paragraphs—

(a)he is convicted of an offence or offences in proceedings before the Crown Court;

(b)he is committed to the Crown Court for sentence in respect of an offence or offences under section 3, 4 or 6 of the Sentencing Act;

(c)he is committed to the Crown Court in respect of an offence or offences under section 70 below (committal with a view to a confiscation order being considered).

(3)The second condition is that—

(a)the prosecutor or the Director asks the court to proceed under this section, or

(b)the court believes it is appropriate for it to do so.

(4)The court must proceed as follows—

(a)it must decide whether the defendant has a criminal lifestyle;

(b)if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct;

(c)if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct.

(5)If the court decides under subsection (4)(b) or (c) that the defendant has benefited from the conduct referred to it must—

(a)decide the recoverable amount, and

(b)make an order (a confiscation order) requiring him to pay that amount.

(6)But the court must treat the duty in subsection (5) as a power if it believes that any victim of the conduct has at any time started or intends to start proceedings against the defendant in respect of loss, injury or damage sustained in connection with the conduct.

(7)The court must decide any question arising under subsection (4) or (5) on a balance of probabilities.

(8)The first condition is not satisfied if the defendant absconds (but section 27 may apply).

(9)References in this Part to the offence (or offences) concerned are to the offence (or offences) mentioned in subsection (2).

7 Recoverable amountE+W

(1)The recoverable amount for the purposes of section 6 is an amount equal to the defendant’s benefit from the conduct concerned.

(2)But if the defendant shows that the available amount is less than that benefit the recoverable amount is—

(a)the available amount, or

(b)a nominal amount, if the available amount is nil.

(3)But if section 6(6) applies the recoverable amount is such amount as—

(a)the court believes is just, but

(b)does not exceed the amount found under subsection (1) or (2) (as the case may be).

(4)In calculating the defendant’s benefit from the conduct concerned for the purposes of subsection (1), any property in respect of which—

(a)a recovery order is in force under section 266, or

(b)a forfeiture order is in force under section 298(2),

must be ignored.

(5)If the court decides the available amount, it must include in the confiscation order a statement of its findings as to the matters relevant for deciding that amount.

8 Defendant’s benefitE+W

(1)If the court is proceeding under section 6 this section applies for the purpose of—

(a)deciding whether the defendant has benefited from conduct, and

(b)deciding his benefit from the conduct.

(2)The court must—

(a)take account of conduct occurring up to the time it makes its decision;

(b)take account of property obtained up to that time.

(3)Subsection (4) applies if—

(a)the conduct concerned is general criminal conduct,

(b)a confiscation order mentioned in subsection (5) has at an earlier time been made against the defendant, and

(c)his benefit for the purposes of that order was benefit from his general criminal conduct.

(4)His benefit found at the time the last confiscation order mentioned in subsection (3)(c) was made against him must be taken for the purposes of this section to be his benefit from his general criminal conduct at that time.

(5)If the conduct concerned is general criminal conduct the court must deduct the aggregate of the following amounts—

(a)the amount ordered to be paid under each confiscation order previously made against the defendant;

(b)the amount ordered to be paid under each confiscation order previously made against him under any of the provisions listed in subsection (7).

(6)But subsection (5) does not apply to an amount which has been taken into account for the purposes of a deduction under that subsection on any earlier occasion.

(7)These are the provisions—

(a)the Drug Trafficking Offences Act 1986 (c. 32);

(b)Part 1 of the Criminal Justice (Scotland) Act 1987 (c. 41);

(c)Part 6 of the Criminal Justice Act 1988 (c. 33);

(d)the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));

(e)Part 1 of the Drug Trafficking Act 1994 (c. 37);

(f)Part 1 of the Proceeds of Crime (Scotland) Act 1995 (c. 43);

(g)the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9));

(h)Part 3 or 4 of this Act.

(8)The reference to general criminal conduct in the case of a confiscation order made under any of the provisions listed in subsection (7) is a reference to conduct in respect of which a court is required or entitled to make one or more assumptions for the purpose of assessing a person’s benefit from the conduct.

9 Available amountE+W

(1)For the purposes of deciding the recoverable amount, the available amount is the aggregate of—

(a)the total of the values (at the time the confiscation order is made) of all the free property then held by the defendant minus the total amount payable in pursuance of obligations which then have priority, and

(b)the total of the values (at that time) of all tainted gifts.

(2)An obligation has priority if it is an obligation of the defendant—

(a)to pay an amount due in respect of a fine or other order of a court which was imposed or made on conviction of an offence and at any time before the time the confiscation order is made, or

(b)to pay a sum which would be included among the preferential debts if the defendant’s bankruptcy had commenced on the date of the confiscation order or his winding up had been ordered on that date.

(3)Preferential debts” has the meaning given by section 386 of the Insolvency Act 1986 (c. 45).

10 Assumptions to be made in case of criminal lifestyleE+W

(1)If the court decides under section 6 that the defendant has a criminal lifestyle it must make the following four assumptions for the purpose of—

(a)deciding whether he has benefited from his general criminal conduct, and

(b)deciding his benefit from the conduct.

(2)The first assumption is that any property transferred to the defendant at any time after the relevant day was obtained by him—

(a)as a result of his general criminal conduct, and

(b)at the earliest time he appears to have held it.

(3)The second assumption is that any property held by the defendant at any time after the date of conviction was obtained by him—

(a)as a result of his general criminal conduct, and

(b)at the earliest time he appears to have held it.

(4)The third assumption is that any expenditure incurred by the defendant at any time after the relevant day was met from property obtained by him as a result of his general criminal conduct.

(5)The fourth assumption is that, for the purpose of valuing any property obtained (or assumed to have been obtained) by the defendant, he obtained it free of any other interests in it.

(6)But the court must not make a required assumption in relation to particular property or expenditure if—

(a)the assumption is shown to be incorrect, or

(b)there would be a serious risk of injustice if the assumption were made.

(7)If the court does not make one or more of the required assumptions it must state its reasons.

(8)The relevant day is the first day of the period of six years ending with—

(a)the day when proceedings for the offence concerned were started against the defendant, or

(b)if there are two or more offences and proceedings for them were started on different days, the earliest of those days.

(9)But if a confiscation order mentioned in section 8(3)(c) has been made against the defendant at any time during the period mentioned in subsection (8)—

(a)the relevant day is the day when the defendant’s benefit was calculated for the purposes of the last such confiscation order;

(b)the second assumption does not apply to any property which was held by him on or before the relevant day.

(10)The date of conviction is—

(a)the date on which the defendant was convicted of the offence concerned, or

(b)if there are two or more offences and the convictions were on different dates, the date of the latest.

11 Time for paymentE+W

(1)The amount ordered to be paid under a confiscation order must be paid on the making of the order; but this is subject to the following provisions of this section.

(2)If the defendant shows that he needs time to pay the amount ordered to be paid, the court making the confiscation order may make an order allowing payment to be made in a specified period.

(3)The specified period—

(a)must start with the day on which the confiscation order is made, and

(b)must not exceed six months.

(4)If within the specified period the defendant applies to the Crown Court for the period to be extended and the court believes there are exceptional circumstances, it may make an order extending the period.

(5)The extended period—

(a)must start with the day on which the confiscation order is made, and

(b)must not exceed 12 months.

(6)An order under subsection (4)—

(a)may be made after the end of the specified period, but

(b)must not be made after the end of the period of 12 months starting with the day on which the confiscation order is made.

(7)The court must not make an order under subsection (2) or (4) unless it gives—

(a)the prosecutor, or

(b)if the Director was appointed as the enforcement authority for the order under section 34, the Director,

an opportunity to make representations.

12 Interest on unpaid sumsE+W

(1)If the amount required to be paid by a person under a confiscation order is not paid when it is required to be paid, he must pay interest on the amount for the period for which it remains unpaid.

(2)The rate of interest is the same rate as that for the time being specified in section 17 of the Judgments Act 1838 (c. 110) (interest on civil judgment debts).

(3)For the purposes of this section no amount is required to be paid under a confiscation order if—

(a)an application has been made under section 11(4),

(b)the application has not been determined by the court, and

(c)the period of 12 months starting with the day on which the confiscation order was made has not ended.

(4)In applying this Part the amount of the interest must be treated as part of the amount to be paid under the confiscation order.

13 Effect of order on court’s other powersE+W

(1)If the court makes a confiscation order it must proceed as mentioned in subsections (2) and (4) in respect of the offence or offences concerned.

(2)The court must take account of the confiscation order before—

(a)it imposes a fine on the defendant, or

(b)it makes an order falling within subsection (3).

(3)These orders fall within this subsection—

(a)an order involving payment by the defendant, other than an order under section 130 of the Sentencing Act (compensation orders);

(b)an order under section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders);

(c)an order under section 143 of the Sentencing Act (deprivation orders);

(d)an order under section 23 of the Terrorism Act 2000 (c. 11) (forfeiture orders).

(4)Subject to subsection (2), the court must leave the confiscation order out of account in deciding the appropriate sentence for the defendant.

(5)Subsection (6) applies if—

(a)the Crown Court makes both a confiscation order and an order for the payment of compensation under section 130 of the Sentencing Act against the same person in the same proceedings, and

(b)the court believes he will not have sufficient means to satisfy both the orders in full.

(6)In such a case the court must direct that so much of the compensation as it specifies is to be paid out of any sums recovered under the confiscation order; and the amount it specifies must be the amount it believes will not be recoverable because of the insufficiency of the person’s means.

Procedural mattersE+W

14 PostponementE+W

(1)The court may—

(a)proceed under section 6 before it sentences the defendant for the offence (or any of the offences) concerned, or

(b)postpone proceedings under section 6 for a specified period.

(2)A period of postponement may be extended.

(3)A period of postponement (including one as extended) must not end after the permitted period ends.

(4)But subsection (3) does not apply if there are exceptional circumstances.

(5)The permitted period is the period of two years starting with the date of conviction.

(6)But if—

(a)the defendant appeals against his conviction for the offence (or any of the offences) concerned, and

(b)the period of three months (starting with the day when the appeal is determined or otherwise disposed of) ends after the period found under subsection (5),

the permitted period is that period of three months.

(7)A postponement or extension may be made—

(a)on application by the defendant;

(b)on application by the prosecutor or the Director (as the case may be);

(c)by the court of its own motion.

(8)If—

(a)proceedings are postponed for a period, and

(b)an application to extend the period is made before it ends,

the application may be granted even after the period ends.

(9)The date of conviction is—

(a)the date on which the defendant was convicted of the offence concerned, or

(b)if there are two or more offences and the convictions were on different dates, the date of the latest.

(10)References to appealing include references to applying under section 111 of the Magistrates’ Courts Act 1980 (c. 43) (statement of case).

(11)A confiscation order must not be quashed only on the ground that there was a defect or omission in the procedure connected with the application for or the granting of a postponement.

(12)But subsection (11) does not apply if before it made the confiscation order the court—

(a)imposed a fine on the defendant;

(b)made an order falling within section 13(3);

(c)made an order under section 130 of the Sentencing Act (compensation orders).

15 Effect of postponementE+W

(1)If the court postpones proceedings under section 6 it may proceed to sentence the defendant for the offence (or any of the offences) concerned.

(2)In sentencing the defendant for the offence (or any of the offences) concerned in the postponement period the court must not—

(a)impose a fine on him,

(b)make an order falling within section 13(3), or

(c)make an order for the payment of compensation under section 130 of the Sentencing Act.

(3)If the court sentences the defendant for the offence (or any of the offences) concerned in the postponement period, after that period ends it may vary the sentence by—

(a)imposing a fine on him,

(b)making an order falling within section 13(3), or

(c)making an order for the payment of compensation under section 130 of the Sentencing Act.

(4)But the court may proceed under subsection (3) only within the period of 28 days which starts with the last day of the postponement period.

(5)For the purposes of—

(a)section 18(2) of the Criminal Appeal Act 1968 (c. 19) (time limit for notice of appeal or of application for leave to appeal), and

(b)paragraph 1 of Schedule 3 to the Criminal Justice Act 1988 (c. 33) (time limit for notice of application for leave to refer a case under section 36 of that Act),

the sentence must be regarded as imposed or made on the day on which it is varied under subsection (3).

(6)If the court proceeds to sentence the defendant under subsection (1), section 6 has effect as if the defendant’s particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

(7)The postponement period is the period for which proceedings under section 6 are postponed.

16 Statement of informationE+W

(1)If the court is proceeding under section 6 in a case where section 6(3)(a) applies, the prosecutor or the Director (as the case may be) must give the court a statement of information within the period the court orders.

(2)If the court is proceeding under section 6 in a case where section 6(3)(b) applies and it orders the prosecutor to give it a statement of information, the prosecutor must give it such a statement within the period the court orders.

(3)If the prosecutor or the Director (as the case may be) believes the defendant has a criminal lifestyle the statement of information is a statement of matters the prosecutor or the Director believes are relevant in connection with deciding these issues—

(a)whether the defendant has a criminal lifestyle;

(b)whether he has benefited from his general criminal conduct;

(c)his benefit from the conduct.

(4)A statement under subsection (3) must include information the prosecutor or Director believes is relevant—

(a)in connection with the making by the court of a required assumption under section 10;

(b)for the purpose of enabling the court to decide if the circumstances are such that it must not make such an assumption.

(5)If the prosecutor or the Director (as the case may be) does not believe the defendant has a criminal lifestyle the statement of information is a statement of matters the prosecutor or the Director believes are relevant in connection with deciding these issues—

(a)whether the defendant has benefited from his particular criminal conduct;

(b)his benefit from the conduct.

(6)If the prosecutor or the Director gives the court a statement of information—

(a)he may at any time give the court a further statement of information;

(b)he must give the court a further statement of information if it orders him to do so, and he must give it within the period the court orders.

(7)If the court makes an order under this section it may at any time vary it by making another one.

17 Defendant’s response to statement of informationE+W

(1)If the prosecutor or the Director gives the court a statement of information and a copy is served on the defendant, the court may order the defendant—

(a)to indicate (within the period it orders) the extent to which he accepts each allegation in the statement, and

(b)so far as he does not accept such an allegation, to give particulars of any matters he proposes to rely on.

(2)If the defendant accepts to any extent an allegation in a statement of information the court may treat his acceptance as conclusive of the matters to which it relates for the purpose of deciding the issues referred to in section 16(3) or (5) (as the case may be).

(3)If the defendant fails in any respect to comply with an order under subsection (1) he may be treated for the purposes of subsection (2) as accepting every allegation in the statement of information apart from—

(a)any allegation in respect of which he has complied with the requirement;

(b)any allegation that he has benefited from his general or particular criminal conduct.

(4)For the purposes of this section an allegation may be accepted or particulars may be given in a manner ordered by the court.

(5)If the court makes an order under this section it may at any time vary it by making another one.

(6)No acceptance under this section that the defendant has benefited from conduct is admissible in evidence in proceedings for an offence.

18 Provision of information by defendantE+W

(1)This section applies if—

(a)the court is proceeding under section 6 in a case where section 6(3)(a) applies, or

(b)it is proceeding under section 6 in a case where section 6(3)(b) applies or it is considering whether to proceed.

(2)For the purpose of obtaining information to help it in carrying out its functions the court may at any time order the defendant to give it information specified in the order.

(3)An order under this section may require all or a specified part of the information to be given in a specified manner and before a specified date.

(4)If the defendant fails without reasonable excuse to comply with an order under this section the court may draw such inference as it believes is appropriate.

(5)Subsection (4) does not affect any power of the court to deal with the defendant in respect of a failure to comply with an order under this section.

(6)If the prosecutor or the Director (as the case may be) accepts to any extent an allegation made by the defendant—

(a)in giving information required by an order under this section, or

(b)in any other statement given to the court in relation to any matter relevant to deciding the available amount under section 9,

the court may treat the acceptance as conclusive of the matters to which it relates.

(7)For the purposes of this section an allegation may be accepted in a manner ordered by the court.

(8)If the court makes an order under this section it may at any time vary it by making another one.

(9)No information given under this section which amounts to an admission by the defendant that he has benefited from criminal conduct is admissible in evidence in proceedings for an offence.

ReconsiderationE+W

19 No order made: reconsideration of caseE+W

(1)This section applies if—

(a)the first condition in section 6 is satisfied but no court has proceeded under that section,

(b)there is evidence which was not available to the prosecutor on the relevant date,

(c)before the end of the period of six years starting with the date of conviction the prosecutor or the Director applies to the Crown Court to consider the evidence, and

(d)after considering the evidence the court believes it is appropriate for it to proceed under section 6.

(2)If this section applies the court must proceed under section 6, and when it does so subsections (3) to (8) below apply.

(3)If the court has already sentenced the defendant for the offence (or any of the offences) concerned, section 6 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

(4)Section 8(2) does not apply, and the rules applying instead are that the court must—

(a)take account of conduct occurring before the relevant date;

(b)take account of property obtained before that date;

(c)take account of property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

(5)In section 10—

(a)the first and second assumptions do not apply with regard to property first held by the defendant on or after the relevant date;

(b)the third assumption does not apply with regard to expenditure incurred by him on or after that date;

(c)the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

(6)The recoverable amount for the purposes of section 6 is such amount as—

(a)the court believes is just, but

(b)does not exceed the amount found under section 7.

(7)In arriving at the just amount the court must have regard in particular to—

(a)the amount found under section 7;

(b)any fine imposed on the defendant in respect of the offence (or any of the offences) concerned;

(c)any order which falls within section 13(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by the court in deciding what is the free property held by him for the purposes of section 9;

(d)any order which has been made against him in respect of the offence (or any of the offences) concerned under section 130 of the Sentencing Act (compensation orders).

(8)If an order for the payment of compensation under section 130 of the Sentencing Act has been made against the defendant in respect of the offence or offences concerned, section 13(5) and (6) above do not apply.

(9)The relevant date is—

(a)if the court made a decision not to proceed under section 6, the date of the decision;

(b)if the court did not make such a decision, the date of conviction.

(10)The date of conviction is—

(a)the date on which the defendant was convicted of the offence concerned, or

(b)if there are two or more offences and the convictions were on different dates, the date of the latest.

20 No order made: reconsideration of benefitE+W

(1)This section applies if the following two conditions are satisfied.

(2)The first condition is that in proceeding under section 6 the court has decided that—

(a)the defendant has a criminal lifestyle but has not benefited from his general criminal conduct, or

(b)the defendant does not have a criminal lifestyle and has not benefited from his particular criminal conduct.

(3)If the court proceeded under section 6 because the Director asked it to, the second condition is that—

(a)the Director has evidence which was not available to him when the court decided that the defendant had not benefited from his general or particular criminal conduct,

(b)before the end of the period of six years starting with the date of conviction the Director applies to the Crown Court to consider the evidence, and

(c)after considering the evidence the court concludes that it would have decided that the defendant had benefited from his general or particular criminal conduct (as the case may be) if the evidence had been available to it.

(4)If the court proceeded under section 6 because the prosecutor asked it to or because it believed it was appropriate for it to do so, the second condition is that—

(a)there is evidence which was not available to the prosecutor when the court decided that the defendant had not benefited from his general or particular criminal conduct,

(b)before the end of the period of six years starting with the date of conviction the prosecutor or the Director applies to the Crown Court to consider the evidence, and

(c)after considering the evidence the court concludes that it would have decided that the defendant had benefited from his general or particular criminal conduct (as the case may be) if the evidence had been available to it.

(5)If this section applies the court—

(a)must make a fresh decision under section 6(4)(b) or (c) whether the defendant has benefited from his general or particular criminal conduct (as the case may be);

(b)may make a confiscation order under that section.

(6)Subsections (7) to (12) below apply if the court proceeds under section 6 in pursuance of this section.

(7)If the court has already sentenced the defendant for the offence (or any of the offences) concerned, section 6 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

(8)Section 8(2) does not apply, and the rules applying instead are that the court must—

(a)take account of conduct occurring before the date of the original decision that the defendant had not benefited from his general or particular criminal conduct;

(b)take account of property obtained before that date;

(c)take account of property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

(9)In section 10—

(a)the first and second assumptions do not apply with regard to property first held by the defendant on or after the date of the original decision that the defendant had not benefited from his general or particular criminal conduct;

(b)the third assumption does not apply with regard to expenditure incurred by him on or after that date;

(c)the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

(10)The recoverable amount for the purposes of section 6 is such amount as—

(a)the court believes is just, but

(b)does not exceed the amount found under section 7.

(11)In arriving at the just amount the court must have regard in particular to—

(a)the amount found under section 7;

(b)any fine imposed on the defendant in respect of the offence (or any of the offences) concerned;

(c)any order which falls within section 13(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by the court in deciding what is the free property held by him for the purposes of section 9;

(d)any order which has been made against him in respect of the offence (or any of the offences) concerned under section 130 of the Sentencing Act (compensation orders).

(12)If an order for the payment of compensation under section 130 of the Sentencing Act has been made against the defendant in respect of the offence or offences concerned, section 13(5) and (6) above do not apply.

(13)The date of conviction is the date found by applying section 19(10).

21 Order made: reconsideration of benefitE+W

(1)This section applies if—

(a)a court has made a confiscation order,

(b)there is evidence which was not available to the prosecutor or the Director at the relevant time,

(c)the prosecutor or the Director believes that if the court were to find the amount of the defendant’s benefit in pursuance of this section it would exceed the relevant amount,

(d)before the end of the period of six years starting with the date of conviction the prosecutor or the Director applies to the Crown Court to consider the evidence, and

(e)after considering the evidence the court believes it is appropriate for it to proceed under this section.

(2)The court must make a new calculation of the defendant’s benefit from the conduct concerned, and when it does so subsections (3) to (6) below apply.

(3)If a court has already sentenced the defendant for the offence (or any of the offences) concerned section 6 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

(4)Section 8(2) does not apply, and the rules applying instead are that the court must—

(a)take account of conduct occurring up to the time it decided the defendant’s benefit for the purposes of the confiscation order;

(b)take account of property obtained up to that time;

(c)take account of property obtained after that time if it was obtained as a result of or in connection with conduct occurring before that time.

(5)In applying section 8(5) the confiscation order must be ignored.

(6)In section 10—

(a)the first and second assumptions do not apply with regard to property first held by the defendant after the time the court decided his benefit for the purposes of the confiscation order;

(b)the third assumption does not apply with regard to expenditure incurred by him after that time;

(c)the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him after that time.

(7)If the amount found under the new calculation of the defendant’s benefit exceeds the relevant amount the court—

(a)must make a new calculation of the recoverable amount for the purposes of section 6, and

(b)if it exceeds the amount required to be paid under the confiscation order, may vary the order by substituting for the amount required to be paid such amount as it believes is just.

(8)In applying subsection (7)(a) the court must—

(a)take the new calculation of the defendant’s benefit;

(b)apply section 9 as if references to the time the confiscation order is made were to the time of the new calculation of the recoverable amount and as if references to the date of the confiscation order were to the date of that new calculation.

(9)In applying subsection (7)(b) the court must have regard in particular to—

(a)any fine imposed on the defendant for the offence (or any of the offences) concerned;

(b)any order which falls within section 13(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by the court in deciding what is the free property held by him for the purposes of section 9;

(c)any order which has been made against him in respect of the offence (or any of the offences) concerned under section 130 of the Sentencing Act (compensation orders).

(10)But in applying subsection (7)(b) the court must not have regard to an order falling within subsection (9)(c) if a court has made a direction under section 13(6).

(11)In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.

(12)The relevant time is—

(a)when the court calculated the defendant’s benefit for the purposes of the confiscation order, if this section has not applied previously;

(b)when the court last calculated the defendant’s benefit in pursuance of this section, if this section has applied previously.

(13)The relevant amount is—

(a)the amount found as the defendant’s benefit for the purposes of the confiscation order, if this section has not applied previously;

(b)the amount last found as the defendant’s benefit in pursuance of this section, if this section has applied previously.

(14)The date of conviction is the date found by applying section 19(10).

22 Order made: reconsideration of available amountE+W

(1)This section applies if—

(a)a court has made a confiscation order,

(b)the amount required to be paid was the amount found under section 7(2), and

(c)an applicant falling within subsection (2) applies to the Crown Court to make a new calculation of the available amount.

(2)These applicants fall within this subsection—

(a)the prosecutor;

(b)the Director;

(c)a receiver appointed under section 50 or 52.

(3)In a case where this section applies the court must make the new calculation, and in doing so it must apply section 9 as if references to the time the confiscation order is made were to the time of the new calculation and as if references to the date of the confiscation order were to the date of the new calculation.

(4)If the amount found under the new calculation exceeds the relevant amount the court may vary the order by substituting for the amount required to be paid such amount as—

(a)it believes is just, but

(b)does not exceed the amount found as the defendant’s benefit from the conduct concerned.

(5)In deciding what is just the court must have regard in particular to—

(a)any fine imposed on the defendant for the offence (or any of the offences) concerned;

(b)any order which falls within section 13(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by the court in deciding what is the free property held by him for the purposes of section 9;

(c)any order which has been made against him in respect of the offence (or any of the offences) concerned under section 130 of the Sentencing Act (compensation orders).

(6)But in deciding what is just the court must not have regard to an order falling within subsection (5)(c) if a court has made a direction under section 13(6).

(7)In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.

(8)The relevant amount is—

(a)the amount found as the available amount for the purposes of the confiscation order, if this section has not applied previously;

(b)the amount last found as the available amount in pursuance of this section, if this section has applied previously.

(9)The amount found as the defendant’s benefit from the conduct concerned is—

(a)the amount so found when the confiscation order was made, or

(b)if one or more new calculations of the defendant’s benefit have been made under section 21 the amount found on the occasion of the last such calculation.

23 Inadequacy of available amount: variation of orderE+W

(1)This section applies if—

(a)a court has made a confiscation order, and

(b)the defendant, or a receiver appointed under section 50 or 52, applies to the Crown Court to vary the order under this section.

(2)In such a case the court must calculate the available amount, and in doing so it must apply section 9 as if references to the time the confiscation order is made were to the time of the calculation and as if references to the date of the confiscation order were to the date of the calculation.

(3)If the court finds that the available amount (as so calculated) is inadequate for the payment of any amount remaining to be paid under the confiscation order it may vary the order by substituting for the amount required to be paid such smaller amount as the court believes is just.

(4)If a person has been adjudged bankrupt or his estate has been sequestrated, or if an order for the winding up of a company has been made, the court must take into account the extent to which realisable property held by that person or that company may be distributed among creditors.

(5)The court may disregard any inadequacy which it believes is attributable (wholly or partly) to anything done by the defendant for the purpose of preserving property held by the recipient of a tainted gift from any risk of realisation under this Part.

(6)In subsection (4) “company” means any company which may be wound up under the Insolvency Act 1986 (c. 45) or the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)).

24 Inadequacy of available amount: discharge of orderE+W

(1)This section applies if—

(a)a court has made a confiscation order,

(b)a justices’ chief executive applies to the Crown Court for the discharge of the order, and

(c)the amount remaining to be paid under the order is less than £1,000.

(2)In such a case the court must calculate the available amount, and in doing so it must apply section 9 as if references to the time the confiscation order is made were to the time of the calculation and as if references to the date of the confiscation order were to the date of the calculation.

(3)If the court—

(a)finds that the available amount (as so calculated) is inadequate to meet the amount remaining to be paid, and

(b)is satisfied that the inadequacy is due wholly to a specified reason or a combination of specified reasons,

it may discharge the confiscation order.

(4)The specified reasons are—

(a)in a case where any of the realisable property consists of money in a currency other than sterling, that fluctuations in currency exchange rates have occurred;

(b)any reason specified by the Secretary of State by order.

(5)The Secretary of State may by order vary the amount for the time being specified in subsection (1)(c).

25 Small amount outstanding: discharge of orderE+W

(1)This section applies if—

(a)a court has made a confiscation order,

(b)a justices’ chief executive applies to the Crown Court for the discharge of the order, and

(c)the amount remaining to be paid under the order is £50 or less.

(2)In such a case the court may discharge the order.

(3)The Secretary of State may by order vary the amount for the time being specified in subsection (1)(c).

26 InformationE+W

(1)This section applies if—

(a)the court proceeds under section 6 in pursuance of section 19 or 20, or

(b)the prosecutor or the Director applies under section 21.

(2)In such a case—

(a)the prosecutor or the Director (as the case may be) must give the court a statement of information within the period the court orders;

(b)section 16 applies accordingly (with appropriate modifications where the prosecutor or the Director applies under section 21);

(c)section 17 applies accordingly;

(d)section 18 applies as it applies in the circumstances mentioned in section 18(1).

Defendant abscondsE+W

27 Defendant convicted or committedE+W

(1)This section applies if the following two conditions are satisfied.

(2)The first condition is that a defendant absconds after—

(a)he is convicted of an offence or offences in proceedings before the Crown Court,

(b)he is committed to the Crown Court for sentence in respect of an offence or offences under section 3, 4 or 6 of the Sentencing Act, or

(c)he is committed to the Crown Court in respect of an offence or offences under section 70 below (committal with a view to a confiscation order being considered).

(3)The second condition is that—

(a)the prosecutor or the Director applies to the Crown Court to proceed under this section, and

(b)the court believes it is appropriate for it to do so.

(4)If this section applies the court must proceed under section 6 in the same way as it must proceed if the two conditions there mentioned are satisfied; but this is subject to subsection (5).

(5)If the court proceeds under section 6 as applied by this section, this Part has effect with these modifications—

(a)any person the court believes is likely to be affected by an order under section 6 is entitled to appear before the court and make representations;

(b)the court must not make an order under section 6 unless the prosecutor or the Director (as the case may be) has taken reasonable steps to contact the defendant;

(c)section 6(9) applies as if the reference to subsection (2) were to subsection (2) of this section;

(d)sections 10, 16(4), 17 and 18 must be ignored;

(e)sections 19, 20 and 21 must be ignored while the defendant is still an absconder.

(6)Once the defendant ceases to be an absconder section 19 has effect as if subsection (1)(a) read—

(a)at a time when the first condition in section 27 was satisfied the court did not proceed under section 6,.

(7)If the court does not believe it is appropriate for it to proceed under this section, once the defendant ceases to be an absconder section 19 has effect as if subsection (1)(b) read—

(b)there is evidence which was not available to the prosecutor or the Director on the relevant date,.

28 Defendant neither convicted nor acquittedE+W

(1)This section applies if the following two conditions are satisfied.

(2)The first condition is that—

(a)proceedings for an offence or offences are started against a defendant but are not concluded,

(b)he absconds, and

(c)the period of two years (starting with the day the court believes he absconded) has ended.

(3)The second condition is that—

(a)the prosecutor or the Director applies to the Crown Court to proceed under this section, and

(b)the court believes it is appropriate for it to do so.

(4)If this section applies the court must proceed under section 6 in the same way as it must proceed if the two conditions there mentioned are satisfied; but this is subject to subsection (5).

(5)If the court proceeds under section 6 as applied by this section, this Part has effect with these modifications—

(a)any person the court believes is likely to be affected by an order under section 6 is entitled to appear before the court and make representations;

(b)the court must not make an order under section 6 unless the prosecutor or the Director (as the case may be) has taken reasonable steps to contact the defendant;

(c)section 6(9) applies as if the reference to subsection (2) were to subsection (2) of this section;

(d)sections 10, 16(4) and 17 to 20 must be ignored;

(e)section 21 must be ignored while the defendant is still an absconder.

(6)Once the defendant has ceased to be an absconder section 21 has effect as if references to the date of conviction were to—

(a)the day when proceedings for the offence concerned were started against the defendant, or

(b)if there are two or more offences and proceedings for them were started on different days, the earliest of those days.

(7)If—

(a)the court makes an order under section 6 as applied by this section, and

(b)the defendant is later convicted in proceedings before the Crown Court of the offence (or any of the offences) concerned,

section 6 does not apply so far as that conviction is concerned.

29 Variation of orderE+W

(1)This section applies if—

(a)the court makes a confiscation order under section 6 as applied by section 28,

(b)the defendant ceases to be an absconder,

(c)he is convicted of an offence (or any of the offences) mentioned in section 28(2)(a),

(d)he believes that the amount required to be paid was too large (taking the circumstances prevailing when the amount was found for the purposes of the order), and

(e)before the end of the relevant period he applies to the Crown Court to consider the evidence on which his belief is based.

(2)If (after considering the evidence) the court concludes that the defendant’s belief is well founded—

(a)it must find the amount which should have been the amount required to be paid (taking the circumstances prevailing when the amount was found for the purposes of the order), and

(b)it may vary the order by substituting for the amount required to be paid such amount as it believes is just.

(3)The relevant period is the period of 28 days starting with—

(a)the date on which the defendant was convicted of the offence mentioned in section 28(2)(a), or

(b)if there are two or more offences and the convictions were on different dates, the date of the latest.

(4)But in a case where section 28(2)(a) applies to more than one offence the court must not make an order under this section unless it is satisfied that there is no possibility of any further proceedings being taken or continued in relation to any such offence in respect of which the defendant has not been convicted.

30 Discharge of orderE+W

(1)Subsection (2) applies if—

(a)the court makes a confiscation order under section 6 as applied by section 28,

(b)the defendant is later tried for the offence or offences concerned and acquitted on all counts, and

(c)he applies to the Crown Court to discharge the order.

(2)In such a case the court must discharge the order.

(3)Subsection (4) applies if—

(a)the court makes a confiscation order under section 6 as applied by section 28,

(b)the defendant ceases to be an absconder,

(c)subsection (1)(b) does not apply, and

(d)he applies to the Crown Court to discharge the order.

(4)In such a case the court may discharge the order if it finds that—

(a)there has been undue delay in continuing the proceedings mentioned in section 28(2), or

(b)the prosecutor does not intend to proceed with the prosecution.

(5)If the court discharges a confiscation order under this section it may make such a consequential or incidental order as it believes is appropriate.

AppealsE+W

31 Appeal by prosecutor or DirectorE+W

(1)If the Crown Court makes a confiscation order the prosecutor or the Director may appeal to the Court of Appeal in respect of the order.

(2)If the Crown Court decides not to make a confiscation order the prosecutor or the Director may appeal to the Court of Appeal against the decision.

(3)Subsections (1) and (2) do not apply to an order or decision made by virtue of section 19, 20, 27 or 28.

32 Court’s powers on appealE+W

(1)On an appeal under section 31(1) the Court of Appeal may confirm, quash or vary the confiscation order.

(2)On an appeal under section 31(2) the Court of Appeal may confirm the decision, or if it believes the decision was wrong it may—

(a)itself proceed under section 6 (ignoring subsections (1) to (3)), or

(b)direct the Crown Court to proceed afresh under section 6.

(3)In proceeding afresh in pursuance of this section the Crown Court must comply with any directions the Court of Appeal may make.

(4)If a court makes or varies a confiscation order under this section or in pursuance of a direction under this section it must—

(a)have regard to any fine imposed on the defendant in respect of the offence (or any of the offences) concerned;

(b)have regard to any order which falls within section 13(3) and has been made against him in respect of the offence (or any of the offences) concerned, unless the order has already been taken into account by a court in deciding what is the free property held by the defendant for the purposes of section 9.

(5)If the Court of Appeal proceeds under section 6 or the Crown Court proceeds afresh under that section in pursuance of a direction under this section subsections (6) to (10) apply.

(6)If a court has already sentenced the defendant for the offence (or any of the offences) concerned, section 6 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

(7)If an order has been made against the defendant in respect of the offence (or any of the offences) concerned under section 130 of the Sentencing Act (compensation orders)—

(a)the court must have regard to it, and

(b)section 13(5) and (6) above do not apply.

(8)Section 8(2) does not apply, and the rules applying instead are that the court must—

(a)take account of conduct occurring before the relevant date;

(b)take account of property obtained before that date;

(c)take account of property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

(9)In section 10—

(a)the first and second assumptions do not apply with regard to property first held by the defendant on or after the relevant date;

(b)the third assumption does not apply with regard to expenditure incurred by him on or after that date;

(c)the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

(10)Section 26 applies as it applies in the circumstances mentioned in subsection (1) of that section.

(11)The relevant date is the date on which the Crown Court decided not to make a confiscation order.

33 Appeal to House of LordsE+W

(1)An appeal lies to the House of Lords from a decision of the Court of Appeal on an appeal under section 31.

(2)An appeal under this section lies at the instance of—

(a)the defendant or the prosecutor (if the prosecutor appealed under section 31);

(b)the defendant or the Director (if the Director appealed under section 31).

(3)On an appeal from a decision of the Court of Appeal to confirm, vary or make a confiscation order the House of Lords may confirm, quash or vary the order.

(4)On an appeal from a decision of the Court of Appeal to confirm the decision of the Crown Court not to make a confiscation order or from a decision of the Court of Appeal to quash a confiscation order the House of Lords may—

(a)confirm the decision, or

(b)direct the Crown Court to proceed afresh under section 6 if it believes the decision was wrong.

(5)In proceeding afresh in pursuance of this section the Crown Court must comply with any directions the House of Lords may make.

(6)If a court varies a confiscation order under this section or makes a confiscation order in pursuance of a direction under this section it must—

(a)have regard to any fine imposed on the defendant in respect of the offence (or any of the offences) concerned;

(b)have regard to any order which falls within section 13(3) and has been made against him in respect of the offence (or any of the offences) concerned, unless the order has already been taken into account by a court in deciding what is the free property held by the defendant for the purposes of section 9.

(7)If the Crown Court proceeds afresh under section 6 in pursuance of a direction under this section subsections (8) to (12) apply.

(8)If a court has already sentenced the defendant for the offence (or any of the offences) concerned, section 6 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

(9)If an order has been made against the defendant in respect of the offence (or any of the offences) concerned under section 130 of the Sentencing Act (compensation orders)—

(a)the Crown Court must have regard to it, and

(b)section 13(5) and (6) above do not apply.

(10)Section 8(2) does not apply, and the rules applying instead are that the Crown Court must—

(a)take account of conduct occurring before the relevant date;

(b)take account of property obtained before that date;

(c)take account of property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

(11)In section 10—

(a)the first and second assumptions do not apply with regard to property first held by the defendant on or after the relevant date;

(b)the third assumption does not apply with regard to expenditure incurred by him on or after that date;

(c)the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

(12)Section 26 applies as it applies in the circumstances mentioned in subsection (1) of that section.

(13)The relevant date is—

(a)in a case where the Crown Court made a confiscation order which was quashed by the Court of Appeal, the date on which the Crown Court made the order;

(b)in any other case, the date on which the Crown Court decided not to make a confiscation order.

Enforcement authorityE+W

34 Enforcement authorityE+W

(1)Subsection (2) applies if a court makes a confiscation order and any of the following paragraphs applies—

(a)the court proceeded under section 6 after being asked to do so by the Director;

(b)the court proceeded under section 6 by virtue of an application by the Director under section 19, 20, 27 or 28;

(c)the court proceeded under section 6 as a result of an appeal by the Director under section 31(2) or 33;

(d)before the court made the order the Director applied to the court to appoint him as the enforcement authority for the order.

(2)In any such case the court must appoint the Director as the enforcement authority for the order.

Enforcement as fines etcE+W

35 Director not appointed as enforcement authorityE+W

(1)This section applies if a court—

(a)makes a confiscation order, and

(b)does not appoint the Director as the enforcement authority for the order.

(2)Sections 139(2) to (4) and (9) and 140(1) to (4) of the Sentencing Act (functions of court as to fines and enforcing fines) apply as if the amount ordered to be paid were a fine imposed on the defendant by the court making the confiscation order.

(3)In the application of Part 3 of the Magistrates’ Courts Act 1980 (c. 43) to an amount payable under a confiscation order—

(a)ignore section 75 of that Act (power to dispense with immediate payment);

(b)such an amount is not a sum adjudged to be paid by a conviction for the purposes of section 81 (enforcement of fines imposed on young offenders) or a fine for the purposes of section 85 (remission of fines) of that Act;

(c)in section 87 of that Act ignore subsection (3) (inquiry into means).

36 Director appointed as enforcement authorityE+W

(1)This section applies if a court—

(a)makes a confiscation order, and

(b)appoints the Director as the enforcement authority for the order.

(2)Section 139(2) to (4) and (9) of the Sentencing Act (functions of court as to fines) applies as if the amount ordered to be paid were a fine imposed on the defendant by the court making the confiscation order.

37 Director’s application for enforcementE+W

(1)If the Director believes that the conditions set out in subsection (2) are satisfied he may make an ex parte application to the Crown Court for the issue of a summons against the defendant.

(2)The conditions are that—

(a)a confiscation order has been made;

(b)the Director has been appointed as the enforcement authority for the order;

(c)because of the defendant’s wilful refusal or culpable neglect the order is not satisfied;

(d)the order is not subject to appeal;

(e)the Director has done all that is practicable (apart from this section) to enforce the order.

(3)If it appears to the Crown Court that the conditions are satisfied it may issue a summons ordering the defendant to appear before the court at the time and place specified in the summons.

(4)If the defendant fails to appear before the Crown Court in pursuance of the summons the court may issue a warrant for his arrest.

(5)If—

(a)the defendant appears before the Crown Court in pursuance of the summons or of a warrant issued under subsection (4), and

(b)the court is satisfied that the conditions set out in subsection (2) are satisfied,

it may issue a warrant committing the defendant to prison or detention for default in payment of the amount ordered to be paid by the confiscation order.

(6)Subsection (7) applies if the amount remaining to be paid under the confiscation order when the warrant under subsection (5) is issued is less than the amount ordered to be paid.

(7)In such a case the court must substitute for the term of imprisonment or detention fixed in respect of the order under section 139(2) of the Sentencing Act such term as bears to the original term the same proportion as the amount remaining to be paid bears to the amount ordered to be paid.

(8)Subsections (9) and (10) apply if—

(a)the defendant has been committed to prison or detention in pursuance of a warrant issued under subsection (5), and

(b)a payment is made in respect of some or all of the amount remaining to be paid under the confiscation order.

(9)If the payment is for the whole amount remaining to be paid the defendant must be released unless he is in custody for another reason.

(10)If the payment is for less than that amount, the period of commitment is reduced so that it bears to the term fixed under section 139(2) of the Sentencing Act the same proportion as the amount remaining to be paid bears to the amount ordered to be paid.

38 Provisions about imprisonment or detentionE+W

(1)Subsection (2) applies if—

(a)a warrant committing the defendant to prison or detention is issued for a default in payment of an amount ordered to be paid under a confiscation order in respect of an offence or offences, and

(b)at the time the warrant is issued the defendant is liable to serve a term of custody in respect of the offence (or any of the offences).

(2)In such a case the term of imprisonment or of detention under section 108 of the Sentencing Act (detention of persons aged 18 to 20 for default) to be served in default of payment of the amount does not begin to run until after the term mentioned in subsection (1)(b) above.

(3)The reference in subsection (1)(b) to the term of custody the defendant is liable to serve in respect of the offence (or any of the offences) is a reference to the term of imprisonment, or detention in a young offender institution, which he is liable to serve in respect of the offence (or any of the offences).

(4)For the purposes of subsection (3) consecutive terms and terms which are wholly or partly concurrent must be treated as a single term and the following must be ignored—

(a)any sentence suspended under section 118(1) of the Sentencing Act which has not taken effect at the time the warrant is issued;

(b)in the case of a sentence of imprisonment passed with an order under section 47(1) of the Criminal Law Act 1977 (c. 45) (sentences of imprisonment partly served and partly suspended) any part of the sentence which the defendant has not at that time been required to serve in prison;

(c)any term of imprisonment or detention fixed under section 139(2) of the Sentencing Act (term to be served in default of payment of fine etc) for which a warrant committing the defendant to prison or detention has not been issued at that time.

(5)If 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.

39 Reconsideration etc: variation of prison termE+W

(1)Subsection (2) applies if—

(a)a court varies a confiscation order under section 21, 22, 23, 29, 32 or 33,

(b)the effect of the variation is to vary the maximum period applicable in relation to the order under section 139(4) of the Sentencing Act, and

(c)the result is that that maximum period is less than the term of imprisonment or detention fixed in respect of the order under section 139(2) of the Sentencing Act.

(2)In such a case the court must fix a reduced term of imprisonment or detention in respect of the confiscation order under section 139(2) of the Sentencing Act in place of the term previously fixed.

(3)Subsection (4) applies if paragraphs (a) and (b) of subsection (1) apply but paragraph (c) does not.

(4)In such a case the court may amend the term of imprisonment or detention fixed in respect of the confiscation order under section 139(2) of the Sentencing Act.

(5)If the effect of section 12 is to increase the maximum period applicable in relation to a confiscation order under section 139(4) of the Sentencing Act, on the application of the appropriate person the Crown Court may amend the term of imprisonment or detention fixed in respect of the order under section 139(2) of that Act.

(6)The appropriate person is—

(a)the Director, if he was appointed as the enforcement authority for the order under section 34;

(b)the prosecutor, in any other case.

Restraint ordersE+W

40 Conditions for exercise of powersE+W

(1)The Crown Court may exercise the powers conferred by section 41 if any of the following conditions is satisfied.

(2)The first condition is that—

(a)a criminal investigation has been started in England and Wales with regard to an offence, and

(b)there is reasonable cause to believe that the alleged offender has benefited from his criminal conduct.

(3)The second condition is that—

(a)proceedings for an offence have been started in England and Wales and not concluded, and

(b)there is reasonable cause to believe that the defendant has benefited from his criminal conduct.

(4)The third condition is that—

(a)an application by the prosecutor or the Director has been made under section 19, 20, 27 or 28 and not concluded, or the court believes that such an application is to be made, and

(b)there is reasonable cause to believe that the defendant has benefited from his criminal conduct.

(5)The fourth condition is that—

(a)an application by the prosecutor or the Director has been made under section 21 and not concluded, or the court believes that such an application is to be made, and

(b)there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the defendant’s benefit exceeds the relevant amount (as defined in that section).

(6)The fifth condition is that—

(a)an application by the prosecutor or the Director has been made under section 22 and not concluded, or the court believes that such an application is to be made, and

(b)there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the available amount exceeds the relevant amount (as defined in that section).

(7)The second condition is not satisfied if the court believes that—

(a)there has been undue delay in continuing the proceedings, or

(b)the prosecutor does not intend to proceed.

(8)If an application mentioned in the third, fourth or fifth condition has been made the condition is not satisfied if the court believes that—

(a)there has been undue delay in continuing the application, or

(b)the prosecutor or the Director (as the case may be) does not intend to proceed.

(9)If the first condition is satisfied—

(a)references in this Part to the defendant are to the alleged offender;

(b)references in this Part to the prosecutor are to the person the court believes is to have conduct of any proceedings for the offence;

(c)section 77(9) has effect as if proceedings for the offence had been started against the defendant when the investigation was started.

41 Restraint ordersE+W

(1)If any condition set out in section 40 is satisfied the Crown Court may make an order (a restraint order) prohibiting any specified person from dealing with any realisable property held by him.

(2)A restraint order may provide that it applies—

(a)to all realisable property held by the specified person whether or not the property is described in the order;

(b)to realisable property transferred to the specified person after the order is made.

(3)A restraint order may be made subject to exceptions, and an exception may in particular—

(a)make provision for reasonable living expenses and reasonable legal expenses;

(b)make provision for the purpose of enabling any person to carry on any trade, business, profession or occupation;

(c)be made subject to conditions.

(4)But an exception to a restraint order must not make provision for any legal expenses which—

(a)relate to an offence which falls within subsection (5), and

(b)are incurred by the defendant or by a recipient of a tainted gift.

(5)These offences fall within this subsection—

(a)the offence mentioned in section 40(2) or (3), if the first or second condition (as the case may be) is satisfied;

(b)the offence (or any of the offences) concerned, if the third, fourth or fifth condition is satisfied.

(6)Subsection (7) applies if—

(a)a court makes a restraint order, and

(b)the applicant for the order applies to the court to proceed under subsection (7) (whether as part of the application for the restraint order or at any time afterwards).

(7)The court may make such order as it believes is appropriate for the purpose of ensuring that the restraint order is effective.

(8)A restraint order does not affect property for the time being subject to a charge under any of these provisions—

(a)section 9 of the Drug Trafficking Offences Act 1986 (c. 32);

(b)section 78 of the Criminal Justice Act 1988 (c. 33);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));

(d)section 27 of the Drug Trafficking Act 1994 (c. 37);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

(9)Dealing with property includes removing it from England and Wales.

42 Application, discharge and variationE+W

(1)A restraint order—

(a)may be made only on an application by an applicant falling within subsection (2);

(b)may be made on an ex parte application to a judge in chambers.

(2)These applicants fall within this subsection—

(a)the prosecutor;

(b)the Director;

(c)an accredited financial investigator.

(3)An application to discharge or vary a restraint order or an order under section 41(7) may be made to the Crown Court by—

(a)the person who applied for the order;

(b)any person affected by the order.

(4)Subsections (5) to (7) apply to an application under subsection (3).

(5)The court—

(a)may discharge the order;

(b)may vary the order.

(6)If the condition in section 40 which was satisfied was that proceedings were started or an application was made, the court must discharge the order on the conclusion of the proceedings or of the application (as the case may be).

(7)If the condition in section 40 which was satisfied was that an investigation was started or an application was to be made, the court must discharge the order if within a reasonable time proceedings for the offence are not started or the application is not made (as the case may be).

43 Appeal to Court of AppealE+W

(1)If on an application for a restraint order the court decides not to make one, the person who applied for the order may appeal to the Court of Appeal against the decision.

(2)If an application is made under section 42(3) in relation to a restraint order or an order under section 41(7) the following persons may appeal to the Court of Appeal in respect of the Crown Court’s decision on the application—

(a)the person who applied for the order;

(b)any person affected by the order.

(3)On an appeal under subsection (1) or (2) the Court of Appeal may—

(a)confirm the decision, or

(b)make such order as it believes is appropriate.

44 Appeal to House of LordsE+W

(1)An appeal lies to the House of Lords from a decision of the Court of Appeal on an appeal under section 43.

(2)An appeal under this section lies at the instance of any person who was a party to the proceedings before the Court of Appeal.

(3)On an appeal under this section the House of Lords may—

(a)confirm the decision of the Court of Appeal, or

(b)make such order as it believes is appropriate.

45 SeizureE+W

(1)If a restraint order is in force a constable or a customs officer may seize any realisable property to which it applies to prevent its removal from England and Wales.

(2)Property seized under subsection (1) must be dealt with in accordance with the directions of the court which made the order.

46 Hearsay evidenceE+W

(1)Evidence must not be excluded in restraint proceedings on the ground that it is hearsay (of whatever degree).

(2)Sections 2 to 4 of the Civil Evidence Act 1995 (c. 38) apply in relation to restraint proceedings as those sections apply in relation to civil proceedings.

(3)Restraint proceedings are proceedings—

(a)for a restraint order;

(b)for the discharge or variation of a restraint order;

(c)on an appeal under section 43 or 44.

(4)Hearsay is a statement which is made otherwise than by a person while giving oral evidence in the proceedings and which is tendered as evidence of the matters stated.

(5)Nothing in this section affects the admissibility of evidence which is admissible apart from this section.

47 SupplementaryE+W

(1)The registration Acts—

(a)apply in relation to restraint orders as they apply in relation to orders which affect land and are made by the court for the purpose of enforcing judgments or recognisances;

(b)apply in relation to applications for restraint orders as they apply in relation to other pending land actions.

(2)The registration Acts are—

(a)the Land Registration Act 1925 (c. 21);

(b)the Land Charges Act 1972 (c. 61);

(c)the Land Registration Act 2002 (c. 9).

(3)But no notice may be entered in the register of title under the Land Registration Act 2002 in respect of a restraint order.

(4)The person applying for a restraint order must be treated for the purposes of section 57 of the Land Registration Act 1925 (inhibitions) as a person interested in relation to any registered land to which—

(a)the application relates, or

(b)a restraint order made in pursuance of the application relates.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

Management receiversE+W

48 AppointmentE+W

(1)Subsection (2) applies if—

(a)the Crown Court makes a restraint order, and

(b)the applicant for the restraint order applies to the court to proceed under subsection (2) (whether as part of the application for the restraint order or at any time afterwards).

(2)The Crown Court may by order appoint a receiver in respect of any realisable property to which the restraint order applies.

49 PowersE+W

(1)If the court appoints a receiver under section 48 it may act under this section on the application of the person who applied for the restraint order.

(2)The court may by order confer on the receiver the following powers in relation to any realisable property to which the restraint order applies—

(a)power to take possession of the property;

(b)power to manage or otherwise deal with the property;

(c)power to start, carry on or defend any legal proceedings in respect of the property;

(d)power to realise so much of the property as is necessary to meet the receiver’s remuneration and expenses.

(3)The court may by order confer on the receiver power to enter any premises in England and Wales and to do any of the following—

(a)search for or inspect anything authorised by the court;

(b)make or obtain a copy, photograph or other record of anything so authorised;

(c)remove anything which the receiver is required or authorised to take possession of in pursuance of an order of the court.

(4)The court may by order authorise the receiver to do any of the following for the purpose of the exercise of his functions—

(a)hold property;

(b)enter into contracts;

(c)sue and be sued;

(d)employ agents;

(e)execute powers of attorney, deeds or other instruments;

(f)take any other steps the court thinks appropriate.

(5)The court may order any person who has possession of realisable property to which the restraint order applies to give possession of it to the receiver.

(6)The court—

(a)may order a person holding an interest in realisable property to which the restraint order applies to make to the receiver such payment as the court specifies in respect of a beneficial interest held by the defendant or the recipient of a tainted gift;

(b)may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

(7)Subsections (2), (5) and (6) do not apply to property for the time being subject to a charge under any of these provisions—

(a)section 9 of the Drug Trafficking Offences Act 1986 (c. 32);

(b)section 78 of the Criminal Justice Act 1988 (c. 33);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));

(d)section 27 of the Drug Trafficking Act 1994 (c. 37);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

(8)The court must not—

(a)confer the power mentioned in subsection (2)(b) or (d) in respect of property, or

(b)exercise the power conferred on it by subsection (6) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

(9)The court may order that a power conferred by an order under this section is subject to such conditions and exceptions as it specifies.

(10)Managing or otherwise dealing with property includes—

(a)selling the property or any part of it or interest in it;

(b)carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

(c)incurring capital expenditure in respect of the property.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

Enforcement receiversE+W

50 AppointmentE+W

(1)This section applies if—

(a)a confiscation order is made,

(b)it is not satisfied, and

(c)it is not subject to appeal.

(2)On the application of the prosecutor the Crown Court may by order appoint a receiver in respect of realisable property.

51 PowersE+W

(1)If the court appoints a receiver under section 50 it may act under this section on the application of the prosecutor.

(2)The court may by order confer on the receiver the following powers in relation to the realisable property—

(a)power to take possession of the property;

(b)power to manage or otherwise deal with the property;

(c)power to realise the property, in such manner as the court may specify;

(d)power to start, carry on or defend any legal proceedings in respect of the property.

(3)The court may by order confer on the receiver power to enter any premises in England and Wales and to do any of the following—

(a)search for or inspect anything authorised by the court;

(b)make or obtain a copy, photograph or other record of anything so authorised;

(c)remove anything which the receiver is required or authorised to take possession of in pursuance of an order of the court.

(4)The court may by order authorise the receiver to do any of the following for the purpose of the exercise of his functions—

(a)hold property;

(b)enter into contracts;

(c)sue and be sued;

(d)employ agents;

(e)execute powers of attorney, deeds or other instruments;

(f)take any other steps the court thinks appropriate.

(5)The court may order any person who has possession of realisable property to give possession of it to the receiver.

(6)The court—

(a)may order a person holding an interest in realisable property to make to the receiver such payment as the court specifies in respect of a beneficial interest held by the defendant or the recipient of a tainted gift;

(b)may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

(7)Subsections (2), (5) and (6) do not apply to property for the time being subject to a charge under any of these provisions—

(a)section 9 of the Drug Trafficking Offences Act 1986 (c. 32);

(b)section 78 of the Criminal Justice Act 1988 (c. 33);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));

(d)section 27 of the Drug Trafficking Act 1994 (c. 37);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

(8)The court must not—

(a)confer the power mentioned in subsection (2)(b) or (c) in respect of property, or

(b)exercise the power conferred on it by subsection (6) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

(9)The court may order that a power conferred by an order under this section is subject to such conditions and exceptions as it specifies.

(10)Managing or otherwise dealing with property includes—

(a)selling the property or any part of it or interest in it;

(b)carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

(c)incurring capital expenditure in respect of the property.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

Director’s receiversE+W

52 AppointmentE+W

(1)This section applies if—

(a)a confiscation order is made, and

(b)the Director is appointed as the enforcement authority for the order under section 34.

(2)But this section does not apply if—

(a)the confiscation order was made by the Court of Appeal, and

(b)when the Crown Court comes to proceed under this section the confiscation order has been satisfied.

(3)If this section applies the Crown Court must make an order for the appointment of a receiver in respect of realisable property.

(4)An order under subsection (3)—

(a)must confer power on the Director to nominate the person who is to be the receiver, and

(b)takes effect when the Director nominates that person.

(5)The Director must not nominate a person under subsection (4) unless at the time he does so the confiscation order—

(a)is not satisfied, and

(b)is not subject to appeal.

(6)A person nominated to be the receiver under subsection (4) may be—

(a)a member of the staff of the Agency;

(b)a person providing services under arrangements made by the Director.

(7)If this section applies section 50 does not apply.

53 PowersE+W

(1)If the court makes an order for the appointment of a receiver under section 52 it may act under this section on the application of the Director.

(2)The court may by order confer on the receiver the following powers in relation to the realisable property—

(a)power to take possession of the property;

(b)power to manage or otherwise deal with the property;

(c)power to realise the property, in such manner as the court may specify;

(d)power to start, carry on or defend any legal proceedings in respect of the property.

(3)The court may by order confer on the receiver power to enter any premises in England and Wales and to do any of the following—

(a)search for or inspect anything authorised by the court;

(b)make or obtain a copy, photograph or other record of anything so authorised;

(c)remove anything which the receiver is required or authorised to take possession of in pursuance of an order of the court.

(4)The court may by order authorise the receiver to do any of the following for the purpose of the exercise of his functions—

(a)hold property;

(b)enter into contracts;

(c)sue and be sued;

(d)employ agents;

(e)execute powers of attorney, deeds or other instruments;

(f)take any other steps the court thinks appropriate.

(5)The court may order any person who has possession of realisable property to give possession of it to the receiver.

(6)The court—

(a)may order a person holding an interest in realisable property to make to the receiver such payment as the court specifies in respect of a beneficial interest held by the defendant or the recipient of a tainted gift;

(b)may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

(7)Subsections (2), (5) and (6) do not apply to property for the time being subject to a charge under any of these provisions—

(a)section 9 of the Drug Trafficking Offences Act 1986 (c. 32);

(b)section 78 of the Criminal Justice Act 1988 (c. 33);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));

(d)section 27 of the Drug Trafficking Act 1994 (c. 37);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

(8)The court must not—

(a)confer the power mentioned in subsection (2)(b) or (c) in respect of property, or

(b)exercise the power conferred on it by subsection (6) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

(9)The court may order that a power conferred by an order under this section is subject to such conditions and exceptions as it specifies.

(10)Managing or otherwise dealing with property includes—

(a)selling the property or any part of it or interest in it;

(b)carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

(c)incurring capital expenditure in respect of the property.

Annotations: Help about Annotation
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

Application of sumsE+W

54 Enforcement receiversE+W

(1)This section applies to sums which are in the hands of a receiver appointed under section 50 if they are—

(a)the proceeds of the realisation of property under section 51;

(b)sums (other than those mentioned in paragraph (a)) in which the defendant holds an interest.

(2)The sums must be applied as follows—

(a)first, they must be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under this subsection by virtue of section 432;

(b)second, they must be applied in making any payments directed by the Crown Court;

(c)third, they must be applied on the defendant’s behalf towards satisfaction of the confiscation order.

(3)If the amount payable under the confiscation order has been fully paid and any sums remain in the receiver’s hands he must distribute them—

(a)among such persons who held (or hold) interests in the property concerned as the Crown Court directs, and

(b)in such proportions as it directs.

(4)Before making a direction under subsection (3) the court must give persons who held (or hold) interests in the property concerned a reasonable opportunity to make representations to it.

(5)For the purposes of subsections (3) and (4) the property concerned is—

(a)the property represented by the proceeds mentioned in subsection (1)(a);

(b)the sums mentioned in subsection (1)(b).

(6)The receiver applies sums as mentioned in subsection (2)(c) by paying them to the appropriate justices’ chief executive on account of the amount payable under the order.

(7)The appropriate justices’ chief executive is the one for the magistrates’ court responsible for enforcing the confiscation order as if the amount ordered to be paid were a fine.

55 Sums received by justices’ chief executiveE+W

(1)This section applies if a justices’ chief executive receives sums on account of the amount payable under a confiscation order (whether the sums are received under section 54 or otherwise).

(2)The chief executive’s receipt of the sums reduces the amount payable under the order, but he must apply the sums received as follows.

(3)First he must apply them in payment of such expenses incurred by a person acting as an insolvency practitioner as—

(a)are payable under this subsection by virtue of section 432, but

(b)are not already paid under section 54(2)(a).

(4)If the justices’ chief executive received the sums under section 54 he must next apply them—

(a)first, in payment of the remuneration and expenses of a receiver appointed under section 48, to the extent that they have not been met by virtue of the exercise by that receiver of a power conferred under section 49(2)(d);

(b)second, in payment of the remuneration and expenses of the receiver appointed under section 50.

(5)If a direction was made under section 13(6) for an amount of compensation to be paid out of sums recovered under the confiscation order, the justices’ chief executive must next apply the sums in payment of that amount.

(6)If any amount remains after the justices’ chief executive makes any payments required by the preceding provisions of this section, the amount must be treated for the purposes of section 60 of the Justices of the Peace Act 1997 (c. 25) (application of fines etc) as if it were a fine imposed by a magistrates’ court.

(7)Subsection (4) does not apply if the receiver is a member of the staff of the Crown Prosecution Service or of the Commissioners of Customs and Excise; and it is immaterial whether he is a permanent or temporary member or he is on secondment from elsewhere.

56 Director’s receiversE+W

(1)This section applies to sums which are in the hands of a receiver appointed under section 52 if they are—

(a)the proceeds of the realisation of property under section 53;

(b)sums (other than those mentioned in paragraph (a)) in which the defendant holds an interest.

(2)The sums must be applied as follows—

(a)first, they must be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under this subsection by virtue of section 432;

(b)second, they must be applied in making any payments directed by the Crown Court;

(c)third, they must be applied on the defendant’s behalf towards satisfaction of the confiscation order by being paid to the Director on account of the amount payable under it.

(3)If the amount payable under the confiscation order has been fully paid and any sums remain in the receiver’s hands he must distribute them—

(a)among such persons who held (or hold) interests in the property concerned as the Crown Court directs, and

(b)in such proportions as it directs.

(4)Before making a direction under subsection (3) the court must give persons who held (or hold) interests in the property concerned a reasonable opportunity to make representations to it.

(5)For the purposes of subsections (3) and (4) the property concerned is—

(a)the property represented by the proceeds mentioned in subsection (1)(a);

(b)the sums mentioned in subsection (1)(b).

57 Sums received by DirectorE+W

(1)This section applies if the Director receives sums on account of the amount payable under a confiscation order (whether the sums are received under section 56 or otherwise).

(2)The Director’s receipt of the sums reduces the amount payable under the order, but he must apply the sums received as follows.

(3)First he must apply them in payment of such expenses incurred by a person acting as an insolvency practitioner as—

(a)are payable under this subsection by virtue of section 432, but

(b)are not already paid under section 56(2)(a).

(4)If the Director received the sums under section 56 he must next apply them—

(a)first, in payment of the remuneration and expenses of a receiver appointed under section 48, to the extent that they have not been met by virtue of the exercise by that receiver of a power conferred under section 49(2)(d);

(b)second, in payment of the remuneration and expenses of the receiver appointed under section 52.

(5)If a direction was made under section 13(6) for an amount of compensation to be paid out of sums recovered under the confiscation order, the Director must next apply the sums in payment of that amount.

(6)Subsection (4) does not apply if the receiver is a member of the staff of the Agency or a person providing services under arrangements made by the Director.

RestrictionsE+W

58 Restraint ordersE+W

(1)Subsections (2) to (4) apply if a court makes a restraint order.

(2)No distress may be levied against any realisable property to which the order applies except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

(3)If the order applies to a tenancy of any premises, no landlord or other person to whom rent is payable may exercise a right within subsection (4) except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

(4)A right is within this subsection if it is a right of forfeiture by peaceable re-entry in relation to the premises in respect of any failure by the tenant to comply with any term or condition of the tenancy.

(5)If a court in which proceedings are pending in respect of any property is satisfied that a restraint order has been applied for or made in respect of the property, the court may either stay the proceedings or allow them to continue on any terms it thinks fit.

(6)Before exercising any power conferred by subsection (5), the court must give an opportunity to be heard to—

(a)the applicant for the restraint order, and

(b)any receiver appointed in respect of the property under section 48, 50 or 52.

59 Enforcement receiversE+W

(1)Subsections (2) to (4) apply if a court makes an order under section 50 appointing a receiver in respect of any realisable property.

(2)No distress may be levied against the property except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

(3)If the receiver is appointed in respect of a tenancy of any premises, no landlord or other person to whom rent is payable may exercise a right within subsection (4) except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

(4)A right is within this subsection if it is a right of forfeiture by peaceable re-entry in relation to the premises in respect of any failure by the tenant to comply with any term or condition of the tenancy.

(5)If a court in which proceedings are pending in respect of any property is satisfied that an order under section 50 appointing a receiver in respect of the property has been applied for or made, the court may either stay the proceedings or allow them to continue on any terms it thinks fit.

(6)Before exercising any power conferred by subsection (5), the court must give an opportunity to be heard to—

(a)the prosecutor, and

(b)the receiver (if the order under section 50 has been made).

60 Director’s receiversE+W

(1)Subsections (2) to (4) apply if—

(a)the Crown Court has made an order under section 52 for the appointment of a receiver in respect of any realisable property, and

(b)the order has taken effect.

(2)No distress may be levied against the property except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

(3)If the order is for the appointment of a receiver in respect of a tenancy of any premises, no landlord or other person to whom rent is payable may exercise a right within subsection (4) except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

(4)A right is within this subsection if it is a right of forfeiture by peaceable re-entry in relation to the premises in respect of any failure by the tenant to comply with any term or condition of the tenancy.

(5)If a court (whether the Crown Court or any other court) in which proceedings are pending in respect of any property is satisfied that an order under section 52 for the appointment of a receiver in respect of the property has taken effect, the court may either stay the proceedings or allow them to continue on any terms it thinks fit.

(6)Before exercising any power conferred by subsection (5), the court must give an opportunity to be heard to—

(a)the Director, and

(b)the receiver.

Receivers: further provisionsE+W

61 ProtectionE+W

If a receiver appointed under section 48, 50 or 52—

(a)takes action in relation to property which is not realisable property,

(b)would be entitled to take the action if it were realisable property, and

(c)believes on reasonable grounds that he is entitled to take the action,

he is not liable to any person in respect of any loss or damage resulting from the action, except so far as the loss or damage is caused by his negligence.

62 Further applicationsE+W

(1)This section applies to a receiver appointed under section 48, 50 or 52.

(2)The receiver may apply to the Crown Court for an order giving directions as to the exercise of his powers.

(3)The following persons may apply to the Crown Court—

(a)any person affected by action taken by the receiver;

(b)any person who may be affected by action the receiver proposes to take.

(4)On an application under this section the court may make such order as it believes is appropriate.

63 Discharge and variationE+W

(1)The following persons may apply to the Crown Court to vary or discharge an order made under any of sections 48 to 53—

(a)the receiver;

(b)the person who applied for the order or (if the order was made under section 52 or 53) the Director;

(c)any person affected by the order.

(2)On an application under this section the court—

(a)may discharge the order;

(b)may vary the order.

(3)But in the case of an order under section 48 or 49—

(a)if the condition in section 40 which was satisfied was that proceedings were started or an application was made, the court must discharge the order on the conclusion of the proceedings or of the application (as the case may be);

(b)if the condition which was satisfied was that an investigation was started or an application was to be made, the court must discharge the order if within a reasonable time proceedings for the offence are not started or the application is not made (as the case may be).

64 Management receivers: dischargeE+W

(1)This section applies if—

(a)a receiver stands appointed under section 48 in respect of realisable property (the management receiver), and

(b)the court appoints a receiver under section 50 or makes an order for the appointment of a receiver under section 52.

(2)The court must order the management receiver to transfer to the other receiver all property held by the management receiver by virtue of the powers conferred on him by section 49.

(3)But in a case where the court makes an order under section 52 its order under subsection (2) above does not take effect until the order under section 52 takes effect.

(4)Subsection (2) does not apply to property which the management receiver holds by virtue of the exercise by him of his power under section 49(2)(d).

(5)If the management receiver complies with an order under subsection (2) he is discharged—

(a)from his appointment under section 48;

(b)from any obligation under this Act arising from his appointment.

(6)If this section applies the court may make such a consequential or incidental order as it believes is appropriate.

65 Appeal to Court of AppealE+W

(1)If on an application for an order under any of sections 48 to 51 or section 53 the court decides not to make one, the person who applied for the order may appeal to the Court of Appeal against the decision.

(2)If the court makes an order under any of sections 48 to 51 or section 53, the following persons may appeal to the Court of Appeal in respect of the court’s decision—

(a)the person who applied for the order;

(b)any person affected by the order.

(3)If on an application for an order under section 62 the court decides not to make one, the person who applied for the order may appeal to the Court of Appeal against the decision.

(4)If the court makes an order under section 62, the following persons may appeal to the Court of Appeal in respect of the court’s decision—

(a)the person who applied for the order;

(b)any person affected by the order;

(c)the receiver.

(5)The following persons may appeal to the Court of Appeal against a decision of the court on an application under section 63—

(a)the person who applied for the order in respect of which the application was made or (if the order was made under section 52 or 53) the Director;

(b)any person affected by the court’s decision;

(c)the receiver.

(6)On an appeal under this section the Court of Appeal may—

(a)confirm the decision, or

(b)make such order as it believes is appropriate.

66 Appeal to House of LordsE+W

(1)An appeal lies to the House of Lords from a decision of the Court of Appeal on an appeal under section 65.

(2)An appeal under this section lies at the instance of any person who was a party to the proceedings before the Court of Appeal.

(3)On an appeal under this section the House of Lords may—

(a)confirm the decision of the Court of Appeal, or

(b)make such order as it believes is appropriate.

Seized moneyE+W

67 Seized moneyE+W

(1)This section applies to money which—

(a)is held by a person, and

(b)is held in an account maintained by him with a bank or a building society.

(2)This section also applies to money which is held by a person and which—

(a)has been seized by a constable under section 19 of the Police and Criminal Evidence Act 1984 (c. 60) (general power of seizure etc), and

(b)is held in an account maintained by a police force with a bank or a building society.

(3)This section also applies to money which is held by a person and which—

(a)has been seized by a customs officer under section 19 of the 1984 Act as applied by order made under section 114(2) of that Act, and

(b)is held in an account maintained by the Commissioners of Customs and Excise with a bank or a building society.

(4)This section applies if the following conditions are satisfied—

(a)a restraint order has effect in relation to money to which this section applies;

(b)a confiscation order is made against the person by whom the money is held;

(c)the Director has not been appointed as the enforcement authority for the confiscation order;

(d)a receiver has not been appointed under section 50 in relation to the money;

(e)any period allowed under section 11 for payment of the amount ordered to be paid under the confiscation order has ended.

(5)In such a case a magistrates’ court may order the bank or building society to pay the money to the justices’ chief executive for the court on account of the amount payable under the confiscation order.

(6)If a bank or building society fails to comply with an order under subsection (5)—

(a)the magistrates’ court may order it to pay an amount not exceeding £5,000, and

(b)for the purposes of the Magistrates’ Courts Act 1980 (c. 43) the sum is to be treated as adjudged to be paid by a conviction of the court.

(7)In order to take account of changes in the value of money the Secretary of State may by order substitute another sum for the sum for the time being specified in subsection (6)(a).

(8)For the purposes of this section—

(a)a bank is a deposit-taking business within the meaning of the Banking Act 1987 (c. 22);

(b)building society” has the same meaning as in the Building Societies Act 1986 (c. 53).

Financial investigatorsE+W

68 Applications and appealsE+W

(1)Subsections (2) and (3) apply to—

(a)an application under section 41, 42, 48, 49 or 63;

(b)an appeal under section 43, 44, 65 or 66.

(2)An accredited financial investigator must not make such an application or bring such an appeal unless he falls within subsection (3).

(3)An accredited financial investigator falls within this subsection if he is one of the following or is authorised for the purposes of this section by one of the following—

(a)a police officer who is not below the rank of superintendent,

(b)a customs officer who is not below such grade as is designated by the Commissioners of Customs and Excise as equivalent to that rank,

(c)an accredited financial investigator who falls within a description specified in an order made for the purposes of this paragraph by the Secretary of State under section 453.

(4)If such an application is made or appeal brought by an accredited financial investigator any subsequent step in the application or appeal or any further application or appeal relating to the same matter may be taken, made or brought by a different accredited financial investigator who falls within subsection (3).

(5)If—

(a)an application for a restraint order is made by an accredited financial investigator, and

(b)a court is required under section 58(6) to give the applicant for the order an opportunity to be heard,

the court may give the opportunity to a different accredited financial investigator who falls within subsection (3).

Exercise of powersE+W

69 Powers of court and receiverE+W

(1)This section applies to—

(a)the powers conferred on a court by sections 41 to 60 and sections 62 to 67;

(b)the powers of a receiver appointed under section 48, 50 or 52.

(2)The powers—

(a)must be exercised with a view to the value for the time being of realisable property being made available (by the property’s realisation) for satisfying any confiscation order that has been or may be made against the defendant;

(b)must be exercised, in a case where a confiscation order has not been made, with a view to securing that there is no diminution in the value of realisable property;

(c)must be exercised without taking account of any obligation of the defendant or a recipient of a tainted gift if the obligation conflicts with the object of satisfying any confiscation order that has been or may be made against the defendant;

(d)may be exercised in respect of a debt owed by the Crown.

(3)Subsection (2) has effect subject to the following rules—

(a)the powers must be exercised with a view to allowing a person other than the defendant or a recipient of a tainted gift to retain or recover the value of any interest held by him;

(b)in the case of realisable property held by a recipient of a tainted gift, the powers must be exercised with a view to realising no more than the value for the time being of the gift;

(c)in a case where a confiscation order has not been made against the defendant, property must not be sold if the court so orders under subsection (4).

(4)If on an application by the defendant, or by the recipient of a tainted gift, the court decides that property cannot be replaced it may order that it must not be sold.

(5)An order under subsection (4) may be revoked or varied.

CommittalE+W

70 Committal by magistrates’ courtE+W

(1)This section applies if—

(a)a defendant is convicted of an offence by a magistrates’ court, and

(b)the prosecutor asks the court to commit the defendant to the Crown Court with a view to a confiscation order being considered under section 6.

(2)In such a case the magistrates’ court—

(a)must commit the defendant to the Crown Court in respect of the offence, and

(b)may commit him to the Crown Court in respect of any other offence falling within subsection (3).

(3)An offence falls within this subsection if—

(a)the defendant has been convicted of it by the magistrates’ court or any other court, and

(b)the magistrates’ court has power to deal with him in respect of it.

(4)If a committal is made under this section in respect of an offence or offences—

(a)section 6 applies accordingly, and

(b)the committal operates as a committal of the defendant to be dealt with by the Crown Court in accordance with section 71.

(5)If a committal is made under this section in respect of an offence for which (apart from this section) the magistrates’ court could have committed the defendant for sentence under section 3(2) of the Sentencing Act (offences triable either way) the court must state whether it would have done so.

(6)A committal under this section may be in custody or on bail.

71 Sentencing by Crown CourtE+W

(1)If a defendant is committed to the Crown Court under section 70 in respect of an offence or offences, this section applies (whether or not the court proceeds under section 6).

(2)In the case of an offence in respect of which the magistrates’ court has stated under section 70(5) that it would have committed the defendant for sentence, the Crown Court—

(a)must inquire into the circumstances of the case, and

(b)may deal with the defendant in any way in which it could deal with him if he had just been convicted of the offence on indictment before it.

(3)In the case of any other offence the Crown Court—

(a)must inquire into the circumstances of the case, and

(b)may deal with the defendant in any way in which the magistrates’ court could deal with him if it had just convicted him of the offence.

CompensationE+W

72 Serious defaultE+W

(1)If the following three conditions are satisfied the Crown Court may order the payment of such compensation as it believes is just.

(2)The first condition is satisfied if a criminal investigation has been started with regard to an offence and proceedings are not started for the offence.

(3)The first condition is also satisfied if proceedings for an offence are started against a person and—

(a)they do not result in his conviction for the offence, or

(b)he is convicted of the offence but the conviction is quashed or he is pardoned in respect of it.

(4)If subsection (2) applies the second condition is that—

(a)in the criminal investigation there has been a serious default by a person mentioned in subsection (9), and

(b)the investigation would not have continued if the default had not occurred.

(5)If subsection (3) applies the second condition is that—

(a)in the criminal investigation with regard to the offence or in its prosecution there has been a serious default by a person who is mentioned in subsection (9), and

(b)the proceedings would not have been started or continued if the default had not occurred.

(6)The third condition is that an application is made under this section by a person who held realisable property and has suffered loss in consequence of anything done in relation to it by or in pursuance of an order under this Part.

(7)The offence referred to in subsection (2) may be one of a number of offences with regard to which the investigation is started.

(8)The offence referred to in subsection (3) may be one of a number of offences for which the proceedings are started.

(9)Compensation under this section is payable to the applicant and—

(a)if the person in default was or was acting as a member of a police force, the compensation is payable out of the police fund from which the expenses of that force are met;

(b)if the person in default was a member of the Crown Prosecution Service or was acting on its behalf, the compensation is payable by the Director of Public Prosecutions;

(c)if the person in default was a member of the Serious Fraud Office, the compensation is payable by the Director of that Office;

(d)if the person in default was a customs officer, the compensation is payable by the Commissioners of Customs and Excise;

(e)if the person in default was an officer of the Commissioners of Inland Revenue, the compensation is payable by those Commissioners.

73 Order varied or dischargedE+W

(1)This section applies if—

(a)the court varies a confiscation order under section 29 or discharges one under section 30, and

(b)an application is made to the Crown Court by a person who held realisable property and has suffered loss as a result of the making of the order.

(2)The court may order the payment of such compensation as it believes is just.

(3)Compensation under this section is payable—

(a)to the applicant;

(b)by the Lord Chancellor.

Enforcement abroadE+W

74 Enforcement abroadE+W

(1)This section applies if—

(a)any of the conditions in section 40 is satisfied,

(b)the prosecutor or the Director believes that realisable property is situated in a country or territory outside the United Kingdom (the receiving country), and

(c)the prosecutor or the Director (as the case may be) sends a request for assistance to the Secretary of State with a view to it being forwarded under this section.

(2)In a case where no confiscation order has been made, a request for assistance is a request to the government of the receiving country to secure that any person is prohibited from dealing with realisable property.

(3)In a case where a confiscation order has been made and has not been satisfied, discharged or quashed, a request for assistance is a request to the government of the receiving country to secure that—

(a)any person is prohibited from dealing with realisable property;

(b)realisable property is realised and the proceeds are applied in accordance with the law of the receiving country.

(4)No request for assistance may be made for the purposes of this section in a case where a confiscation order has been made and has been satisfied, discharged or quashed.

(5)If the Secretary of State believes it is appropriate to do so he may forward the request for assistance to the government of the receiving country.

(6)If property is realised in pursuance of a request under subsection (3) the amount ordered to be paid under the confiscation order must be taken to be reduced by an amount equal to the proceeds of realisation.

(7)A certificate purporting to be issued by or on behalf of the requested government is admissible as evidence of the facts it states if it states—

(a)that property has been realised in pursuance of a request under subsection (3),

(b)the date of realisation, and

(c)the proceeds of realisation.

(8)If the proceeds of realisation made in pursuance of a request under subsection (3) are expressed in a currency other than sterling, they must be taken to be the sterling equivalent calculated in accordance with the rate of exchange prevailing at the end of the day of realisation.

InterpretationE+W

75 Criminal lifestyleE+W

(1)A defendant has a criminal lifestyle if (and only if) the following condition is satisfied.

(2)The condition is that the offence (or any of the offences) concerned satisfies any of these tests—

(a)it is specified in Schedule 2;

(b)it constitutes conduct forming part of a course of criminal activity;

(c)it is an offence committed over a period of at least six months and the defendant has benefited from the conduct which constitutes the offence.

(3)Conduct forms part of a course of criminal activity if the defendant has benefited from the conduct and—

(a)in the proceedings in which he was convicted he was convicted of three or more other offences, each of three or more of them constituting conduct from which he has benefited, or

(b)in the period of six years ending with the day when those proceedings were started (or, if there is more than one such day, the earliest day) he was convicted on at least two separate occasions of an offence constituting conduct from which he has benefited.

(4)But an offence does not satisfy the test in subsection (2)(b) or (c) unless the defendant obtains relevant benefit of not less than £5000.

(5)Relevant benefit for the purposes of subsection (2)(b) is—

(a)benefit from conduct which constitutes the offence;

(b)benefit from any other conduct which forms part of the course of criminal activity and which constitutes an offence of which the defendant has been convicted;

(c)benefit from conduct which constitutes an offence which has been or will be taken into consideration by the court in sentencing the defendant for an offence mentioned in paragraph (a) or (b).

(6)Relevant benefit for the purposes of subsection (2)(c) is—

(a)benefit from conduct which constitutes the offence;

(b)benefit from conduct which constitutes an offence which has been or will be taken into consideration by the court in sentencing the defendant for the offence mentioned in paragraph (a).

(7)The Secretary of State may by order amend Schedule 2.

(8)The Secretary of State may by order vary the amount for the time being specified in subsection (4).

76 Conduct and benefitE+W

(1)Criminal conduct is conduct which—

(a)constitutes an offence in England and Wales, or

(b)would constitute such an offence if it occurred in England and Wales.

(2)General criminal conduct of the defendant is all his criminal conduct, and it is immaterial—

(a)whether conduct occurred before or after the passing of this Act;

(b)whether property constituting a benefit from conduct was obtained before or after the passing of this Act.

(3)Particular criminal conduct of the defendant is all his criminal conduct which falls within the following paragraphs—

(a)conduct which constitutes the offence or offences concerned;

(b)conduct which constitutes offences of which he was convicted in the same proceedings as those in which he was convicted of the offence or offences concerned;

(c)conduct which constitutes offences which the court will be taking into consideration in deciding his sentence for the offence or offences concerned.

(4)A person benefits from conduct if he obtains property as a result of or in connection with the conduct.

(5)If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage.

(6)References to property or a pecuniary advantage obtained in connection with conduct include references to property or a pecuniary advantage obtained both in that connection and some other.

(7)If a person benefits from conduct his benefit is the value of the property obtained.

77 Tainted giftsE+W

(1)Subsections (2) and (3) apply if—

(a)no court has made a decision as to whether the defendant has a criminal lifestyle, or

(b)a court has decided that the defendant has a criminal lifestyle.

(2)A gift is tainted if it was made by the defendant at any time after the relevant day.

(3)A gift is also tainted if it was made by the defendant at any time and was of property—

(a)which was obtained by the defendant as a result of or in connection with his general criminal conduct, or

(b)which (in whole or part and whether directly or indirectly) represented in the defendant’s hands property obtained by him as a result of or in connection with his general criminal conduct.

(4)Subsection (5) applies if a court has decided that the defendant does not have a criminal lifestyle.

(5)A gift is tainted if it was made by the defendant at any time after—

(a)the date on which the offence concerned was committed, or

(b)if his particular criminal conduct consists of two or more offences and they were committed on different dates, the date of the earliest.

(6)For the purposes of subsection (5) an offence which is a continuing offence is committed on the first occasion when it is committed.

(7)For the purposes of subsection (5) the defendant’s particular criminal conduct includes any conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

(8)A gift may be a tainted gift whether it was made before or after the passing of this Act.

(9)The relevant day is the first day of the period of six years ending with—

(a)the day when proceedings for the offence concerned were started against the defendant, or

(b)if there are two or more offences and proceedings for them were started on different days, the earliest of those days.

78 Gifts and their recipientsE+W

(1)If the defendant transfers property to another person for a consideration whose value is significantly less than the value of the property at the time of the transfer, he is to be treated as making a gift.

(2)If subsection (1) applies the property given is to be treated as such share in the property transferred as is represented by the fraction—

(a)whose numerator is the difference between the two values mentioned in subsection (1), and

(b)whose denominator is the value of the property at the time of the transfer.

(3)References to a recipient of a tainted gift are to a person to whom the defendant has made the gift.

79 Value: the basic ruleE+W

(1)This section applies for the purpose of deciding the value at any time of property then held by a person.

(2)Its value is the market value of the property at that time.

(3)But if at that time another person holds an interest in the property its value, in relation to the person mentioned in subsection (1), is the market value of his interest at that time, ignoring any charging order under a provision listed in subsection (4).

(4)The provisions are—

(a)section 9 of the Drug Trafficking Offences Act 1986 (c. 32);

(b)section 78 of the Criminal Justice Act 1988 (c. 33);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));

(d)section 27 of the Drug Trafficking Act 1994 (c. 37);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

(5)This section has effect subject to sections 80 and 81.

80 Value of property obtained from conductE+W

(1)This section applies for the purpose of deciding the value of property obtained by a person as a result of or in connection with his criminal conduct; and the material time is the time the court makes its decision.

(2)The value of the property at the material time is the greater of the following—

(a)the value of the property (at the time the person obtained it) adjusted to take account of later changes in the value of money;

(b)the value (at the material time) of the property found under subsection (3).

(3)The property found under this subsection is as follows—

(a)if the person holds the property obtained, the property found under this subsection is that property;

(b)if he holds no part of the property obtained, the property found under this subsection is any property which directly or indirectly represents it in his hands;

(c)if he holds part of the property obtained, the property found under this subsection is that part and any property which directly or indirectly represents the other part in his hands.

(4)The references in subsection (2)(a) and (b) to the value are to the value found in accordance with section 79.

81 Value of tainted giftsE+W

(1)The value at any time (the material time) of a tainted gift is the greater of the following—

(a)the value (at the time of the gift) of the property given, adjusted to take account of later changes in the value of money;

(b)the value (at the material time) of the property found under subsection (2).

(2)The property found under this subsection is as follows—

(a)if the recipient holds the property given, the property found under this subsection is that property;

(b)if the recipient holds no part of the property given, the property found under this subsection is any property which directly or indirectly represents it in his hands;

(c)if the recipient holds part of the property given, the property found under this subsection is that part and any property which directly or indirectly represents the other part in his hands.

(3)The references in subsection (1)(a) and (b) to the value are to the value found in accordance with section 79.

82 Free propertyE+W

Property is free unless an order is in force in respect of it under any of these provisions—

(a)section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders);

(b)Article 11 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (deprivation orders);

(c)Part 2 of the Proceeds of Crime (Scotland) Act 1995 (c. 43) (forfeiture of property used in crime);

(d)section 143 of the Sentencing Act (deprivation orders);

(e)section 23 or 111 of the Terrorism Act 2000 (c. 11) (forfeiture orders);

(f)section 246, 266, 295(2) or 298(2) of this Act.

83 Realisable propertyE+W

Realisable property is—

(a)any free property held by the defendant;

(b)any free property held by the recipient of a tainted gift.

84 Property: general provisionsE+W

(1)Property is all property wherever situated and includes—

(a)money;

(b)all forms of real or personal property;

(c)things in action and other intangible or incorporeal property.

(2)The following rules apply in relation to property—

(a)property is held by a person if he holds an interest in it;

(b)property is obtained by a person if he obtains an interest in it;

(c)property is transferred by one person to another if the first one transfers or grants an interest in it to the second;

(d)references to property held by a person include references to property vested in his trustee in bankruptcy, permanent or interim trustee (within the meaning of the Bankruptcy (Scotland) Act 1985 (c. 66)) or liquidator;

(e)references to an interest held by a person beneficially in property include references to an interest which would be held by him beneficially if the property were not so vested;

(f)references to an interest, in relation to land in England and Wales or Northern Ireland, are to any legal estate or equitable interest or power;

(g)references to an interest, in relation to land in Scotland, are to any estate, interest, servitude or other heritable right in or over land, including a heritable security;

(h)references to an interest, in relation to property other than land, include references to a right (including a right to possession).

85 ProceedingsE+W

(1)Proceedings for an offence are started—

(a)when a justice of the peace issues a summons or warrant under section 1 of the Magistrates’ Courts Act 1980 (c. 43) in respect of the offence;

(b)when a person is charged with the offence after being taken into custody without a warrant;

(c)when a bill of indictment is preferred under section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 (c. 36) in a case falling within subsection (2)(b) of that section (preferment by Court of Appeal or High Court judge).

(2)If more than one time is found under subsection (1) in relation to proceedings they are started at the earliest of them.

(3)If the defendant is acquitted on all counts in proceedings for an offence, the proceedings are concluded when he is acquitted.

(4)If the defendant is convicted in proceedings for an offence and the conviction is quashed or the defendant is pardoned before a confiscation order is made, the proceedings are concluded when the conviction is quashed or the defendant is pardoned.

(5)If a confiscation order is made against the defendant in proceedings for an offence (whether the order is made by the Crown Court or the Court of Appeal) the proceedings are concluded—

(a)when the order is satisfied or discharged, or

(b)when the order is quashed and there is no further possibility of an appeal against the decision to quash the order.

(6)If the defendant is convicted in proceedings for an offence but the Crown Court decides not to make a confiscation order against him, the following rules apply—

(a)if an application for leave to appeal under section 31(2) is refused, the proceedings are concluded when the decision to refuse is made;

(b)if the time for applying for leave to appeal under section 31(2) expires without an application being made, the proceedings are concluded when the time expires;

(c)if on appeal under section 31(2) the Court of Appeal confirms the Crown Court’s decision, and an application for leave to appeal under section 33 is refused, the proceedings are concluded when the decision to refuse is made;

(d)if on appeal under section 31(2) the Court of Appeal confirms the Crown Court’s decision, and the time for applying for leave to appeal under section 33 expires without an application being made, the proceedings are concluded when the time expires;

(e)if on appeal under section 31(2) the Court of Appeal confirms the Crown Court’s decision, and on appeal under section 33 the House of Lords confirms the Court of Appeal’s decision, the proceedings are concluded when the House of Lords confirms the decision;

(f)if on appeal under section 31(2) the Court of Appeal directs the Crown Court to reconsider the case, and on reconsideration the Crown Court decides not to make a confiscation order against the defendant, the proceedings are concluded when the Crown Court makes that decision;

(g)if on appeal under section 33 the House of Lords directs the Crown Court to reconsider the case, and on reconsideration the Crown Court decides not to make a confiscation order against the defendant, the proceedings are concluded when the Crown Court makes that decision.

(7)In applying subsection (6) any power to extend the time for making an application for leave to appeal must be ignored.

(8)In applying subsection (6) the fact that a court may decide on a later occasion to make a confiscation order against the defendant must be ignored.

86 ApplicationsE+W

(1)An application under section 19, 20, 27 or 28 is concluded—

(a)in a case where the court decides not to make a confiscation order against the defendant, when it makes the decision;

(b)in a case where a confiscation order is made against him as a result of the application, when the order is satisfied or discharged, or when the order is quashed and there is no further possibility of an appeal against the decision to quash the order;

(c)in a case where the application is withdrawn, when the person who made the application notifies the withdrawal to the court to which the application was made.

(2)An application under section 21 or 22 is concluded—

(a)in a case where the court decides not to vary the confiscation order concerned, when it makes the decision;

(b)in a case where the court varies the confiscation order as a result of the application, when the order is satisfied or discharged, or when the order is quashed and there is no further possibility of an appeal against the decision to quash the order;

(c)in a case where the application is withdrawn, when the person who made the application notifies the withdrawal to the court to which the application was made.

87 Confiscation ordersE+W

(1)A confiscation order is satisfied when no amount is due under it.

(2)A confiscation order is subject to appeal until there is no further possibility of an appeal on which the order could be varied or quashed; and for this purpose any power to grant leave to appeal out of time must be ignored.

88 Other interpretative provisionsE+W

(1)A reference to the offence (or offences) concerned must be construed in accordance with section 6(9).

(2)A criminal investigation is an investigation which police officers or other persons have a duty to conduct with a view to it being ascertained whether a person should be charged with an offence.

(3)A defendant is a person against whom proceedings for an offence have been started (whether or not he has been convicted).

(4)A reference to sentencing the defendant for an offence includes a reference to dealing with him otherwise in respect of the offence.

(5)The Sentencing Act is the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6).

(6)The following paragraphs apply to references to orders—

(a)a confiscation order is an order under section 6;

(b)a restraint order is an order under section 41.

(7)Sections 75 to 87 and this section apply for the purposes of this Part.

GeneralE+W

89 Procedure on appeal to the Court of AppealE+W

(1)An appeal to the Court of Appeal under this Part lies only with the leave of that Court.

(2)Subject to rules of court made under section 53(1) of the Supreme Court Act 1981 (c. 54) (distribution of business between civil and criminal divisions) the criminal division of the Court of Appeal is the division—

(a)to which an appeal to that Court under this Part is to lie, and

(b)which is to exercise that Court’s jurisdiction under this Part.

(3)In relation to appeals to the Court of Appeal under this Part, the Secretary of State may make an order containing provision corresponding to any provision in the Criminal Appeal Act 1968 (c. 19) (subject to any specified modifications).

Annotations: Help about Annotation
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I1S. 89 partly in force; s. 89 not in force at Royal Assent see s. 458(1); s. 89 in force for certain purposes at 30.12.2002 by S.I. 2002/3015, art. 2, Sch.

90 Procedure on appeal to the House of LordsE+W

(1)Section 33(3) of the Criminal Appeal Act 1968 (limitation on appeal from criminal division of the Court of Appeal) does not prevent an appeal to the House of Lords under this Part.

(2)In relation to appeals to the House of Lords under this Part, the Secretary of State may make an order containing provision corresponding to any provision in the Criminal Appeal Act 1968 (subject to any specified modifications).

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I2S. 90 partly in force; s. 90 not in force at Royal Assent see s. 458(1); s. 90 in force for certain purposes (30.12.2002) by S.I. 2002/3015, art. 2, Sch.

91 Crown Court RulesE+W

In relation to—

(a)proceedings under this Part, or

(b)receivers appointed under this Part,

Crown Court Rules may make provision corresponding to provision in Civil Procedure Rules.

Part 3 SConfiscation: Scotland

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

Confiscation ordersS

92 Making of orderS

(1)The court must act under this section where the following three conditions are satisfied.

(2)The first condition is that an accused falls within either of the following paragraphs—

(a)he is convicted of an offence or offences, whether in solemn or summary proceedings, or

(b)in the case of summary proceedings in respect of an offence (without proceeding to conviction) an order is made discharging him absolutely.

(3)The second condition is that the prosecutor asks the court to act under this section.

(4)The third condition is that the court decides to order some disposal in respect of the accused; and an absolute discharge is a disposal for the purpose of this subsection.

(5)If the court acts under this section it must proceed as follows—

(a)it must decide whether the accused has a criminal lifestyle;

(b)if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct;

(c)if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct.

(6)If the court decides under subsection (5)(b) or (c) that the accused has benefited from the conduct referred to—

(a)it must decide the recoverable amount, and

(b)it must make an order (a confiscation order) requiring him to pay that amount.

(7)But the court must treat the duty in subsection (6) as a power if it believes that any victim of the conduct has at any time started or intends to start proceedings against the accused in respect of loss, injury or damage sustained in connection with the conduct.

(8)Before making an order under this section the court must take into account any representations made to it by any person whom the court thinks is likely to be affected by the order.

(9)The standard of proof required to decide any question arising under subsection (5) or (6) is the balance of probabilities.

(10)The first condition is not satisfied if the accused is unlawfully at large (but section 111 may apply).

(11)For the purposes of any appeal or review, an order under this section is a sentence.

(12)References in this Part to the offence (or offences) concerned are to the offence (or offences) mentioned in subsection (2).

(13)In this section and sections 93 to 118 “the court” means the High Court of Justiciary or the sheriff.

93 Recoverable amountS

(1)The recoverable amount for the purposes of section 92 is an amount equal to the accused’s benefit from the conduct concerned.

(2)But if the accused shows that the available amount is less than that benefit the recoverable amount is—

(a)the available amount, or

(b)a nominal amount, if the available amount is nil.

(3)But if section 92(7) applies the recoverable amount is such amount as—

(a)the court believes is just, but

(b)does not exceed the amount found under subsection (1) or (2) (as the case may be).

(4)In calculating the accused’s benefit from the conduct concerned for the purposes of subsection (1), any property in respect of which—

(a)a recovery order is in force under section 266, or

(b)a forfeiture order is in force under section 298(2),

must be ignored.

(5)If the court decides the available amount, it must include in the confiscation order a statement of its findings as to the matters relevant for deciding that amount.

94 Accused’s benefitS

(1)If the court is acting under section 92 this section applies for the purpose of—

(a)deciding whether the accused has benefited from conduct, and

(b)deciding his benefit from the conduct.

(2)The court must take account of—

(a)conduct occurring up to the time it makes its decision;

(b)property obtained up to that time.

(3)Subsection (4) applies if—

(a)the conduct concerned is general criminal conduct,

(b)a confiscation order mentioned in subsection (5) has at an earlier time been made against the accused, and

(c)his benefit for the purposes of that order was benefit from his general criminal conduct.

(4)His benefit found at the time the last confiscation order mentioned in subsection (3)(c) was made against him must be taken for the purposes of this section to be his benefit from his general criminal conduct at that time.

(5)If the conduct concerned is general criminal conduct the court must deduct the aggregate of the following amounts—

(a)the amount ordered to be paid under each confiscation order previously made against the accused;

(b)the amount ordered to be paid under each confiscation order previously made against him under—

(i)the Drug Trafficking Offences Act 1986 (c. 32);

(ii)Part 1 of the Criminal Justice (Scotland) Act 1987 (c. 41);

(iii)Part 6 of the Criminal Justice Act 1988 (c. 33);

(iv)the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I.17));

(v)Part 1 of the Drug Trafficking Act 1994 (c. 37);

(vi)Part 1 of the Proceeds of Crime (Scotland) Act 1995 (c. 43);

(vii)the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/ 1299 (N.I.9)); or

(viii)Part 2 or 4 of this Act.

(6)But subsection (5) does not apply to an amount which has been taken into account for the purposes of a deduction under that subsection on any earlier occasion.

(7)The reference to general criminal conduct in the case of a confiscation order made under any of the provisions listed in subsection (5)(b) is a reference to conduct in respect of which a court is required or entitled to make one or more assumptions for the purpose of assessing a person’s benefit from the conduct.

95 Available amountS

(1)For the purposes of deciding the recoverable amount, the available amount is the aggregate of—

(a)the total of the values (at the time the confiscation order is made) of all the free property then held by the accused minus the total amount payable in pursuance of obligations which then have priority, and

(b)the total of the values (at that time) of all tainted gifts.

(2)An obligation has priority if—

(a)it is an obligation of the accused to pay an amount due in respect of a fine or other order of a court which was imposed or made on conviction for an offence and at any time before the confiscation order is made, or

(b)it is an obligation of the accused to pay a sum which would be—

(i)a preferred debt if the accused’s estate were sequestrated on the date of the confiscation order, or

(ii)a preferential debt if his winding up were ordered on that date.

(3)In subsection (2)—

  • preferred debt” has the meaning given by section 51(2) of the Bankruptcy (Scotland) Act 1985 (c. 66);

  • preferential debt” has the meaning given by section 386 of the Insolvency Act 1986 (c. 45).

96 Assumptions to be made in case of criminal lifestyleS

(1)Where the court decides under section 92 that the accused has a criminal lifestyle it must make the following four assumptions for the purpose of—

(a)deciding whether he has benefited from his general criminal conduct, and

(b)deciding his benefit from the conduct.

(2)The first assumption is that any property transferred to the accused at any time after the relevant day was obtained by him—

(a)as a result of his general criminal conduct, and

(b)at the earliest time he appears to have held it.

(3)The second assumption is that any property held by the accused at any time after the date of conviction was obtained by him—

(a)as a result of his general criminal conduct, and

(b)at the earliest time he appears to have held it.

(4)The third assumption is that any expenditure incurred by the accused at any time after the relevant day was met from property obtained by him as a result of his general criminal conduct.

(5)The fourth assumption is that, for the purpose of valuing any property obtained (or assumed to have been obtained) by the accused, he obtained it free of any other interests in it.

(6)But the court must not make any of those assumptions in relation to particular property or expenditure if—

(a)the assumption is shown to be incorrect, or

(b)there would be a serious risk of injustice if the assumption were made.

(7)If the court does not make one or more of those assumptions it must state its reasons.

(8)The relevant day is the first day of the period of six years ending with—

(a)the day when proceedings for the offence concerned were instituted against the accused, or

(b)if there are two or more offences and proceedings for them were instituted on different days, the earliest of those days.

(9)But if a confiscation order mentioned in section 94(3)(c) has been made against the accused at any time during the period mentioned in subsection (8)—

(a)the relevant day is the day when the accused’s benefit was calculated for the purposes of the last such confiscation order;

(b)the second assumption does not apply to any property which was held by him on or before the relevant day.

(10)The date of conviction is—

(a)the date on which the accused was convicted of the offence concerned, or

(b)if there are two or more offences and the convictions are on different dates, the date of the latest.

97 Effect of order on court’s other powersS

(1)If the court decides to make a confiscation order it must act as mentioned in subsections (2) and (4) in respect of the offence or offences concerned.

(2)The court must take account of the confiscation order before—

(a)it imposes a fine on the accused, or

(b)it makes an order falling within subsection (3).

(3)These orders fall within this subsection—

(a)an order involving payment by the accused, other than a compensation order under section 249 of the Procedure Act (compensation orders);

(b)an order under section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders);

(c)an order under Part 2 of the Proceeds of Crime (Scotland) Act 1995 (c. 43) (forfeiture orders);

(d)an order under section 23 of the Terrorism Act 2000 (c. 11) (forfeiture orders).

(4)Subject to subsection (2), the court must leave the confiscation order out of account in deciding the appropriate sentence for the accused.

(5)Subsection (6) applies if—

(a)a court makes both a confiscation order and a compensation order under section 249 of the Procedure Act against the same person in the same proceedings, and

(b)the court believes he will not have sufficient means to satisfy both the orders in full.

(6)In such a case the court must direct that so much of the compensation as it specifies is to be paid out of any sums recovered under the confiscation order; and the amount it specifies must be the amount it believes will not be recoverable because of the insufficiency of the person’s means.

98 Disposal of family homeS

(1)This section applies where a confiscation order has been made in relation to any person and the prosecutor has not satisfied the court that the person’s interest in his family home has been acquired as a benefit from his criminal conduct.

(2)Where this section applies, then, before the administrator disposes of any right or interest in the person’s family home he shall—

(a)obtain the relevant consent; or

(b)where he is unable to do so, apply to the court for authority to carry out the disposal.

(3)On an application being made to it under subsection (2)(b), the court, after having regard to all the circumstances of the case including—

(a)the needs and financial resources of the spouse or former spouse of the person concerned;

(b)the needs and financial resources of any child of the family;

(c)the length of the period during which the family home has been used as a residence by any of the persons referred to in paragraph (a) or (b),

may refuse to grant the application or may postpone the granting of the application for such period (not exceeding 12 months) as it may consider reasonable in the circumstances or may grant the application subject to such conditions as it may prescribe.

(4)Subsection (3) shall apply—

(a)to an action for division and sale of the family home of the person concerned; or

(b)to an action for the purpose of obtaining vacant possession of that home,

brought by the administrator as it applies to an application under subsection (2)(b) and, for the purposes of this subsection, any reference in subsection (3) to the granting of the application shall be construed as a reference to the granting of decree in the action.

(5)In this section—

  • family home”, in relation to any person (in this subsection referred to as “the relevant person”) means any property in which the relevant person has or had (whether alone or in common with any other person) a right or interest, being property which is occupied as a residence by the relevant person and his or her spouse or by the relevant person’s spouse or former spouse (in any case with or without a child of the family) or by the relevant person with a child of the family;

  • child of the family” includes any child or grandchild of either the relevant person or his or her spouse or former spouse, and any person who has been treated by either the relevant person or his or her spouse or former spouse as if he or she were a child of the relevant person, spouse or former spouse, whatever the age of such a child, grandchild or person may be; and

  • relevant consent” means in relation to the disposal of any right or interest in a family home—

    (a)

    in a case where the family home is occupied by the spouse or former spouse of the relevant person, the consent of the spouse or, as the case may be, of the former spouse, whether or not the family home is also occupied by the relevant person;

    (b)

    where paragraph (a) does not apply, in a case where the family home is occupied by the relevant person with a child of the family, the consent of the relevant person.

Procedural mattersS

99 PostponementS

(1)The court may—

(a)proceed under section 92 before it sentences the accused for the offence (or any of the offences concerned), or

(b)postpone proceedings under section 92 for a specified period.

(2)A period of postponement may be extended.

(3)A period of postponement (including one as extended) must not end after the permitted period ends.

(4)But subsection (3) does not apply if there are exceptional circumstances or if the accused has failed to comply with an order under section 102(1).

(5)The permitted period is the period of two years starting with the date of conviction.

(6)But if—

(a)the accused appeals against his conviction for the offence (or any of the offences) concerned, and

(b)the period of three months (starting with the day when the appeal is determined or otherwise disposed of) ends after the period found under subsection (5),

the permitted period is that period of three months.

(7)A postponement or extension may be made—

(a)on application by the accused;

(b)on application by the prosecutor;

(c)by the court of its own motion.

(8)If—

(a)proceedings are postponed for a period, and

(b)an application to extend the period is made before it ends,

the application may be granted even after the period ends.

(9)The date of conviction is—

(a)the date on which the accused was convicted of the offence concerned, or

(b)if there are two or more offences and the convictions were on different dates, the date of the latest.

(10)A confiscation order must not be quashed only on the ground that there was a defect or omission in the procedure connected with the application for or the granting of a postponement.

(11)But subsection (10) does not apply if before it made the confiscation order the court has—

(a)imposed a fine on the accused;

(b)made an order falling within section 97(3);

(c)made an order under section 249 of the Procedure Act.

100 Effect of postponementS

(1)If the court postpones proceedings under section 92 it may proceed to sentence the accused for the offence (or any of the offences) concerned.

(2)Subsection (1) is without prejudice to sections 201 and 202 of the Procedure Act.

(3)In sentencing the accused for the offence (or any of the offences) concerned in the postponement period the court must not—

(a)impose a fine on him,

(b)make an order falling within section 97(3), or

(c)make an order for the payment of compensation under section 249 of the Procedure Act.

(4)If the court sentences the accused for the offence (or any of the offences) concerned in the postponement period, after that period ends it may vary the sentence by—

(a)imposing a fine on him,

(b)making an order falling within section 97(3), or

(c)making an order for the payment of compensation under section 249 of the Procedure Act.

(5)But the court may proceed under subsection (4) only within the period of 28 days which starts with the last day of the postponement period.

(6)Where the court postpones proceedings under section 92 following conviction on indictment, section 109(1) of the Procedure Act (intimation of intention to appeal against conviction or conviction and sentence) has effect as if the reference to the final determination of the proceedings were a reference to the relevant day.

(7)Despite subsection (6), the accused may appeal under section 106 of the Procedure Act against any confiscation order made, or any other sentence passed, after the end of the postponement period, in respect of the conviction.

(8)Where the court postpones proceedings under section 92 following conviction on complaint—

(a)section 176(1) of the Procedure Act (stated case: manner and time of appeal) has effect in relation to an appeal under section 175(2)(a) or (d) as if the reference to the final determination of the proceedings were a reference to the relevant day, and

(b)the draft stated case in such an appeal must be prepared and issued within 3 weeks of the relevant day.

(9)Despite subsection (8), the accused may appeal under section 175(2)(b), and the prosecutor may appeal under section 175(3)(b), of the Procedure Act against any confiscation order made, or any other sentence passed, after the end of the postponement period, in respect of the conviction.

(10)The relevant day is—

(a)in the case of an appeal against conviction where the court has sentenced the accused under subsection (1), the day on which the postponement period commenced;

(b)in any other case, the day on which sentence is passed in open court.

(11)The postponement period is the period for which proceedings under section 92 are postponed.

101 Statement of informationS

(1)When the court is proceeding under section 92 the prosecutor must, within such period as the court may order, give the court a statement of information.

(2)If the prosecutor believes the accused has a criminal lifestyle the statement of information is a statement of matters the prosecutor believes are relevant in connection with deciding these issues—

(a)whether the accused has a criminal lifestyle;

(b)whether he has benefited from his general criminal conduct;

(c)his benefit from the conduct.

(3)A statement under subsection (2) must include information the prosecutor believes is relevant—

(a)in connection with the making by the court of a required assumption under section 96;

(b)for the purpose of enabling the court to decide if the circumstances are such that it must not make such an assumption.

(4)If the prosecutor does not believe the accused has a criminal lifestyle the statement of information is a statement of matters the prosecutor believes are relevant in connection with deciding these issues—

(a)whether the accused has benefited from his particular criminal conduct;

(b)his benefit from the conduct.

(5)If the prosecutor gives the court a statement of information—

(a)he may at any time give the court a further statement of information;

(b)he must give the court a further statement of information if it orders him to do so, and he must give it within the period the court orders.

(6)If the court makes an order under this section it may at any time vary it by making another one.

102 Accused’s response to statement of informationS

(1)When the prosecutor gives the court a statement of information and the court is satisfied that he has served a copy on the accused, the court shall order the accused—

(a)to indicate the extent to which he accepts each allegation in the statement, and

(b)so far as he does not accept such an allegation, to give particulars of any matters he proposes to rely on,

within the period it orders.

(2)Where by virtue of section 99 the court postpones proceedings under section 92, the period ordered by the court under subsection (1) shall be a period ending not less than six months before the end of the permitted period mentioned in section 99.

(3)If the accused accepts to any extent an allegation in a statement of information the court may treat his acceptance as conclusive of the matters to which it relates for the purpose of deciding the issues referred to in section 101(2) or (4) (as the case may be).

(4)If the accused fails in any respect to comply with an order under subsection (1) he may be treated for the purposes of subsection (3) as accepting every allegation in the statement of information apart from—

(a)any allegation in respect of which he has complied with the requirement;

(b)any allegation that he has benefited from his general or particular criminal conduct.

(5)Where—

(a)an allegation in a statement of information is challenged by the accused, or

(b)the matters referred to in subsection (1)(b) are challenged by the prosecutor,

the court must consider the matters being challenged at a hearing.

(6)The judge presiding at the hearing may, if he is not the trial judge and he considers it in the interests of justice to do so, adjourn the hearing to a date when the trial judge is available.

(7)If the court makes an order under this section it may at any time vary it by making another one.

(8)No acceptance under this section that the accused has benefited from conduct is admissible in evidence in proceedings for an offence.

103 Provision of information by accusedS

(1)For the purpose of obtaining information to help it in carrying out its functions under section 92 the court may at any time order the accused to give it information specified in the order.

(2)An order under this section may require all or a specified part of the information to be given in a specified manner and before a specified date.

(3)If the accused fails without reasonable excuse to comply with an order under this section the court may draw such inference as it thinks appropriate.

(4)Subsection (3) does not affect any power of the court to deal with the accused in respect of a failure to comply with an order under this section.

(5)If the prosecutor accepts to any extent an allegation made by the accused—

(a)in giving information required by an order under this section, or

(b)in any other statement given to the court in relation to any matter relevant to deciding the available amount under section 95,

the court may treat the acceptance as conclusive of the matters to which it relates.

(6)For the purposes of this section an allegation may be accepted in a manner ordered by the court.

(7)If the court makes an order under this section it may at any time vary it by making another order.

(8)No information given under this section which amounts to an admission by the accused that he has benefited from criminal conduct is admissible in evidence in proceedings for an offence.

ReconsiderationS

104 No order made: reconsideration of caseS

(1)This section applies if—

(a)the first condition in section 92 is satisfied but no court has proceeded under that section,

(b)the prosecutor has evidence which was not available to him on the relevant date,

(c)before the end of the period of six years starting with the date of conviction the prosecutor applies to the court to consider the evidence, and

(d)after considering the evidence the court thinks it is appropriate for it to proceed under section 92.

(2)The court must proceed under section 92, and when it does so subsections (3) to (8) below apply.

(3)If the court has already sentenced the accused for the offence (or any of the offences) concerned section 92(4) does not apply.

(4)Section 94(2) does not apply, and the rules applying instead are that the court must take account of—

(a)conduct occurring before the relevant date;

(b)property obtained before that date;

(c)property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

(5)In relation to the assumptions that the court must make under section 96—

(a)the first and second assumptions do not apply with regard to property first held by the accused on or after the relevant date;

(b)the third assumption does not apply with regard to expenditure incurred by him on or after that date;

(c)the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

(6)The recoverable amount for the purposes of section 92 is such amount as—

(a)the court believes is just, but

(b)does not exceed the amount found under section 93.

(7)In arriving at the just amount the court must have regard in particular to—

(a)the amount found under section 93;

(b)any fine imposed on the accused in respect of the offence (or any of the offences) concerned;

(c)any order which falls within section 97(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by a court in deciding what is the free property held by the accused for the purposes of section 95;

(d)any compensation order which has been made against him in respect of the offence (or any of the offences) concerned under section 249 of the Procedure Act.

(8)If an order for payment of compensation under section 249 of the Procedure Act has been made against the accused in respect of the offence or offences concerned, section 97(5) and (6) do not apply.

(9)The relevant date is—

(a)if the court made a decision not to proceed under section 92, the date of the decision;

(b)if the court did not make such a decision, the date of the conviction.

(10)The date of conviction is—

(a)the date on which the accused was convicted of the offence concerned, or

(b)if there are two or more offences and the convictions were on different dates, the date of the latest.

(11)In this section references to the court are to the court which had jurisdiction in respect of the offence or offences concerned to make a confiscation order.

105 No order made: reconsideration of benefitS

(1)This section applies if the following two conditions are satisfied.

(2)The first condition is that in proceeding under section 92 the court has decided that—

(a)the accused has a criminal lifestyle but has not benefited from his general criminal conduct, or

(b)the accused does not have a criminal lifestyle and has not benefited from his particular criminal conduct.

(3)The second condition is that—

(a)the prosecutor has evidence which was not available to him when the court decided that the accused had not benefited from his general or particular criminal conduct,

(b)before the end of the period of six years starting with the date of conviction the prosecutor applies to the court to consider the evidence, and

(c)after considering the evidence the court concludes that it would have decided that the accused had benefited from his general or particular criminal conduct (as the case may be) if the evidence had been available to it.

(4)If this section applies the court—

(a)must make a fresh decision under section 92(5)(b) or (c) as to whether the accused has benefited from his general or particular criminal conduct (as the case may be);

(b)may make a confiscation order under that section.

(5)Subsections (6) to (11) below apply if the court proceeds under section 92 in pursuance of this section.

(6)If the court has already sentenced the accused for the offence (or any of the offences) concerned section 92(4) does not apply.

(7)Section 94(2) does not apply, and the rules applying instead are that the court must take account of—

(a)conduct occurring before the date of the original decision that the accused had not benefited from his general or particular criminal conduct;

(b)property obtained before that date;

(c)property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

(8)In relation to the assumptions that the court must make under section 96—

(a)the first and second assumptions do not apply with regard to property first held by the accused on or after the date of the original decision that the accused had not benefited from his general or particular criminal conduct;

(b)the third assumption does not apply with regard to expenditure incurred by him on or after that date;

(c)the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

(9)The recoverable amount for the purposes of section 92 is such amount as—

(a)the court believes is just, but

(b)does not exceed the amount found under section 93.

(10)In arriving at the just amount the court must have regard in particular to—

(a)the amount found under section 93;

(b)any fine imposed on the accused in respect of the offence (or any of the offences) concerned;

(c)any order which falls within section 97(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by a court in deciding what is the free property held by the accused for the purposes of section 95;

(d)any compensation order which has been made against him in respect of the offence (or any of the offences) concerned under section 249 of the Procedure Act.

(11)If an order for the payment of compensation under section 249 of the Procedure Act has been made against the accused in respect of the offence or offences concerned, section 97(5) and (6) do not apply.

(12)The date of conviction is the date found by applying section 104(10).

(13)In this section references to the court are to the court which had jurisdiction in respect of the offence or offences concerned to make a confiscation order.

106 Order made: reconsideration of benefitS

(1)This section applies if—

(a)a court has made a confiscation order,

(b)there is evidence which was not available to the prosecutor at the relevant time,

(c)the prosecutor believes that if the court were to find the amount of the accused’s benefit in pursuance of this section it would exceed the relevant amount,

(d)before the end of the period of six years starting with the date of conviction the prosecutor applies to the court to consider the evidence, and

(e)after considering the evidence the court thinks it is appropriate for it to proceed under this section.

(2)The court must make a new calculation of the accused’s benefit from the conduct concerned, and when it does so subsections (3) to (5) below apply.

(3)Section 94(2) does not apply, and the rules applying instead are that the court must take account of—

(a)conduct occurring up to the time it decided the accused’s benefit for the purposes of the confiscation order;

(b)property obtained up to that time;

(c)property obtained after that time if it was obtained as a result of or in connection with conduct occurring before that time.

(4)In applying section 94(3) the confiscation order must be ignored.

(5)In relation to the assumptions that the court must make under section 96—

(a)the first and second assumptions do not apply with regard to property first held by the accused after the time the court decided his benefit for the purposes of the confiscation order;

(b)the third assumption does not apply with regard to expenditure incurred by him after that time;

(c)the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him after that time.

(6)If the amount found under the new calculation of the accused’s benefit exceeds the relevant amount the court—

(a)must make a new calculation of the recoverable amount for the purposes of section 92, and

(b)if it exceeds the amount required to be paid under the confiscation order, may vary the order by substituting for the amount required to be paid such amount as it believes just.

(7)In applying subsection (6)(a) the court must—

(a)take the new calculation of the accused’s benefit;

(b)apply section 95 as if references to the time the confiscation order is made were to the time of the new calculation of the recoverable amount and as if references to the date of the confiscation order were to the date of that new calculation.

(8)In applying subsection (6)(b) the court must have regard in particular to—

(a)any fine imposed on the accused for the offence (or any of the offences) concerned;

(b)any order which falls within section 97(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by a court in deciding what is the free property held by the accused for the purposes of section 95;

(c)any order which has been made against him in respect of the offence (or any of the offences) concerned under section 249 of the Procedure Act.

(9)But in applying subsection (6)(b) the court must not have regard to an order falling within subsection (8)(c) if a court has made a direction under section 97(6).

(10)In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.

(11)The relevant time is—

(a)when the court calculated the accused’s benefit for the purposes of the confiscation order, if this section has not applied previously;

(b)when the court last calculated the accused’s benefit in pursuance of this section, if this section has applied previously.

(12)The relevant amount is—

(a)the amount found as the accused’s benefit for the purposes of the confiscation order, if this section has not applied previously;

(b)the amount last found as the accused’s benefit in pursuance of this section, if this section has applied previously.

(13)The date of conviction is the date found by applying section 104(10).

107 Order made: reconsideration of available amountS

(1)This section applies if—

(a)a court has made a confiscation order,

(b)the amount required to be paid was the amount found under section 93(2), and

(c)the prosecutor applies to the court to make a new calculation of the available amount.

(2)In a case where this section applies the court must make the new calculation, and in doing so it must apply section 95 as if references to the time the confiscation order is made were to the time of the new calculation and as if references to the date of the confiscation order were to the date of the new calculation.

(3)If the amount found under the new calculation exceeds the relevant amount the court may vary the order by substituting for the amount required to be paid such amount as—

(a)it thinks is just, but

(b)does not exceed the amount found as the accused’s benefit from the conduct concerned.

(4)In arriving at the just amount the court must have regard in particular to—

(a)any fine imposed on the accused for the offence (or any of the offences) concerned;

(b)any order which falls within section 97(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by a court in deciding what is the free property held by the accused for the purposes of section 95;

(c)any order which has been made against him in respect of the offence (or any of the offences) concerned under section 249 of the Procedure Act.

(5)But in deciding what is just the court must not have regard to an order falling within subsection (4)(c) if a court has made a direction under section 97(6).

(6)In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.

(7)The relevant amount is—

(a)the amount found as the available amount for the purposes of the confiscation order, if this section has not applied previously;

(b)the amount last found as the available amount in pursuance of this section, if this section has applied previously.

(8)The amount found as the accused’s benefit from the conduct concerned is—

(a)the amount so found when the confiscation order was made, or

(b)if one or more new calculations of the accused’s benefit have been made under section 106 the amount found on the occasion of the last such calculation.

108 Inadequacy of available amount: variation of orderS

(1)This section applies if—

(a)a court has made a confiscation order, and

(b)the accused or the prosecutor applies to the court to vary the order under this section.

(2)In such a case the court must calculate the available amount and in doing so it must apply section 95 as if references to the time the confiscation order is made were to the time of the calculation and as if references to the date of the confiscation order were to the date of the calculation.

(3)If the court finds that the available amount (as so calculated) is inadequate to meet the amount remaining to be paid it may vary the order by substituting for the amount required to be paid such smaller amount as the court believes is just.

(4)If a person’s estate has been sequestrated or he has been adjudged bankrupt, or if an order for the winding up of a company has been made, the court must take into account the extent to which realisable property held by him or by the company may be distributed among creditors.

(5)The court may disregard any inadequacy which it thinks is attributable (wholly or partly) to anything done by the accused for the purpose of preserving property held by the recipient of a tainted gift from any risk of realisation under this Part.

(6)In subsection (4) “company” means any company which may be wound up under the Insolvency Act 1986 (c. 45) or the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)).

109 Inadequacy of available amount: discharge of orderS

(1)This section applies if—

(a)a court has made a confiscation order,

(b)the prosecutor applies to the court to discharge the order under this section, and

(c)the amount remaining to be paid under the order is less than £1,000.

(2)In such a case the court must calculate the available amount, and in doing so it must apply section 95 as if references to the time the confiscation order is made were to the time of the calculation and as if references to the date of the confiscation order were to the date of the calculation.

(3)If the court—

(a)finds that the available amount (as so calculated) is inadequate to meet the amount remaining to be paid, and

(b)is satisfied that the inadequacy is due wholly to a specified reason or a combination of specified reasons,

it may discharge the confiscation order.

(4)The specified reasons are—

(a)in a case where any of the realisable property consists of money in a currency other than sterling, that fluctuations in currency exchange rates have occurred;

(b)any reason specified by the Scottish Ministers.

(5)The Scottish Ministers may by order vary the amount for the time being specified in subsection (1)(c).

110 InformationS

(1)This section applies if—

(a)the court proceeds under section 92 in pursuance of section 104 or 105, or

(b)the prosecutor applies under section 106.

(2)In such a case—

(a)the prosecutor must give the court a statement of information within such period as the court may specify;

(b)section 101 applies accordingly (with appropriate modifications where the prosecutor applies under section 106);

(c)sections 102 and 103 apply accordingly.

Accused unlawfully at largeS

111 Conviction or other disposal of accusedS

(1)This section applies if an accused is unlawfully at large after—

(a)he is convicted of an offence or offences, whether in solemn or summary proceedings, or

(b)in the case of summary proceedings in respect of an offence (without proceeding to conviction) an order is made discharging him absolutely.

(2)If this section applies the court may, on the application of the prosecutor and if it believes it is appropriate for it to do so, proceed under section 92 in the same way as it must proceed if the conditions there mentioned are satisfied; but this is subject to subsection (3).

(3)If the court proceeds under section 92 as applied by this section, this Part has effect with these modifications—

(a)any person the court believes is likely to be affected by an order under section 92 is entitled to appear before the court and make representations;

(b)the court must not make an order under section 92 unless the prosecutor has taken reasonable steps to contact the accused;

(c)section 92(12) applies as if the reference to subsection (2) were to subsection (1) of this section;

(d)sections 96, 101(3), 102 and 103 do not apply;

(e)sections 104, 105 and 106 do not apply while the accused is still unlawfully at large.

(4)Once the accused has ceased to be unlawfully at large, section 104 has effect as if subsection (1)(a) read—

(a)in a case where section 111 applies the court did not proceed under section 92,.

112 Accused neither convicted nor acquittedS

(1)This section applies if—

(a)proceedings for an offence or offences are instituted against an accused but are not concluded,

(b)he is unlawfully at large, and

(c)the period of two years (starting with the day the court believes he first became unlawfully at large) has ended.

(2)If this section applies the court may, on an application by the prosecutor and if it believes it is appropriate for it to do so, proceed under section 92 in the same way as it must proceed if the conditions there mentioned are satisfied; but this is subject to subsection (3).

(3)If the court proceeds under section 92 as applied by this section, this Part has effect with these modifications—

(a)any person the court believes is likely to be affected by an order under section 92 is entitled to appear before the court and make representations;

(b)the court must not make an order under section 92 unless the prosecutor has taken reasonable steps to contact the accused;

(c)section 92(12) applies as if the reference to subsection (2) were to subsection (1) of this section;

(d)sections 96, 101(3), 102, 103, 104 and 105 do not apply;

(e)section 106 does not apply while the accused is still unlawfully at large.

(4)Once the accused has ceased to be unlawfully at large, section 106 has effect as if references to the date of conviction were to—

(a)the day when proceedings for the offence were instituted against the accused, or

(b)if there are two or more offences and proceedings for them were instituted on different days, the earliest of those days.

(5)If—

(a)the court makes an order under section 92 as applied by this section, and

(b)the accused is later convicted of the offence (or any of the offences) concerned,

section 92 does not apply so far as that conviction is concerned.

113 Variation of orderS

(1)This section applies if—

(a)the court makes a confiscation order under section 92 as applied by section 112,

(b)the accused ceases to be unlawfully at large,

(c)he is convicted of an offence (or any of the offences) mentioned in section 112(1)(a),

(d)he believes that the amount required to be paid was too large (taking the circumstances prevailing when the amount was found for the purposes of the order), and

(e)before the end of the relevant period he applies to the court to consider the evidence on which his belief is based.

(2)If (after considering the evidence) the court concludes that the accused’s belief is well founded—

(a)it must find the amount which should have been the amount required to be paid (taking the circumstances prevailing when the amount was found for the purposes of the order), and

(b)it may vary the order by substituting for the amount required to be paid such amount as it believes is just.

(3)The relevant period is the period of 28 days starting with—

(a)the date on which the accused was convicted of the offence mentioned in section 112(1)(a), or

(b)if there are two or more offences and the convictions were on different dates, the date of the latest.

(4)But in a case where section 112(1)(a) applies to more than one offence the court must not make an order under this section unless it is satisfied that there is no possibility of any further proceedings being taken or continued in relation to any such offence in respect of which the accused has not been convicted.

114 Discharge of orderS

(1)Subsection (2) applies if—

(a)the court makes a confiscation order under section 92 as applied by section 112,

(b)the accused is later tried for the offence or offences concerned and acquitted of the offence or offences, and

(c)he applies to the court to discharge the order.

(2)In such a case the court must discharge the order.

(3)Subsection (4) applies if—

(a)the court makes a confiscation order under section 92 as applied by section 112,

(b)the accused ceases to be unlawfully at large,

(c)subsection (1)(b) does not apply, and

(d)he applies to the court to discharge the order.

(4)In such a case the court may discharge the order if it finds that—

(a)there has been undue delay in continuing the proceedings mentioned in section 112(1), or

(b)the prosecutor does not intend to proceed with the prosecution.

(5)If the court discharges a confiscation order under this section it may make such a consequential or incidental order as it thinks is appropriate.

AppealsS

115 Appeal by prosecutorS

(1)Section 108 of the Procedure Act (Lord Advocate’s right of appeal in solemn proceedings) is amended as provided in subsections (2) to (4).

(2)In subsection (1), after paragraph (c) insert—

(ca)a decision under section 92 of the Proceeds of Crime Act 2002 not to make a confiscation order;.

(3)In subsection (2)(b)(ii), for the words “or (c)” substitute “ , (c) or (ca) ”.

(4)After subsection (2) insert—

(3)For the purposes of subsection (2)(b)(i) above in its application to a confiscation order by virtue of section 92(11) of the Proceeds of Crime Act 2002, the reference to the disposal being unduly lenient is a reference to the amount required to be paid by the order being unduly low.

(5)Section 175 of the Procedure Act (right of appeal in summary proceedings) is amended as provided in subsections (6) to (8).

(6)In subsection (4), after paragraph (c) insert—

(ca)a decision under section 92 of the Proceeds of Crime Act 2002 not to make a confiscation order;.

(7)In subsection (4A)(b)(ii), for the words “or (c)” substitute “ , (c) or (ca) ”.

(8)After subsection (4A) insert—

(4B)For the purposes of subsection (4A)(b)(i) above in its application to a confiscation order by virtue of section 92(11) of the Proceeds of Crime Act 2002, the reference to the disposal being unduly lenient is a reference to the amount required to be paid by the order being unduly low.

Payment and enforcementS

116 Time for paymentS

(1)The amount ordered to be paid under a confiscation order must be paid on the making of the order; but this is subject to the following provisions of this section.

(2)If the accused shows that he needs time to pay the amount ordered to be paid, the court making the confiscation order may make an order allowing payment to be made in a specified period.

(3)The specified period—

(a)must start with the day on which the confiscation order is made, and

(b)must not exceed six months.

(4)If within the specified period the accused applies to the sheriff court for the period to be extended and the court, after giving the prosecutor an opportunity of being heard, believes there are exceptional circumstances, it may make an order extending the period.

(5)The extended period—

(a)must start with the day on which the confiscation order is made, and

(b)must not exceed 12 months.

(6)An order under subsection (4)—

(a)may be made after the end of the specified period, but

(b)must not be made after the end of the period of twelve months starting with the day on which the confiscation order is made.

(7)The court must not make an order under subsection (2) or (4) unless it gives the prosecutor an opportunity to make representations.

117 Interest on unpaid sumsS

(1)If the amount required to be paid by a person under a confiscation order is not paid when it is required to be paid (whether when the order is made or within a period specified under section 116), he must pay interest on the amount for the period for which it remains unpaid.

(2)The rate of interest is the rate payable under a decree of the Court of Session.

(3)For the purposes of this section no amount is required to be paid under a confiscation order if—

(a)an application has been made under section 116(4),

(b)the application has not been determined by the court, and

(c)the period of 12 months starting with the day on which the confiscation order was made has not ended.

(4)In applying this Part the amount of the interest must be treated as part of the amount to be paid under the confiscation order.

118 Application of provisions about fine enforcementS

(1)The provisions of the Procedure Act specified in subsection (2) apply, with the qualifications mentioned in that subsection, in relation to a confiscation order as if the amount ordered to be paid were a fine imposed on the accused by the court making the confiscation order.

(2)Those provisions are—

(a)section 211(3) to (6);

(b)section 214(4) to (6), but as if the references in subsection (4) to payment by instalments were omitted;

(c)section 216, but as if subsection (1)—

(i)gave the prosecutor an opportunity to be heard at any enquiry under that subsection; and

(ii)applied whether the offender was in prison or not;

(d)section 217;

(e)section 218(2) and (3);

(f)section 219, provided that—

(i)where a court imposes a period of imprisonment in respect of both a fine and a confiscation order the amounts in respect of which the period is imposed must, for the purposes of subsection (2), be aggregated;

(ii)before imposing a period of imprisonment by virtue of that section the court must require a report from any administrator appointed in relation to the confiscation order as to whether and how he is likely to exercise his powers and duties under this Part and must take that report into account; and the court may, pending such exercise, postpone any decision as to such imposition; and

(iii)where an administrator has not been appointed in relation to the confiscation order, or where the accused does not ask under section 116 for time for payment of any confiscation order imposed by the court, the prosecutor may apply to the court to postpone the imposition of any period of imprisonment for a period not exceeding 3 months to enable the prosecutor to apply to the court for the appointment of an administrator;

(g)section 220, but as if the reference in subsection (1) to payment of a sum by the person included a reference to payment of the sum in respect of the person by an administrator appointed in relation to the confiscation order;

(h)section 221, except where an administrator is appointed in relation to the confiscation order;

(i)section 222, except that for the purposes of that section “confiscation order” in subsection (1) above must be construed as including such an order within the meaning of the Drug Trafficking Act 1994 (c. 37), the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17)), the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)) or of Part 2 or 4 of this Act;

(j)section 223;

(k)section 224.

(3)Where a court, by virtue of subsection (1), orders the amount ordered to be paid under a confiscation order to be recovered by civil diligence under section 221 of the Procedure Act, any arrestment executed by a prosecutor under subsection (3) of section 124 of this Act is to be treated as having been executed by the court as if that subsection authorised such execution.

(4)Subsection (5) applies where—

(a)a warrant for apprehension of the accused is issued for a default in payment of the amount ordered to be paid under a confiscation order in respect of an offence or offences, and

(b)at the time the warrant is issued the accused is liable to serve a period of imprisonment or detention (other than one of life imprisonment or detention for life) in respect of the offence (or any of the offences).

(5)In such a case any period of imprisonment or detention to which the accused is liable by virtue of section 219 of the Procedure Act runs from the expiry of the period of imprisonment or detention mentioned in subsection (4)(b).

Restraint orders etcS

119 Conditions for exercise of powersS

(1)The court may exercise the powers conferred by section 120 if any of the following conditions is satisfied.

(2)The first condition is that—

(a)a criminal investigation has been instituted in Scotland with regard to an offence, and

(b)there is reasonable cause to believe that the alleged offender has benefited from his criminal conduct.

(3)The second condition is that—

(a)proceedings for an offence have been instituted in Scotland and not concluded, and

(b)there is reasonable cause to believe that the accused has benefited from his criminal conduct.

(4)The third condition is that—

(a)an application by the prosecutor has been made under section 104, 105, 111 or 112 and not concluded, or the court believes that such an application is to be made, and

(b)there is reasonable cause to believe that the accused has benefited from his criminal conduct.

(5)The fourth condition is that—

(a)an application by the prosecutor has been made under section 106 and not concluded, or the court believes that such an application is to be made, and

(b)there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the accused’s benefit exceeds the relevant amount (as defined in that section).

(6)The fifth condition is that—

(a)an application by the prosecutor has been made under section 107 and not concluded, or the court believes that such an application is to be made, and

(b)there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the available amount exceeds the relevant amount (as defined in that section).

(7)The second condition is not satisfied if the court believes that—

(a)there has been undue delay in continuing the proceedings, or

(b)the prosecutor does not intend to proceed.

(8)If an application mentioned in the third, fourth or fifth condition has been made the condition is not satisfied if the court believes that—

(a)there has been undue delay in continuing the application, or

(b)the prosecutor does not intend to proceed.

(9)If the first condition is satisfied—

(a)references in this Part to the accused are to the alleged offender;

(b)references in this Part to the prosecutor are to the person the court believes is to have conduct of any proceedings for the offence;

(c)section 144(8) has effect as if proceedings for the offence had been instituted against the accused when the investigation was instituted.

(10)In this section, sections 120 to 140 and Schedule 3 “the court” means—

(a)the Court of Session, where a trial diet or a diet fixed for the purposes of section 76 of the Procedure Act in proceedings for the offence or offences concerned is to be, is being or has been held in the High Court of Justiciary;

(b)the sheriff exercising his civil jurisdiction, where a diet referred to in paragraph (a) is to be, is being or has been held in the sheriff court.

120 Restraint orders etcS

(1)If any condition set out in section 119 is satisfied the court may make an order (a restraint order) interdicting any specified person from dealing with any realisable property held by him.

(2)A restraint order may provide that it applies—

(a)to all realisable property held by the specified person whether or not the property is described in the order;

(b)to realisable property transferred to the specified person after the order is made.

(3)A restraint order may be made subject to exceptions, and an exception may in particular—

(a)make provision for reasonable living expenses and reasonable legal expenses;

(b)make provision for the purpose of enabling any person to carry on any trade, business, profession or occupation;

(c)be made subject to conditions.

(4)But an exception to a restraint order may not make provision for any legal expenses which—

(a)relate to an offence which falls within subsection (5), and

(b)are incurred by a person against whom proceedings for the offence have been instituted or by a recipient of a tainted gift.

(5)These offences fall within this subsection—

(a)the offence mentioned in section 119(2) or (3), if the first or second condition (as the case may be) is satisfied;

(b)the offence (or any of the offences) concerned, if the third, fourth or fifth condition is satisfied.

(6)The court may make such order as it believes is appropriate for the purpose of ensuring that the restraint order is effective.

(7)A restraint order does not affect property subject to a charge under—

(a)section 9 of the Drug Trafficking Offences Act 1986 (c. 32),

(b)Part 6 of the Criminal Justice Act 1988 (c. 33),

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17)),

(d)section 27 of the Drug Trafficking Act 1994 (c. 37), or

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

(8)Dealing with property includes removing the property from Scotland.

121 Application, recall and variationS

(1)This section applies to a restraint order.

(2)An order may be made on an ex parte application by the prosecutor, which may be heard in chambers.

(3)The prosecutor must intimate an order to every person affected by it.

(4)Subsection (3) does not affect the time when the order becomes effective.

(5)The prosecutor and any other person affected by the order may apply to the court to recall an order or to vary it; and subsections (6) to (9) apply in such a case.

(6)If an application under subsection (5) in relation to an order has been made but not determined, realisable property to which the order applies must not be realised.

(7)The court may—

(a)recall the order;

(b)vary the order.

(8)In the case of a restraint order, if the condition in section 119 which was satisfied was that proceedings were instituted or an application was made, the court must recall the order on the conclusion of the proceedings or of the application (as the case may be).

(9)In the case of a restraint order, if the condition in section 119 which was satisfied was that an investigation was instituted or an application was to be made, the court must recall the order if within a reasonable time proceedings for the offence are not instituted or the application is not made (as the case may be).

122 AppealsS

(1)If on an application for a restraint order the court decides not to make one, the prosecutor may reclaim or appeal to the Court of Session against the decision.

(2)The prosecutor and any person affected by the order may reclaim or appeal to the Court of Session against the decision of the court on an application under section 121(5).

123 Inhibition of property affected by orderS

(1)On the application of the Lord Advocate, the Court of Session may, in relation to the property mentioned in subsection (2), grant warrant for inhibition against any person specified in a restraint order.

(2)That property is the heritable realisable property to which the restraint order applies (whether generally or such of it as is specified in the application).

(3)The warrant for inhibition—

(a)has effect as if granted on the dependence of an action for debt by the Lord Advocate against the person and may be executed, recalled, loosed or restricted accordingly, and

(b)has the effect of letters of inhibition and must forthwith be registered by the Lord Advocate in the Register of Inhibitions and Adjudications.

(4)Section 155 of the Titles to Land Consolidation (Scotland) Act 1868 (c. 101) (effective date of inhibition) applies in relation to an inhibition for which warrant is granted under subsection (1) as it applies to an inhibition by separate letters or contained in a summons.

(5)The execution of an inhibition under this section in respect of property does not prejudice the exercise of an administrator’s powers under or for the purposes of this Part in respect of that property.

(6)An inhibition executed under this section ceases to have effect when, or in so far as, the restraint order ceases to apply in respect of the property in relation to which the warrant for inhibition was granted.

(7)If an inhibition ceases to have effect to any extent by virtue of subsection (6) the Lord Advocate must—

(a)apply for the recall or, as the case may be, the restriction of the inhibition, and

(b)ensure that the recall or restriction is reflected in the Register of Inhibitions and Adjudications.

Annotations: Help about Annotation
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

124 Arrestment of property affected by orderS

(1)On the application of the prosecutor the court may, in relation to moveable realisable property to which a restraint order applies (whether generally or such of it as is specified in the application), grant warrant for arrestment.

(2)Such a warrant for arrestment may be granted only if the property would be arrestable if the person entitled to it were a debtor.

(3)A warrant under subsection (1) has effect as if granted on the dependence of an action for debt at the instance of the prosecutor against the person and may be executed, recalled, loosed or restricted accordingly.

(4)The execution of an arrestment under this section in respect of property does not prejudice the exercise of an administrator’s powers under or for the purposes of this Part in respect of that property.

(5)An arrestment executed under this section ceases to have effect when, or in so far as, the restraint order ceases to apply in respect of the property in relation to which the warrant for arrestment was granted.

(6)If an arrestment ceases to have effect to any extent by virtue of subsection (5) the prosecutor must apply to the court for an order recalling, or as the case may be, restricting the arrestment.

Annotations: Help about Annotation
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

125 Management administratorsS

(1)If the court makes a restraint order it may at any time, on the application of the prosecutor—

(a)appoint an administrator to take possession of any realisable property to which the order applies and (in accordance with the court’s directions) to manage or otherwise deal with the property;

(b)order a person who has possession of property in respect of which an administrator is appointed to give him possession of it.

(2)An appointment of an administrator may be made subject to conditions or exceptions.

(3)Where the court makes an order under subsection (1)(b), the clerk of court must notify the accused and any person subject to the order of the making of the order.

(4)Any dealing of the accused or any such person in relation to property to which the order applies is of no effect in a question with the administrator unless the accused or, as the case may be, that person had no knowledge of the administrator’s appointment.

(5)The court—

(a)may order a person holding an interest in realisable property to which the restraint order applies to make to the administrator such payment as the court specifies in respect of a beneficial interest held by the accused or the recipient of a tainted gift;

(b)may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

(6)The court must not—

(a)confer the power mentioned in subsection (1) to manage or otherwise deal with the property, or

(b)exercise the power conferred on it by subsection (5),

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

(7)The court may order that a power conferred by an order under this section is subject to such conditions and exceptions as it specifies.

(8)Managing or otherwise dealing with property includes—

(a)selling the property or any part of it or interest in it;

(b)carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

(c)incurring capital expenditure in respect of the property.

(9)Subsections (1)(b) and (5) do not apply to property for the time being subject to a charge under—

(a)section (9) of the Drug Trafficking Offences Act 1986 (c. 32);

(b)section 78 of the Criminal Justice Act 1988 (c. 33);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));

(d)section 27 of the Drug Trafficking Act 1994 (c. 37);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

126 SeizureS

(1)If a restraint order is in force a constable or a customs officer may seize any realisable property to which it applies to prevent its removal from Scotland.

(2)Property seized under subsection (1) must be dealt with in accordance with the directions of the court which made the order.

127 Restraint orders: restriction on proceedings and remediesS

(1)While a restraint order has effect, the court may sist any action, execution or any legal process in respect of the property to which the order applies.

(2)If a court (whether the Court of Session or any other court) in which proceedings are pending in respect of any property is satisfied that a restraint order has been made or applied for or made in respect of the property, the court may either sist the proceedings or allow them to continue on any terms it thinks fit.

(3)Before exercising any power conferred by subsection (2), the court must give an opportunity to be heard to—

(a)the applicant for the restraint order;

(b)any administrator appointed under section 125.

Realisation of property: generalS

128 Enforcement administratorsS

(1)This section applies if—

(a)a confiscation order is made,

(b)it is not satisfied, and

(c)it is not subject to appeal.

(2)In such a case the court may on the application of the prosecutor exercise the powers conferred on it by this section.

(3)The court may appoint an administrator in respect of realisable property.

(4)An appointment of an administrator may be made subject to conditions or exceptions.

(5)The court may confer the powers mentioned in subsection (6) on an administrator appointed under subsection (3) above.

(6)Those powers are—

(a)power to take possession of any realisable property;

(b)power to manage or otherwise deal with the property;

(c)power to realise any realisable property, in such manner as the court may specify.

(7)The court may order any person who has possession of realisable property to give possession of it to an administrator referred to in subsection (5).

(8)The clerk of court must notify the accused and any person subject to an order under subsection (7) of the making of the order.

(9)Any dealing of the accused or any such person in relation to property to which the order applies is of no effect in a question with the administrator unless the accused or, as the case may be, that person had no knowledge of the administrator’s appointment.

(10)The court—

(a)may order a person holding an interest in realisable property to make to the administrator such payment as the court specifies in respect of a beneficial interest held by the accused or the recipient of a tainted gift;

(b)may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

(11)The court must not—

(a)confer the power mentioned in subsection (6)(b) or (c) in respect of property, or

(b)exercise the power conferred on it by subsection (10) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

(12)Managing or otherwise dealing with property includes—

(a)selling the property or any part of it or interest in it;

(b)carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

(c)incurring capital expenditure in respect of the property.

(13)The court may order that a power conferred by an order under this section is subject to such conditions and exceptions as it specifies.

(14)Subsection (6) does not apply to property for the time being subject to a charge under—

(a)section 9 of the Drug Trafficking Offences Act 1986 (c. 32);

(b)section 78 of the Criminal Justice Act 1988 (c. 33);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 199/2588 (N.I. 17));

(d)section 27 of the Drug Trafficking Act 1994 (c. 37);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

129 Management administrators: dischargeS

(1)This section applies if—

(a)an administrator stands appointed under section 125 in respect of realisable property (the management administrator), and

(b)the court appoints an administrator under section 128.

(2)The court must order the management administrator to transfer to the other administrator all property held by him by virtue of the powers conferred on him by section 125.

(3)If the management administrator complies with an order under subsection (2) he is discharged—

(a)from his appointment under that section,

(b)from any obligation under this Act arising from his appointment.

130 Application of sums by enforcement administratorS

(1)This section applies to sums which—

(a)are in the hands of an administrator appointed under section 128(3), and

(b)fall within subsection (2).

(2)These sums fall within this subsection—

(a)the proceeds of the realisation of property under section 128(6)(c);

(b)any sums (other than those mentioned in paragraph (a)) in which the accused holds an interest.

(3)The sums must be applied as follows—

(a)first, they must be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under this subsection by virtue of section 432;

(b)second, they must be applied in making any payments as directed by the court;

(c)third, they must be applied on the accused’s behalf towards satisfaction of the confiscation order.

(4)If the amount payable under any confiscation order has been fully paid and any sums remain in the administrator’s hands he must distribute them—

(a)among such persons who held (or hold) interests in the property concerned as the court directs, and

(b)in such proportions as it directs.

(5)Before making a direction under subsection (4) the court must give persons who held (or hold) interests in the property concerned a reasonable opportunity to make representations to it.

(6)For the purposes of subsections (4) and (5) the property concerned is—

(a)the property represented by the proceeds mentioned in subsection (2)(a);

(b)the sums mentioned in subsection (2)(b).

(7)The administrator applies sums as mentioned in subsection (3)(c) by paying them to the appropriate clerk of court on account of the amount payable under the order.

(8)The appropriate clerk of court is the sheriff clerk of the sheriff court responsible for enforcing the confiscation order under section 211 of the Procedure Act as applied by section 118(1) of this Act.

131 Sums received by clerk of courtS

(1)This section applies if a clerk of court receives sums on account of the amount payable under a confiscation order (whether the sums are received under section 130 or otherwise).

(2)The clerk of court’s receipt of the sums reduces the amount payable under the order, but he must apply the sums received as follows.

(3)First he must apply them in payment of such expenses incurred by a person acting as an insolvency practitioner as—

(a)are payable under this subsection by virtue of section 432, but

(b)are not already paid under section 130(3)(a).

(4)If the Lord Advocate has reimbursed the administrator in respect of remuneration or expenses under section 133 the clerk of court must next apply the sums in reimbursing the Lord Advocate.

(5)If the clerk of court received the sums under section 130 he must next apply them in payment of the administrator’s remuneration and expenses.

(6)If a direction was made under section 97(6) for an amount of compensation to be paid out of sums recovered under the confiscation order, the clerk of court must next apply the sums in payment of that amount.

(7)If any amount remains after the clerk of court makes any payments required by the preceding provisions of this section, the amount must be disposed of in accordance with section 211(5) or (6) of the Procedure Act as applied by section 118(1) of this Act.

Exercise of powersS

132 Powers of court and administratorS

(1)This section applies to—

(a)the powers conferred on a court by sections 119 to 131, 134 to 136 and Schedule 3;

(b)the powers of an administrator appointed under section 125 or 128(3).

(2)The powers—

(a)must be exercised with a view to the value for the time being of realisable property being made available (by the property’s realisation) for satisfying any confiscation order that has been or may be made against the accused;

(b)must be exercised, in a case where a confiscation order has not been made, with a view to securing that there is no diminution in the value of realisable property or of the proceeds of realisation;

(c)must be exercised without taking account of any obligation of the accused or a recipient of a tainted gift if the obligation conflicts with the object of satisfying any confiscation order that has been or may be made against the accused;

(d)may be exercised in respect of a debt owed by the Crown.

(3)Subsection (2) has effect subject to the following rules—

(a)the powers must be exercised with a view to allowing a person other than the accused or a recipient of a tainted gift to retain or recover the value of any interest held by him;

(b)in the case of realisable property held by a recipient of a tainted gift, the powers must be exercised with a view to realising no more than the value for the time being of the gift;

(c)in a case where a confiscation order has not been made against the accused, property must not be realised if the court so orders under subsection (4).

(4)If on an application by the accused or by the recipient of a tainted gift the court decides that property cannot be replaced it may order that it must not be sold.

(5)An order under subsection (4) may be revoked or varied.

Administrators: generalS

133 Protection of administratorsS

(1)If an administrator appointed under section 125 or 128(3)—

(a)takes action in relation to property which is not realisable property,

(b)would be entitled to take the action if it were realisable property, and

(c)believes on reasonable grounds that he is entitled to take the action,

he is not liable to any person in respect of any loss or damage resulting from the action, except so far as the loss or damage is caused by his negligence.

(2)Subsection (3) applies if an administrator incurs expenses in the exercise of his functions at a time when—

(a)a confiscation order has not been made, or

(b)a confiscation order has been made but the administrator has recovered no money.

(3)As soon as is practicable after they have been incurred the expenses must be reimbursed by the Lord Advocate.

(4)Subsection (5) applies if—

(a)an amount is due in respect of the administrator’s remuneration and expenses, but

(b)nothing (or not enough) is available to be applied in payment of them under section 131(4).

(5)The remuneration and expenses must be paid (or must be paid to the extent of the shortfall) by the Lord Advocate.

134 Protection of persons affectedS

(1)This section applies where an administrator is appointed under section 125 or 128(3).

(2)The following persons may apply to the court—

(a)any person affected by action taken by the administrator;

(b)any person who may be affected by action the administrator proposes to take.

(3)On an application under this section the court may make such order as it thinks appropriate.

135 Recall and variation of orderS

(1)The prosecutor, an administrator and any other person affected by an order made under section 125 or 128 may apply to the court to vary or recall the order.

(2)On an application under this section the court—

(a)may vary the order;

(b)may recall the order.

(3)But in the case of an order under section 125—

(a)if the condition in section 119 which was satisfied was that proceedings were started or an application was made, the court must recall the order on the conclusion of the proceedings or of the application (as the case may be);

(b)if the condition which was satisfied was that an investigation was started or an application was to be made, the court must recall the order if within a reasonable time proceedings for the offence are not started or the application is not made (as the case may be).

136 AppealsS

(1)If on an application for an order under section 125 or 128 the court decides not to make one, the prosecutor may appeal to the Court of Session against the decision.

(2)If the court makes an order under section 125 or 128 the following persons may appeal to the Court of Session in respect of the court’s decision—

(a)the prosecutor;

(b)any person affected by the order.

(3)If on an application for an order under section 134 the court decides not to make one, the person who applied for the order may appeal to the Court of Session against the decision.

(4)If the court makes an order under section 134, the following persons may appeal to the Court of Session in respect of the court’s decision—

(a)the person who applied for the order;

(b)any person affected by the order;

(c)the administrator.

(5)The following persons may appeal to the Court of Session against a decision of the court on an application under section 135—

(a)the person who applied for the order in respect of which the application was made;

(b)any person affected by the court’s decision;

(c)the administrator.

(6)On an appeal under this section the Court of Session may—

(a)confirm the decision, or

(b)make such order as it believes is appropriate.

137 Administrators: further provisionS

Schedule 3, which makes further provision about administrators appointed under section 125 and 128(3), has effect.

138 Administrators: restriction on proceedings and remediesS

(1)Where an administrator is appointed under section 128, the court may sist any action, execution or other legal process in respect of the property to which the order appointing the administrator relates.

(2)If a court (whether the Court of Session or any other court) in which proceedings are pending in respect of any property is satisfied that an application has been made for the appointment of an administrator or that an administrator has been appointed in relation to that property, the court may either sist the proceedings or allow them to continue on any terms it thinks fit.

(3)Before exercising any power conferred by subsection (2) the court must give an opportunity to be heard to—

(a)the prosecutor;

(b)if appointed, the administrator.

CompensationS

139 Serious defaultS

(1)If the following three conditions are satisfied the court may order the payment of such compensation as it thinks is just.

(2)The first condition is satisfied if a criminal investigation has been instituted with regard to an offence and proceedings are not instituted for the offence.

(3)The first condition is also satisfied if proceedings for an offence are instituted against a person and—

(a)they do not result in his conviction for the offence, or

(b)he is convicted of the offence but the conviction is quashed or he is pardoned in respect of it.

(4)If subsection (2) applies the second condition is that—

(a)in the criminal investigation there has been a serious default by a person mentioned in subsection (9), and

(b)the investigation would not have continued if the default had not occurred.

(5)If subsection (3) applies the second condition is that—

(a)in the criminal investigation with regard to the offence or in its prosecution there has been a serious default by a person mentioned in subsection (9), and

(b)the proceedings would not have been instituted or continued if the default had not occurred.

(6)The third condition is that an application is made under this section by a person who held realisable property and has suffered loss in consequence of anything done in relation to it by or in pursuance of an order under this Part.

(7)The offence referred to in subsection (2) may be one of a number of offences with regard to which the investigation is instituted.

(8)The offence referred to in subsection (3) may be one of a number of offences for which the proceedings are instituted.

(9)Compensation under this section is payable to the applicant and—

(a)if the person in default was a constable of a police force (within the meaning of the Police (Scotland) Act 1967 (c. 77)), the compensation is payable by the police authority or joint police board for the police area for which that force is maintained;

(b)if the person in default was a constable not falling within paragraph (a), the compensation is payable by the body under whose authority he acts;

(c)if the person in default was a procurator fiscal or was acting on behalf of the Lord Advocate, the compensation is payable by the Lord Advocate;

(d)if the person in default was a customs officer, the compensation is payable by the Commissioners of Customs and Excise;

(e)if the person in default was an officer of the Commissioners of Inland Revenue, the compensation is payable by those Commissioners.

(10)Nothing in this section affects any delictual liability in relation to a serious default.

140 Confiscation order varied or dischargedS

(1)This section applies if—

(a)the court varies a confiscation order under section 113 or discharges one under section 114, and

(b)an application is made to the court by a person who held realisable property and has suffered loss as a result of the making of the order.

(2)The court may order the payment to the applicant of such compensation as it believes is just.

(3)Compensation payable under this section is payable by the Lord Advocate.

Enforcement abroadS

141 Enforcement abroadS

(1)This section applies if—

(a)any of the conditions in section 119 are satisfied,

(b)the prosecutor believes that realisable property is situated in a country or territory outside the United Kingdom (the receiving country), and

(c)the prosecutor sends a request for assistance to the Secretary of State with a view to it being forwarded under this section.

(2)In a case where no confiscation order has been made, a request for assistance is a request to the government of the receiving country to secure that any person is prohibited from dealing with realisable property.

(3)In a case where a confiscation order has been made and has not been satisfied, discharged or quashed, a request for assistance is a request to the government of the receiving country to secure that—

(a)any person is prohibited from dealing with realisable property,

(b)realisable property is realised and the proceeds are applied in accordance with the law of the receiving country.

(4)No request for assistance may be made for the purposes of this section in a case where a confiscation order has been made and has been satisfied, discharged or quashed.

(5)If the Secretary of State believes it is appropriate to do so he may forward the request for assistance to the government of the receiving country.

(6)If property is realised in pursuance of a request under subsection (3) the amount ordered to be paid under the confiscation order must be taken to be reduced by an amount equal to the proceeds of the realisation.

(7)A certificate purporting to be issued by or on behalf of the requested government is sufficient evidence of the facts it states if it states—

(a)that the property has been realised in pursuance of a request under subsection (3),

(b)the date of realisation, and

(c)the proceeds of realisation.

(8)If the proceeds of realisation made in pursuance of a request under subsection (3) are expressed in a currency other than sterling, they must be taken to be the sterling equivalent calculated in accordance with the rate of exchange prevailing at the end of the day of realisation.

InterpretationS

142 Criminal lifestyleS

(1)An accused has a criminal lifestyle if (and only if) the offence (or any of the offences) concerned satisfies any of these tests—

(a)it is specified in Schedule 4;

(b)it constitutes conduct forming part of a course of criminal activity;

(c)it is an offence committed over a period of at least six months and the accused has benefited from the conduct which constitutes the offence.

(2)Conduct forms part of a course of criminal activity if the accused has benefited from the conduct and—

(a)in the proceedings in which he was convicted he was convicted of three or more other offences, each of three or more of them constituting conduct from which he has benefited, or

(b)in the period of six years ending with the day when those proceedings were instituted (or, if there is more than one such day, the earliest day) he was convicted on at least two separate occasions of an offence constituting conduct from which he has benefited.

(3)But an offence does not satisfy the test in subsection (1)(b) or (c) unless the accused obtains relevant benefit of not less than £5000.

(4)Relevant benefit for the purposes of subsection (1)(b) is—

(a)benefit from conduct which constitutes the offence;

(b)benefit from any other conduct which forms part of the course of criminal activity and which constitutes an offence of which the accused has been convicted.

(5)Relevant benefit for the purposes of subsection (1)(c) is benefit from conduct which constitutes the offence.

(6)The Scottish Ministers may by order amend Schedule 4.

(7)The Scottish Ministers may by order vary the amount for the time being specified in subsection (3).

143 Conduct and benefitS

(1)Criminal conduct is conduct which—

(a)constitutes an offence in Scotland, or

(b)would constitute such an offence if it had occurred in Scotland.

(2)General criminal conduct of the accused is all his criminal conduct, and it is immaterial—

(a)whether conduct occurred before or after the passing of this Act;

(b)whether property constituting a benefit from conduct was obtained before or after the passing of this Act.

(3)Particular criminal conduct of the accused is all his criminal conduct which falls within the following paragraphs—

(a)conduct which constitutes the offence or offences concerned;

(b)conduct which constitutes offences of which he was convicted in the same proceedings as those in which he was convicted of the offence or offences concerned.

(4)A person benefits from conduct if he obtains property as a result of or in connection with the conduct.

(5)If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage.

(6)References to property or a pecuniary advantage obtained in connection with conduct include references to property or a pecuniary advantage obtained both in that connection and in some other.

(7)If a person benefits from conduct his benefit is the value of the property obtained.

144 Tainted gifts and their recipientsS

(1)Subsections (2) and (3) apply if—

(a)no court has made a decision as to whether the accused has a criminal lifestyle, or

(b)a court has decided that the accused has a criminal lifestyle.

(2)A gift is tainted if it was made by the accused at any time after the relevant day.

(3)A gift is also tainted if it was made by the accused at any time and was of property—

(a)which was obtained by the accused as a result of or in connection with his general criminal conduct, or

(b)which (in whole or part and whether directly or indirectly) represented in the accused’s hands property obtained by him as a result of or in connection with his general criminal conduct.

(4)Subsection (5) applies if a court has decided that an accused does not have a criminal lifestyle.

(5)A gift is tainted if it was made by the accused at any time after—

(a)the date on which the offence concerned was committed, or

(b)if his particular criminal conduct consists of two or more offences and they were committed on different dates, the earliest of those dates.

(6)For the purposes of subsection (5) an offence which is a continuing offence is committed on the first occasion when it is committed.

(7)A gift may be a tainted gift whether it was made before or after the passing of this Act.

(8)The relevant day is the first day of the period of six years ending with—

(a)the day when proceedings for the offence concerned were instituted against the accused, or

(b)if there are two or more offences and proceedings for them were instituted on different days, the earliest of those days.

(9)If the accused transfers property to another person (whether directly or indirectly) for a consideration whose value is significantly less than the value of the property at the time of the transfer, he is to be treated as making a gift.

(10)If subsection (9) applies the property given is to be treated as such share in the property transferred as is represented by the fraction—

(a)whose numerator is the difference between the two values mentioned in subsection (9), and

(b)whose denominator is the value of the property at the time of the transfer.

(11)References to a recipient of a tainted gift are to a person to whom the accused has (whether directly or indirectly) made the gift.

145 Value: the basic ruleS

(1)This section applies for the purpose of deciding the value at any time of property then held by a person.

(2)Its value is the market value of the property at that time.

(3)But if at that time another person holds an interest in the property its value, in relation to the person mentioned in subsection (1), is the market value of his interest at that time ignoring any charging order under a provision listed in subsection (4).

(4)The provisions are—

(a)section 9 of the Drug Trafficking Offences Act 1986 (c. 32);

(b)section 78 of the Criminal Justice Act 1988 (c. 33);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 199/2588 (N.I. 17));

(d)section 27 of the Drug Trafficking Act 1994 (c. 37);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

(5)This section has effect subject to sections 146 and 147.

146 Value of property obtained from conductS

(1)This section applies for the purpose of deciding the value of property obtained by a person as a result of or in connection with his criminal conduct; and the material time is the time the court makes its decision.

(2)The value of the property at the material time is the greater of the following—

(a)the value of the property (at the time the person obtained it) adjusted to take account of later changes in the value of money;

(b)the value (at the material time) of the property found under subsection (3).

(3)The property found under this subsection is—

(a)if the person holds the property obtained, that property;

(b)if he holds no part of the property obtained, any property which directly or indirectly represents it in his hands;

(c)if he holds part of the property obtained, that part and any property which directly or indirectly represents the other part in his hands.

(4)The references in subsection (2)(a) and (b) to the value are to the value found in accordance with section 145.

147 Value of tainted giftsS

(1)The value at any time (the material time) of a tainted gift is the greater of the following—

(a)the value (at the time of the gift) of the property given, adjusted to take account of later changes in the value of money;

(b)the value (at the material time) of the property found under subsection (2).

(2)The property found under this subsection is—

(a)if the recipient holds the property given, that property;

(b)if the recipient holds no part of the property given, any property which directly or indirectly represents it in his hands;

(c)if the recipient holds part of the property given, that part and any property which directly or indirectly represents the other part in his hands.

(3)The references in subsection (1)(a) and (b) to the value are to the value found in accordance with section 145.

148 Free propertyS

Property is free unless an order is in force in respect of it under—

(a)section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders),

(b)Article 11 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15) (deprivation orders),

(c)Part 2 of the Proceeds of Crime (Scotland) Act 1995 (c. 43) (forfeiture of property used in crime),

(d)section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (deprivation orders),

(e)section 23 or 111 of the Terrorism Act 2000 (c. 11) (forfeiture orders), or

(f)section 246, 266, 295(2) or 298(2) of this Act.

149 Realisable propertyS

Realisable property is—

(a)any free property held by the accused;

(b)any free property held by the recipient of a tainted gift.

150 Property: general provisionsS

(1)Property is all property wherever situated and includes—

(a)money;

(b)all forms of property whether heritable or moveable and whether corporeal or incorporeal.

(2)The following rules apply in relation to property—

(a)property is held by a person if he holds an interest in it;

(b)property is obtained by a person if he obtains an interest in it;

(c)property is transferred by one person to another if the first one transfers or grants an interest in it to the second;

(d)references to property held by a person include references to his property vested in his permanent or interim trustee (within the meaning of the Bankruptcy (Scotland) Act 1985 (c. 66)), trustee in bankruptcy or liquidator;

(e)references to an interest held by a person beneficially in property include references to an interest which would be held by him beneficially if the property were not so vested;

(f)references to an interest, in relation to land in England, Wales or Northern Ireland, are to any legal estate or equitable interest or power;

(g)references to an interest, in relation to land in Scotland, are to any estate, interest, servitude or other heritable right in or over land, including a heritable security;

(h)references to an interest, in relation to property other than land, include references to a right (including a right to possession).

151 ProceedingsS

(1)Proceedings for an offence are instituted against a person—

(a)on his arrest without warrant;

(b)when he is charged with the offence without being arrested;

(c)when a warrant to arrest him is granted;

(d)when a warrant to cite him is granted;

(e)when he first appears on petition or when an indictment or complaint is served on him.

(2)If more than one time is found under subsection (1) in relation to proceedings they are instituted at the earliest of those times.

(3)Proceedings for an offence are concluded when—

(a)the trial diet is deserted simpliciter,

(b)the accused is acquitted or, under section 65 or 147 of the Procedure Act, discharged or liberated,

(c)the court sentences the accused without making a confiscation order and without postponing a decision as regards making such an order,

(d)the court decides, after such a postponement, not to make a confiscation order,

(e)the accused’s conviction is quashed, or

(f)the accused is pardoned.

(4)If a confiscation order is made against the accused in proceedings for an offence, the proceedings are concluded—

(a)when the order is satisfied or discharged, or

(b)when the order is quashed and there is no further possibility of an appeal against the decision to quash the order.

(5)If—

(a)the accused is convicted in proceedings for an offence but the court decides not to make a confiscation order against him, and

(b)on appeal under section 108(1)(ca) or 175(4)(ca) of the Procedure Act, the High Court of Justiciary refuses the appeal,

the proceedings are concluded on the determination of the appeal.

152 ApplicationsS

(1)An application under section 104, 105, 111 or 112 is concluded—

(a)in a case where the court decides not to make a confiscation order against the accused, when it makes the decision;

(b)in a case where a confiscation order is made against him as a result of the application, when the order is satisfied or discharged, or when the order is quashed and there is no further possibility of an appeal against the decision to quash the order;

(c)in a case where the application is withdrawn, when the prosecutor notifies the withdrawal to the court to which the application was made.

(2)An application under section 106 or 107 is concluded—

(a)in a case where the court decides not to vary the confiscation order concerned, when it makes the decision;

(b)in a case where the court varies the confiscation order as a result of the application, when the order is satisfied or discharged, or when the order is quashed and there is no further possibility of an appeal against the decision to quash the order;

(c)in a case where the application is withdrawn, when the prosecutor notifies the withdrawal to the court to which the application was made.

153 Satisfaction of confiscation ordersS

(1)A confiscation order is satisfied—

(a)when no amount is due under it;

(b)where the accused against whom it was made serves a term of imprisonment or detention in default of payment of the amount due under the order, on the completion of that term of imprisonment or detention.

(2)A confiscation order is subject to appeal until there is no further possibility of an appeal on which the order could be varied or quashed; and for this purpose any power to grant leave to appeal out of time must be ignored.

154 Other interpretative provisionsS

(1)In this Part—

  • accused” means a person against whom proceedings for an offence have been instituted (whether or not he has been convicted);

  • clerk of court” includes the sheriff clerk;

  • confiscation order” means an order under section 92;

  • conviction”, in relation to an offence, includes a finding that the offence has been committed;

  • court” must be construed in accordance with sections 92(13) and 119(10);

  • criminal investigation” means an investigation which police officers or other persons have a duty to conduct with a view to it being ascertained whether a person should be charged with an offence;

  • the Procedure Act” means the Criminal Procedure (Scotland) Act 1995 (c. 46);

  • restraint order” means an order under section 120.

(2)A reference to the offence (or offences) concerned must be construed in accordance with section 92(12).

(3)A reference to sentencing the accused for an offence includes a reference to dealing with him otherwise in respect of the offence.

GeneralS

155 Rules of courtS

(1)Provision may be made by act of sederunt as to—

(a)giving notice or serving any document for the purposes of this Part;

(b)the accountant of court’s functions under Schedule 3;

(c)the accounts to be kept by the administrator in relation to the exercise of his functions.

(2)Subsection (1) is without prejudice to section 32 of the Sheriff Courts (Scotland) Act 1971 (c. 58) or section 5 of the Court of Session Act 1988 (c. 36).

Part 4 N.I.Confiscation: Northern Ireland

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

Confiscation ordersN.I.

156 Making of orderN.I.

(1)The Crown Court must proceed under this section if the following two conditions are satisfied.

(2)The first condition is that a defendant falls within either of the following paragraphs—

(a)he is convicted of an offence or offences in proceedings before the Crown Court;

(b)he is committed to the Crown Court in respect of an offence or offences under section 218 below (committal with a view to a confiscation order being considered).

(3)The second condition is that—

(a)the prosecutor or the Director asks the court to proceed under this section, or

(b)the court believes it is appropriate for it to do so.

(4)The court must proceed as follows—

(a)it must decide whether the defendant has a criminal lifestyle;

(b)if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct;

(c)if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct.

(5)If the court decides under subsection (4)(b) or (c) that the defendant has benefited from the conduct referred to it must—

(a)decide the recoverable amount, and

(b)make an order (a confiscation order) requiring him to pay that amount.

(6)But the court must treat the duty in subsection (5) as a power if it believes that any victim of the conduct has at any time started or intends to start proceedings against the defendant in respect of loss, injury or damage sustained in connection with the conduct.

(7)The court must decide any question arising under subsection (4) or (5) on a balance of probabilities.

(8)The first condition is not satisfied if the defendant absconds (but section 177 may apply).

(9)References in this Part to the offence (or offences) concerned are to the offence (or offences) mentioned in subsection (2).

157 Recoverable amountN.I.

(1)The recoverable amount for the purposes of section 156 is an amount equal to the defendant’s benefit from the conduct concerned.

(2)But if the defendant shows that the available amount is less than that benefit the recoverable amount is—

(a)the available amount, or

(b)a nominal amount, if the available amount is nil.

(3)But if section 156(6) applies the recoverable amount is such amount as—

(a)the court believes is just, but

(b)does not exceed the amount found under subsection (1) or (2) (as the case may be).

(4)In calculating the defendant’s benefit from the conduct concerned for the purposes of subsection (1), any property in respect of which—

(a)a recovery order is in force under section 266, or

(b)a forfeiture order is in force under section 298(2),

must be ignored.

(5)If the court decides the available amount, it must include in the confiscation order a statement of its findings as to the matters relevant for deciding that amount.

158 Defendant’s benefitN.I.

(1)If the court is proceeding under section 156 this section applies for the purpose of—

(a)deciding whether the defendant has benefited from conduct, and

(b)deciding his benefit from the conduct.

(2)The court must—

(a)take account of conduct occurring up to the time it makes its decision;

(b)take account of property obtained up to that time.

(3)Subsection (4) applies if—

(a)the conduct concerned is general criminal conduct,

(b)a confiscation order mentioned in subsection (5) has at an earlier time been made against the defendant, and

(c)his benefit for the purposes of that order was benefit from his general criminal conduct.

(4)His benefit found at the time the last confiscation order mentioned in subsection (3)(c) was made against him must be taken for the purposes of this section to be his benefit from his general criminal conduct at that time.

(5)If the conduct concerned is general criminal conduct the court must deduct the aggregate of the following amounts—

(a)the amount ordered to be paid under each confiscation order previously made against the defendant;

(b)the amount ordered to be paid under each confiscation order previously made against him under any of the provisions listed in subsection (7).

(6)But subsection (5) does not apply to an amount which has been taken into account for the purposes of a deduction under that subsection on any earlier occasion.

(7)These are the provisions—

(a)the Drug Trafficking Offences Act 1986 (c. 32);

(b)Part 1 of the Criminal Justice (Scotland) Act 1987 (c. 41);

(c)Part 6 of the Criminal Justice Act 1988 (c. 33);

(d)the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));

(e)Part 1 of the Drug Trafficking Act 1994 (c. 37);

(f)Part 1 of the Proceeds of Crime (Scotland) Act 1995 (c. 43);

(g)the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9));

(h)Part 2 or 3 of this Act.

(8)The reference to general criminal conduct in the case of a confiscation order made under any of the provisions listed in subsection (7) is a reference to conduct in respect of which a court is required or entitled to make one or more assumptions for the purpose of assessing a person’s benefit from the conduct.

159 Available amountN.I.

(1)For the purposes of deciding the recoverable amount, the available amount is the aggregate of—

(a)the total of the values (at the time the confiscation order is made) of all the free property then held by the defendant minus the total amount payable in pursuance of obligations which then have priority, and

(b)the total of the values (at that time) of all tainted gifts.

(2)An obligation has priority if it is an obligation of the defendant—

(a)to pay an amount due in respect of a fine or other order of a court which was imposed or made on conviction of an offence and at any time before the time the confiscation order is made, or

(b)to pay a sum which would be included among the preferential debts if the defendant’s bankruptcy had commenced on the date of the confiscation order or his winding up had been ordered on that date.

(3)Preferential debts” has the meaning given by Article 346 of the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)).

160 Assumptions to be made in case of criminal lifestyleN.I.

(1)If the court decides under section 156 that the defendant has a criminal lifestyle it must make the following four assumptions for the purpose of—

(a)deciding whether he has benefited from his general criminal conduct, and

(b)deciding his benefit from the conduct.

(2)The first assumption is that any property transferred to the defendant at any time after the relevant day was obtained by him—

(a)as a result of his general criminal conduct, and

(b)at the earliest time he appears to have held it.

(3)The second assumption is that any property held by the defendant at any time after the date of conviction was obtained by him—

(a)as a result of his general criminal conduct, and

(b)at the earliest time he appears to have held it.

(4)The third assumption is that any expenditure incurred by the defendant at any time after the relevant day was met from property obtained by him as a result of his general criminal conduct.

(5)The fourth assumption is that, for the purpose of valuing any property obtained (or assumed to have been obtained) by the defendant, he obtained it free of any other interests in it.

(6)But the court must not make a required assumption in relation to particular property or expenditure if—

(a)the assumption is shown to be incorrect, or

(b)there would be a serious risk of injustice if the assumption were made.

(7)If the court does not make one or more of the required assumptions it must state its reasons.

(8)The relevant day is the first day of the period of six years ending with—

(a)the day when proceedings for the offence concerned were started against the defendant, or

(b)if there are two or more offences and proceedings for them were started on different days, the earliest of those days.

(9)But if a confiscation order mentioned in section 158(3)(c) has been made against the defendant at any time during the period mentioned in subsection (8)—

(a)the relevant day is the day when the defendant’s benefit was calculated for the purposes of the last such confiscation order;

(b)the second assumption does not apply to any property which was held by him on or before the relevant day.

(10)The date of conviction is—

(a)the date on which the defendant was convicted of the offence concerned, or

(b)if there are two or more offences and the convictions were on different dates, the date of the latest.

161 Time for paymentN.I.

(1)The amount ordered to be paid under a confiscation order must be paid on the making of the order; but this is subject to the following provisions of this section.

(2)If the defendant shows that he needs time to pay the amount ordered to be paid, the court making the confiscation order may make an order allowing payment to be made in a specified period.

(3)The specified period—

(a)must start with the day on which the confiscation order is made, and

(b)must not exceed six months.

(4)If within the specified period the defendant applies to the Crown Court for the period to be extended and the court believes there are exceptional circumstances, it may make an order extending the period.

(5)The extended period—

(a)must start with the day on which the confiscation order is made, and

(b)must not exceed 12 months.

(6)An order under subsection (4)—

(a)may be made after the end of the specified period, but

(b)must not be made after the end of the period of 12 months starting with the day on which the confiscation order is made.

(7)The court must not make an order under subsection (2) or (4) unless it gives—

(a)the prosecutor, or

(b)if the Director was appointed as the enforcement authority for the order under section 184, the Director,

an opportunity to make representations.

162 Interest on unpaid sumsN.I.

(1)If the amount required to be paid by a person under a confiscation order is not paid when it is required to be paid, he must pay interest on the amount for the period for which it remains unpaid.

(2)The rate of interest is the same rate as that for the time being applying to a money judgment of the High Court.

(3)For the purposes of this section no amount is required to be paid under a confiscation order if—

(a)an application has been made under section 161(4),

(b)the application has not been determined by the court, and

(c)the period of 12 months starting with the day on which the confiscation order was made has not ended.

(4)In applying this Part the amount of the interest must be treated as part of the amount to be paid under the confiscation order.

163 Effect of order on court’s other powersN.I.

(1)If the court makes a confiscation order it must proceed as mentioned in subsections (2) and (4) in respect of the offence or offences concerned.

(2)The court must take account of the confiscation order before—

(a)it imposes a fine on the defendant, or

(b)it makes an order falling within subsection (3).

(3)These orders fall within this subsection—

(a)an order involving payment by the defendant, other than an order under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (compensation orders);

(b)an order under section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders);

(c)an order under Article 11 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (deprivation orders);

(d)an order under section 23 or 111 of the Terrorism Act 2000 (c. 11) (forfeiture orders).

(4)Subject to subsection (2), the court must leave the confiscation order out of account in deciding the appropriate sentence for the defendant.

(5)Subsection (6) applies if—

(a)a court makes both a confiscation order and an order for the payment of compensation under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) against the same person in the same proceedings, and

(b)the court believes he will not have sufficient means to satisfy both the orders in full.

(6)In such a case the court must direct that so much of the compensation as it specifies is to be paid out of any sums recovered under the confiscation order; and the amount it specifies must be the amount it believes will not be recoverable because of the insufficiency of the person’s means.

Procedural mattersN.I.

164 PostponementN.I.

(1)The court may—

(a)proceed under section 161 before it sentences the defendant for the offence (or any of the offences) concerned, or

(b)postpone proceedings under section 161 for a specified period.

(2)A period of postponement may be extended.

(3)A period of postponement (including one as extended) must not end after the permitted period ends.

(4)But subsection (3) does not apply if there are exceptional circumstances.

(5)The permitted period is the period of two years starting with the date of conviction.

(6)But if—

(a)the defendant appeals against his conviction for the offence (or any of the offences) concerned, and

(b)the period of three months (starting with the day when the appeal is determined or otherwise disposed of) ends after the period found under subsection (5),

the permitted period is that period of three months.

(7)A postponement or extension may be made—

(a)on application by the defendant;

(b)on application by the prosecutor or the Director (as the case may be);

(c)by the court of its own motion.

(8)If—

(a)proceedings are postponed for a period, and

(b)an application to extend the period is made before it ends,

the application may be granted even after the period ends.

(9)The date of conviction is—

(a)the date on which the defendant was convicted of the offence concerned, or

(b)if there are two or more offences and the convictions were on different dates, the date of the latest.

(10)References to appealing include references to applying under Article 146 of the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)) (statement of case).

(11)A confiscation order must not be quashed only on the ground that there was a defect or omission in the procedure connected with the application for or the granting of a postponement.

(12)But subsection (11) does not apply if before it made the confiscation order the court—

(a)imposed a fine on the defendant;

(b)made an order falling within section 163(3);

(c)made an order under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (compensation orders).

165 Effect of postponementN.I.

(1)If the court postpones proceedings under section 156 it may proceed to sentence the defendant for the offence (or any of the offences) concerned.

(2)In sentencing the defendant for the offence (or any of the offences) concerned in the postponement period the court must not—

(a)impose a fine on him,

(b)make an order falling within section 163(3), or

(c)make an order for the payment of compensation under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)).

(3)If the court sentences the defendant for the offence (or any of the offences) concerned in the postponement period, after that period ends it may vary the sentence by—

(a)imposing a fine on him,

(b)making an order falling within section 163(3), or

(c)making an order for the payment of compensation under Article 14 of the Criminal Justice (Northern Ireland) Order 1994.

(4)But the court may proceed under subsection (3) only within the period of 28 days which starts with the last day of the postponement period.

(5)For the purposes of—

(a)section 16(1) of the Criminal Appeal (Northern Ireland) Act 1980 (c. 47) (time limit for notice of appeal or of application for leave to appeal), and

(b)paragraph 1 of Schedule 3 to the Criminal Justice Act 1988 (c. 33) (time limit for notice of application for leave to refer a case under section 36 of that Act),

the sentence must be regarded as imposed or made on the day on which it is varied under subsection (3).

(6)If the court proceeds to sentence the defendant under subsection (1), section 156 has effect as if the defendant’s particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

(7)The postponement period is the period for which proceedings under section 156 are postponed.

166 Statement of informationN.I.

(1)If the court is proceeding under section 156 in a case where section 156(3)(a) applies, the prosecutor or the Director (as the case may be) must give the court a statement of information within the period the court orders.

(2)If the court is proceeding under section 156 in a case where section 156(3)(b) applies and it orders the prosecutor to give it a statement of information, the prosecutor must give it such a statement within the period the court orders.

(3)If the prosecutor or the Director (as the case may be) believes the defendant has a criminal lifestyle the statement of information is a statement of matters the prosecutor or the Director believes are relevant in connection with deciding these issues—

(a)whether the defendant has a criminal lifestyle;

(b)whether he has benefited from his general criminal conduct;

(c)his benefit from the conduct.

(4)A statement under subsection (3) must include information the prosecutor or Director believes is relevant—

(a)in connection with the making by the court of a required assumption under section 160;

(b)for the purpose of enabling the court to decide if the circumstances are such that it must not make such an assumption.

(5)If the prosecutor or the Director (as the case may be) does not believe the defendant has a criminal lifestyle the statement of information is a statement of matters the prosecutor or the Director believes are relevant in connection with deciding these issues—

(a)whether the defendant has benefited from his particular criminal conduct;

(b)his benefit from the conduct.

(6)If the prosecutor or the Director gives the court a statement of information—

(a)he may at any time give the court a further statement of information;

(b)he must give the court a further statement of information if it orders him to do so, and he must give it within the period the court orders.

(7)If the court makes an order under this section it may at any time vary it by making another one.

167 Defendant’s response to statement of informationN.I.

(1)If the prosecutor or the Director gives the court a statement of information and a copy is served on the defendant, the court may order the defendant—

(a)to indicate (within the period it orders) the extent to which he accepts each allegation in the statement, and

(b)so far as he does not accept such an allegation, to give particulars of any matters he proposes to rely on.

(2)If the defendant accepts to any extent an allegation in a statement of information the court may treat his acceptance as conclusive of the matters to which it relates for the purpose of deciding the issues referred to in section 166(3) or (5) (as the case may be).

(3)If the defendant fails in any respect to comply with an order under subsection (1) he may be treated for the purposes of subsection (2) as accepting every allegation in the statement of information apart from—

(a)any allegation in respect of which he has complied with the requirement;

(b)any allegation that he has benefited from his general or particular criminal conduct.

(4)For the purposes of this section an allegation may be accepted or particulars may be given in a manner ordered by the court.

(5)If the court makes an order under this section it may at any time vary it by making another one.

(6)No acceptance under this section that the defendant has benefited from conduct is admissible in evidence in proceedings for an offence.

168 Provision of information by defendantN.I.

(1)This section applies if—

(a)the court is proceeding under section 156 in a case where section 156(3)(a) applies, or

(b)it is proceeding under section 156 in a case where section 156(3)(b) applies or it is considering whether to proceed.

(2)For the purpose of obtaining information to help it in carrying out its functions the court may at any time order the defendant to give it information specified in the order.

(3)An order under this section may require all or a specified part of the information to be given in a specified manner and before a specified date.

(4)If the defendant fails without reasonable excuse to comply with an order under this section the court may draw such inference as it believes is appropriate.

(5)Subsection (4) does not affect any power of the court to deal with the defendant in respect of a failure to comply with an order under this section.

(6)If the prosecutor or the Director (as the case may be) accepts to any extent an allegation made by the defendant—

(a)in giving information required by an order under this section, or

(b)in any other statement given to the court in relation to any matter relevant to deciding the available amount under section 159,

the court may treat the acceptance as conclusive of the matters to which it relates.

(7)For the purposes of this section an allegation may be accepted in a manner ordered by the court.

(8)If the court makes an order under this section it may at any time vary it by making another one.

(9)No information given under this section which amounts to an admission by the defendant that he has benefited from criminal conduct is admissible in evidence in proceedings for an offence.

ReconsiderationN.I.

169 No order made: reconsideration of caseN.I.

(1)This section applies if—

(a)the first condition in section 156 is satisfied but no court has proceeded under that section,

(b)there is evidence which was not available to the prosecutor on the relevant date,

(c)before the end of the period of six years starting with the date of conviction the prosecutor or the Director applies to the Crown Court to consider the evidence, and

(d)after considering the evidence the court believes it is appropriate for it to proceed under section 156.

(2)If this section applies the court must proceed under section 156, and when it does so subsections (3) to (8) below apply.

(3)If the court has already sentenced the defendant for the offence (or any of the offences) concerned, section 156 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

(4)Section 158(2) does not apply, and the rules applying instead are that the court must—

(a)take account of conduct occurring before the relevant date;

(b)take account of property obtained before that date;

(c)take account of property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

(5)In section 160—

(a)the first and second assumptions do not apply with regard to property first held by the defendant on or after the relevant date;

(b)the third assumption does not apply with regard to expenditure incurred by him on or after that date;

(c)the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

(6)The recoverable amount for the purposes of section 156 is such amount as—

(a)the court believes is just, but

(b)does not exceed the amount found under section 157.

(7)In arriving at the just amount the court must have regard in particular to—

(a)the amount found under section 157;

(b)any fine imposed on the defendant in respect of the offence (or any of the offences) concerned;

(c)any order which falls within section 163(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by the court in deciding what is the free property held by him for the purposes of section 159;

(d)any order which has been made against him in respect of the offence (or any of the offences) concerned under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (compensation orders).

(8)If an order for the payment of compensation under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 has been made against the defendant in respect of the offence or offences concerned, section 163(5) and (6) above do not apply.

(9)The relevant date is—

(a)if the court made a decision not to proceed under section 156, the date of the decision;

(b)if the court did not make such a decision, the date of conviction.

(10)The date of conviction is—

(a)the date on which the defendant was convicted of the offence concerned, or

(b)if there are two or more offences and the convictions were on different dates, the date of the latest.

170 No order made: reconsideration of benefitN.I.

(1)This section applies if the following two conditions are satisfied.

(2)The first condition is that in proceeding under section 156 the court has decided that—

(a)the defendant has a criminal lifestyle but has not benefited from his general criminal conduct, or

(b)the defendant does not have a criminal lifestyle and has not benefited from his particular criminal conduct.

(3)If the court proceeded under section 156 because the Director asked it to, the second condition is that—

(a)the Director has evidence which was not available to him when the court decided that the defendant had not benefited from his general or particular criminal conduct,

(b)before the end of the period of six years starting with the date of conviction the Director applies to the Crown Court to consider the evidence, and

(c)after considering the evidence the court concludes that it would have decided that the defendant had benefited from his general or particular criminal conduct (as the case may be) if the evidence had been available to it.

(4)If the court proceeded under section 156 because the prosecutor asked it to or because it believed it was appropriate for it to do so, the second condition is that—

(a)there is evidence which was not available to the prosecutor when the court decided that the defendant had not benefited from his general or particular criminal conduct,

(b)before the end of the period of six years starting with the date of conviction the prosecutor or the Director applies to the Crown Court to consider the evidence, and

(c)after considering the evidence the court concludes that it would have decided that the defendant had benefited from his general or particular criminal conduct (as the case may be) if the evidence had been available to it.

(5)If this section applies the court—

(a)must make a fresh decision under section 156(4)(b) or (c) whether the defendant has benefited from his general or particular criminal conduct (as the case may be);

(b)may make a confiscation order under that section.

(6)Subsections (7) to (12) below apply if the court proceeds under section 156 in pursuance of this section.

(7)If the court has already sentenced the defendant for the offence (or any of the offences) concerned, section 156 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

(8)Section 158(2) does not apply, and the rules applying instead are that the court must—

(a)take account of conduct occurring before the date of the original decision that the defendant had not benefited from his general or particular criminal conduct;

(b)take account of property obtained before that date;

(c)take account of property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

(9)In section 160—

(a)the first and second assumptions do not apply with regard to property first held by the defendant on or after the date of the original decision that the defendant had not benefited from his general or particular criminal conduct;

(b)the third assumption does not apply with regard to expenditure incurred by him on or after that date;

(c)the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

(10)The recoverable amount for the purposes of section 156 is such amount as—

(a)the court believes is just, but

(b)does not exceed the amount found under section 157.

(11)In arriving at the just amount the court must have regard in particular to—

(a)the amount found under section 157;

(b)any fine imposed on the defendant in respect of the offence (or any of the offences) concerned;

(c)any order which falls within section 163(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by the court in deciding what is the free property held by him for the purposes of section 159;

(d)any order which has been made against him in respect of the offence (or any of the offences) concerned under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (compensation orders).

(12)If an order for the payment of compensation under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 has been made against the defendant in respect of the offence or offences concerned, section 163(5) and (6) above do not apply.

(13)The date of conviction is the date found by applying section 169(10).

171 Order made: reconsideration of benefitN.I.

(1)This section applies if—

(a)a court has made a confiscation order,

(b)there is evidence which was not available to the prosecutor or the Director at the relevant time,

(c)the prosecutor or the Director believes that if the court were to find the amount of the defendant’s benefit in pursuance of this section it would exceed the relevant amount,

(d)before the end of the period of six years starting with the date of conviction the prosecutor or the Director applies to the Crown Court to consider the evidence, and

(e)after considering the evidence the court believes it is appropriate for it to proceed under this section.

(2)The court must make a new calculation of the defendant’s benefit from the conduct concerned, and when it does so subsections (3) to (6) below apply.

(3)If a court has already sentenced the defendant for the offence (or any of the offences) concerned section 156 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

(4)Section 158(2) does not apply, and the rules applying instead are that the court must—

(a)take account of conduct occurring up to the time it decided the defendant’s benefit for the purposes of the confiscation order;

(b)take account of property obtained up to that time;

(c)take account of property obtained after that time if it was obtained as a result of or in connection with conduct occurring before that time.

(5)In applying section 158(5) the confiscation order must be ignored.

(6)In section 160—

(a)the first and second assumptions do not apply with regard to property first held by the defendant after the time the court decided his benefit for the purposes of the confiscation order;

(b)the third assumption does not apply with regard to expenditure incurred by him after that time;

(c)the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him after that time.

(7)If the amount found under the new calculation of the defendant’s benefit exceeds the relevant amount the court—

(a)must make a new calculation of the recoverable amount for the purposes of section 156, and

(b)if it exceeds the amount required to be paid under the confiscation order, may vary the order by substituting for the amount required to be paid such amount as it believes is just.

(8)In applying subsection (7)(a) the court must—

(a)take the new calculation of the defendant’s benefit;

(b)apply section 159 as if references to the time the confiscation order is made were to the time of the new calculation of the recoverable amount and as if references to the date of the confiscation order were to the date of that new calculation.

(9)In applying subsection (7)(b) the court must have regard in particular to—

(a)any fine imposed on the defendant for the offence (or any of the offences) concerned;

(b)any order which falls within section 163(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by the court in deciding what is the free property held by him for the purposes of section 159;

(c)any order which has been made against him in respect of the offence (or any of the offences) concerned under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (compensation orders).

(10)But in applying subsection (7)(b) the court must not have regard to an order falling within subsection (9)(c) if a court has made a direction under section 163(6).

(11)In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.

(12)The relevant time is—

(a)when the court calculated the defendant’s benefit for the purposes of the confiscation order, if this section has not applied previously;

(b)when the court last calculated the defendant’s benefit in pursuance of this section, if this section has applied previously.

(13)The relevant amount is—

(a)the amount found as the defendant’s benefit for the purposes of the confiscation order, if this section has not applied previously;

(b)the amount last found as the defendant’s benefit in pursuance of this section, if this section has applied previously.

(14)The date of conviction is the date found by applying section 169(10).

172 Order made: reconsideration of available amountN.I.

(1)This section applies if—

(a)a court has made a confiscation order,

(b)the amount required to be paid was the amount found under section 157(2), and

(c)an applicant falling within subsection (2) applies to the Crown Court to make a new calculation of the available amount.

(2)These applicants fall within this subsection—

(a)the prosecutor;

(b)the Director;

(c)a receiver appointed under section 198 or 200.

(3)In a case where this section applies the court must make the new calculation, and in doing so it must apply section 159 as if references to the time the confiscation order is made were to the time of the new calculation and as if references to the date of the confiscation order were to the date of the new calculation.

(4)If the amount found under the new calculation exceeds the relevant amount the court may vary the order by substituting for the amount required to be paid such amount as—

(a)it believes is just, but

(b)does not exceed the amount found as the defendant’s benefit from the conduct concerned.

(5)In deciding what is just the court must have regard in particular to—

(a)any fine imposed on the defendant for the offence (or any of the offences) concerned;

(b)any order which falls within section 163(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by the court in deciding what is the free property held by him for the purposes of section 159;

(c)any order which has been made against him in respect of the offence (or any of the offences) concerned under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (compensation orders).

(6)But in deciding what is just the court must not have regard to an order falling within subsection (5)(c) if a court has made a direction under section 163(6).

(7)In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.

(8)The relevant amount is—

(a)the amount found as the available amount for the purposes of the confiscation order, if this section has not applied previously;

(b)the amount last found as the available amount in pursuance of this section, if this section has applied previously.

(9)The amount found as the defendant’s benefit from the conduct concerned is—

(a)the amount so found when the confiscation order was made, or

(b)if one or more new calculations of the defendant’s benefit have been made under section 171 the amount found on the occasion of the last such calculation.

173 Inadequacy of available amount: variation of orderN.I.

(1)This section applies if—

(a)a court has made a confiscation order, and

(b)the defendant, or a receiver appointed under section 198 or 200, applies to the Crown Court to vary the order under this section.

(2)In such a case the court must calculate the available amount, and in doing so it must apply section 159 as if references to the time the confiscation order is made were to the time of the calculation and as if references to the date of the confiscation order were to the date of the calculation.

(3)If the court finds that the available amount (as so calculated) is inadequate for the payment of any amount remaining to be paid under the confiscation order it may vary the order by substituting for the amount required to be paid such smaller amount as the court believes is just.

(4)If a person has been adjudged bankrupt or his estate has been sequestrated, or if an order for the winding up of a company has been made, the court must take into account the extent to which realisable property held by that person or that company may be distributed among creditors.

(5)The court may disregard any inadequacy which it believes is attributable (wholly or partly) to anything done by the defendant for the purpose of preserving property held by the recipient of a tainted gift from any risk of realisation under this Part.

(6)In subsection (4) “company” means any company which may be wound up under the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)) or the Insolvency Act 1986 (c. 45).

174 Inadequacy of available amount: discharge of orderN.I.

(1)This section applies if—

(a)a court has made a confiscation order,

(b)the prosecutor applies to the Crown Court for the discharge of the order, and

(c)the amount remaining to be paid under the order is less than £1,000.

(2)In such a case the court must calculate the available amount, and in doing so it must apply section 159 as if references to the time the confiscation order is made were to the time of the calculation and as if references to the date of the confiscation order were to the date of the calculation.

(3)If the court—

(a)finds that the available amount (as so calculated) is inadequate to meet the amount remaining to be paid, and

(b)is satisfied that the inadequacy is due wholly to a specified reason or a combination of specified reasons,

it may discharge the confiscation order.

(4)The specified reasons are—

(a)in a case where any of the realisable property consists of money in a currency other than sterling, that fluctuations in currency exchange rates have occurred;

(b)any reason specified by the Secretary of State by order.

(5)The Secretary of State may by order vary the amount for the time being specified in subsection (1)(c).

175 Small amount outstanding: discharge of orderN.I.

(1)This section applies if—

(a)a court has made a confiscation order,

(b)a chief clerk applies to the Crown Court for the discharge of the order, and

(c)the amount remaining to be paid under the order is £50 or less.

(2)In such a case the court may discharge the order.

(3)The Secretary of State may by order vary the amount for the time being specified in subsection (1)(c).

176 InformationN.I.

(1)This section applies if—

(a)the court proceeds under section 156 in pursuance of section 169 or 170, or

(b)the prosecutor or the Director applies under section 171.

(2)In such a case—

(a)the prosecutor or the Director (as the case may be) must give the court a statement of information within the period the court orders;

(b)section 166 applies accordingly (with appropriate modifications where the prosecutor or the Director applies under section 171);

(c)section 167 applies accordingly;

(d)section 168 applies as it applies in the circumstances mentioned in section 168(1).

Defendant abscondsN.I.

177 Defendant convicted or committedN.I.

(1)This section applies if the following two conditions are satisfied.

(2)The first condition is that a defendant absconds after—

(a)he is convicted of an offence or offences in proceedings before the Crown Court, or

(b)he is committed to the Crown Court in respect of an offence or offences under section 218 below (committal with a view to a confiscation order being considered).

(3)The second condition is that—

(a)the prosecutor or the Director applies to the Crown Court to proceed under this section, and

(b)the court believes it is appropriate for it to do so.

(4)If this section applies the court must proceed under section 156 in the same way as it must proceed if the two conditions there mentioned are satisfied; but this is subject to subsection (5).

(5)If the court proceeds under section 156 as applied by this section, this Part has effect with these modifications—

(a)any person the court believes is likely to be affected by an order under section 156 is entitled to appear before the court and make representations;

(b)the court must not make an order under section 156 unless the prosecutor or the Director (as the case may be) has taken reasonable steps to contact the defendant;

(c)section 156(9) applies as if the reference to subsection (2) were to subsection (2) of this section;

(d)sections 160, 166(4), 167 and 168 must be ignored;

(e)sections 169, 170 and 171 must be ignored while the defendant is still an absconder.

(6)Once the defendant has ceased to be an absconder section 169 has effect as if subsection (1)(a) read—

(a)at a time when the first condition in section 177 was satisfied the court did not proceed under section 156,.

(7)If the court does not believe it is appropriate for it to proceed under this section, once the defendant ceases to be an absconder section 169 has effect as if subsection (1)(b) read—

(b)there is evidence which was not available to the prosecutor or the Director on the relevant date,.

178 Defendant neither convicted nor acquittedN.I.

(1)This section applies if the following two conditions are satisfied.

(2)The first condition is that—

(a)proceedings for an offence or offences are started against a defendant but are not concluded,

(b)he absconds, and

(c)the period of two years (starting with the day the court believes he absconded) has ended.

(3)The second condition is that—

(a)the prosecutor or the Director applies to the Crown Court to proceed under this section, and

(b)the court believes it is appropriate for it to do so.

(4)If this section applies the court must proceed under section 156 in the same way as it must proceed if the two conditions there mentioned are satisfied; but this is subject to subsection (5).

(5)If the court proceeds under section 156 as applied by this section, this Part has effect with these modifications—

(a)any person the court believes is likely to be affected by an order under section 156 is entitled to appear before the court and make representations;

(b)the court must not make an order under section 156 unless the prosecutor or the Director (as the case may be) has taken reasonable steps to contact the defendant;

(c)section 156(9) applies as if the reference to subsection (2) were to subsection (2) of this section;

(d)sections 160, 166(4) and 167 to 170 must be ignored;

(e)section 171 must be ignored while the defendant is still an absconder.

(6)Once the defendant has ceased to be an absconder section 171 has effect as if references to the date of conviction were to—

(a)the day when proceedings for the offence concerned were started against the defendant, or

(b)if there are two or more offences and proceedings for them were started on different days, the earliest of those days.

(7)If—

(a)the court makes an order under section 156 as applied by this section, and

(b)the defendant is later convicted in proceedings before the Crown Court of the offence (or any of the offences) concerned,

section 156 does not apply so far as that conviction is concerned.

179 Variation of orderN.I.

(1)This section applies if—

(a)the court makes a confiscation order under section 156 as applied by section 178,

(b)the defendant ceases to be an absconder,

(c)he is convicted of an offence (or any of the offences) mentioned in section 178(2)(a),

(d)he believes that the amount required to be paid was too large (taking the circumstances prevailing when the amount was found for the purposes of the order), and

(e)before the end of the relevant period he applies to the Crown Court to consider the evidence on which his belief is based.

(2)If (after considering the evidence) the court concludes that the defendant’s belief is well founded—

(a)it must find the amount which should have been the amount required to be paid (taking the circumstances prevailing when the amount was found for the purposes of the order), and

(b)it may vary the order by substituting for the amount required to be paid such amount as it believes is just.

(3)The relevant period is the period of 28 days starting with—

(a)the date on which the defendant was convicted of the offence mentioned in section 178(2)(a), or

(b)if there are two or more offences and the the convictions were on different dates, the date of the latest.

(4)But in a case where section 178(2)(a) applies to more than one offence the court must not make an order under this section unless it is satisfied that there is no possibility of any further proceedings being taken or continued in relation to any such offence in respect of which the defendant has not been convicted.

180 Discharge of orderN.I.

(1)Subsection (2) applies if—

(a)the court makes a confiscation order under section 156 as applied by section 178,

(b)the defendant is later tried for the offence or offences concerned and acquitted on all counts, and

(c)he applies to the Crown Court to discharge the order.

(2)In such a case the court must discharge the order.

(3)Subsection (4) applies if—

(a)the court makes a confiscation order under section 156 as applied by section 178,

(b)the defendant ceases to be an absconder,

(c)subsection (1)(b) does not apply, and

(d)he applies to the Crown Court to discharge the order.

(4)In such a case the court may discharge the order if it finds that—

(a)there has been undue delay in continuing the proceedings mentioned in section 178(2), or

(b)the prosecutor does not intend to proceed with the prosecution.

(5)If the court discharges a confiscation order under this section it may make such a consequential or incidental order as it believes is appropriate.

AppealsN.I.

181 Appeal by prosecutor or DirectorN.I.

(1)If the Crown Court makes a confiscation order the prosecutor or the Director may appeal to the Court of Appeal in respect of the order.

(2)If the Crown Court decides not to make a confiscation order the prosecutor or the Director may appeal to the Court of Appeal against the decision.

(3)Subsections (1) and (2) do not apply to an order or decision made by virtue of section 169, 170, 177 or 178.

182 Court’s powers on appealN.I.

(1)On an appeal under section 181(1) the Court of Appeal may confirm, quash or vary the confiscation order.

(2)On an appeal under section 181(2) the Court of Appeal may confirm the decision, or if it believes the decision was wrong it may—

(a)itself proceed under section 156 (ignoring subsections (1) to (3)), or

(b)direct the Crown Court to proceed afresh under section 156.

(3)In proceeding afresh in pursuance of this section the Crown Court must comply with any directions the Court of Appeal may make.

(4)If a court makes or varies a confiscation order under this section or in pursuance of a direction under this section it must—

(a)have regard to any fine imposed on the defendant in respect of the offence (or any of the offences) concerned;

(b)have regard to any order which falls within section 163(3) and has been made against him in respect of the offence (or any of the offences) concerned, unless the order has already been taken into account by a court in deciding what is the free property held by the defendant for the purposes of section 159.

(5)If the Court of Appeal proceeds under section 156 or the Crown Court proceeds afresh under that section in pursuance of a direction under this section subsections (6) to (10) apply.

(6)If a court has already sentenced the defendant for the offence (or any of the offences) concerned, section 156 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

(7)If an order has been made against the defendant in respect of the offence (or any of the offences) concerned under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (compensation orders)—

(a)the court must have regard to it, and

(b)section 163(5) and (6) above do not apply.

(8)Section 158(2) does not apply, and the rules applying instead are that the court must—

(a)take account of conduct occurring before the relevant date;

(b)take account of property obtained before that date;

(c)take account of property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

(9)In section 160—

(a)the first and second assumptions do not apply with regard to property first held by the defendant on or after the relevant date;

(b)the third assumption does not apply with regard to expenditure incurred by him on or after that date;

(c)the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

(10)Section 176 applies as it applies in the circumstances mentioned in subsection (1) of that section.

(11)The relevant date is the date on which the Crown Court decided not to make a confiscation order.

183 Appeal to House of LordsN.I.

(1)An appeal lies to the House of Lords from a decision of the Court of Appeal on an appeal under section 181.

(2)An appeal under this section lies at the instance of—

(a)the defendant or the prosecutor (if the prosecutor appealed under section 181);

(b)the defendant or the Director (if the Director appealed under section 181).

(3)On an appeal from a decision of the Court of Appeal to confirm, vary or make a confiscation order the House of Lords may confirm, quash or vary the order.

(4)On an appeal from a decision of the Court of Appeal to confirm the decision of the Crown Court not to make a confiscation order or from a decision of the Court of Appeal to quash a confiscation order the House of Lords may—

(a)confirm the decision, or

(b)direct the Crown Court to proceed afresh under section 156 if it believes the decision was wrong.

(5)In proceeding afresh in pursuance of this section the Crown Court must comply with any directions the House of Lords may make.

(6)If a court varies a confiscation order under this section or makes a confiscation order in pursuance of a direction under this section it must—

(a)have regard to any fine imposed on the defendant in respect of the offence (or any of the offences) concerned;

(b)have regard to any order which falls within section 163(3) and has been made against him in respect of the offence (or any of the offences) concerned, unless the order has already been taken into account by a court in deciding what is the free property held by the defendant for the purposes of section 159.

(7)If the Crown Court proceeds afresh under section 156 in pursuance of a direction under this section subsections (8) to (12) apply.

(8)If a court has already sentenced the defendant for the offence (or any of the offences) concerned, section 156 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

(9)If an order has been made against the defendant in respect of the offence (or any of the offences) concerned under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (compensation orders)—

(a)the Crown Court must have regard to it, and

(b)section 163(5) and (6) above do not apply.

(10)Section 158(2) does not apply, and the rules applying instead are that the Crown Court must—

(a)take account of conduct occurring before the relevant date;

(b)take account of property obtained before that date;

(c)take account of property obtained on or after that date if it was obtained as a result of or in connection with conduct occurring before that date.

(11)In section 160—

(a)the first and second assumptions do not apply with regard to property first held by the defendant on or after the relevant date;

(b)the third assumption does not apply with regard to expenditure incurred by him on or after that date;

(c)the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him on or after that date.

(12)Section 176 applies as it applies in the circumstances mentioned in subsection (1) of that section.

(13)The relevant date is—

(a)in a case where the Crown Court made a confiscation order which was quashed by the Court of Appeal, the date on which the Crown Court made the order;

(b)in any other case, the date on which the Crown Court decided not to make a confiscation order.

Enforcement authorityN.I.

184 Enforcement authorityN.I.

(1)Subsection (2) applies if a court makes a confiscation order and any of the following paragraphs applies—

(a)the court proceeded under section 156 after being asked to do so by the Director;

(b)the court proceeded under section 156 by virtue of an application by the Director under section 169, 170, 177 or 178;

(c)the court proceeded under section 156 as a result of an appeal by the Director under section 181(2) or 183;

(d)before the court made the order the Director applied to the court to appoint him as the enforcement authority for the order.

(2)In any such case the court must appoint the Director as the enforcement authority for the order.

Enforcement as fines etcN.I.

185 Enforcement as fines etcN.I.

(1)This section applies if a court makes a confiscation order.

(2)Section 35(1)(c), (2), (4) and (5) of the Criminal Justice Act (Northern Ireland) 1945 (c. 15) (functions of court as to fines) apply as if the amount ordered to be paid were a fine imposed on the defendant by the Crown Court.

(3)An amount payable under a confiscation order is not a fine, costs, damages or compensation for the purposes of Article 35 of the Criminal Justice (Northern Ireland) Order 1998 (S.I. 1998/1504 (N.I. 9)) (parent or guardian to pay fine etc. instead of child).

186 Director’s application for enforcementN.I.

(1)If the Director believes that the conditions set out in subsection (2) are satisfied he may make an ex parte application to the Crown Court for the issue of a summons against the defendant.

(2)The conditions are that—

(a)a confiscation order has been made;

(b)the Director has been appointed as the enforcement authority for the order;

(c)the order is not satisfied;

(d)the order is not subject to appeal;

(e)the Director has done all that is practicable (apart from this section) to enforce the order.

(3)If it appears to the Crown Court that the conditions are satisfied it may issue a summons ordering the defendant to appear before the court at the time and place specified in the summons.

(4)If the defendant fails to appear before the Crown Court in pursuance of the summons the court may issue a warrant for his arrest.

(5)If—

(a)the defendant appears before the Crown Court in pursuance of the summons or of a warrant issued under subsection (4), and

(b)the court is satisfied that the conditions set out in subsection (2) are satisfied,

it may issue a warrant committing the defendant to prison or to detention under section 5 of the Treatment of Offenders Act (Northern Ireland) 1968 (c. 29 (N.I.)) for default in payment of the amount ordered to be paid by the confiscation order.

(6)Subsection (7) applies if the amount remaining to be paid under the confiscation order when the warrant under subsection (5) is issued is less than the amount ordered to be paid.

(7)In such a case the court must substitute for the term of imprisonment or detention fixed in respect of the order under section 35(1) of the Criminal Justice Act (Northern Ireland) 1945 (c. 15 (N.I.)) such term as bears to the original term the same proportion as the amount remaining to be paid bears to the amount ordered to be paid.

187 Provisions about imprisonment or detentionN.I.

(1)Subsection (2) applies if—

(a)a warrant committing the defendant to prison or detention is issued for a default in payment of an amount ordered to be paid under a confiscation order in respect of an offence or offences, and

(b)at the time the warrant is issued the defendant is liable to serve a term of custody in respect of the offence (or any of the offences).

(2)In such a case the term of imprisonment or of detention to be served in default of payment of the amount does not begin to run until after the term mentioned in subsection (1)(b) above.

(3)The reference in subsection (1)(b) to the term of custody the defendant is liable to serve in respect of the offence (or any of the offences) is a reference to the term of imprisonment, or detention under section 5 of the Treatment of Offenders Act (Northern Ireland) 1968 (c. 29 (N.I.)), which he is liable to serve in respect of the offence (or any of the offences).

(4)For the purposes of subsection (3) consecutive terms and terms which are wholly or partly concurrent must be treated as a single term and the following must be ignored—

(a)any sentence of imprisonment or order for detention suspended under section 18 of the Treatment of Offenders Act (Northern Ireland) 1968 which has not taken effect at the time the warrant is issued;

(b)any term of imprisonment or detention fixed under section 35(1)(c) of the Criminal Justice Act (Northern Ireland) 1945 (c. 15 (N.I.)) (term to be served in default of payment of fine etc) for which a warrant committing the defendant to prison or detention has not been issued at that time.

(5)If 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.

188 Reconsideration etc: variation of prison termN.I.

(1)Subsection (2) applies if—

(a)a court varies a confiscation order under section 171, 172, 173, 179, 182 or 183,

(b)the effect of the variation is to vary the maximum period applicable in relation to the order under section 35(2) of the Criminal Justice Act (Northern Ireland) 1945 (c. 15 (N.I.)), and

(c)the result is that that maximum period is less than the term of imprisonment or detention fixed in respect of the order under section 35(1)(c) of that Act.

(2)In such a case the court must fix a reduced term of imprisonment or detention in respect of the confiscation order under section 35(1)(c) of that Act in place of the term previously fixed.

(3)Subsection (4) applies if paragraphs (a) and (b) of subsection (1) apply but paragraph (c) does not.

(4)In such a case the court may amend the term of imprisonment or detention fixed in respect of the confiscation order under section 35(1)(c) of that Act.

(5)If the effect of section 162 is to increase the maximum period applicable in relation to a confiscation order under section 35(2) of that Act, on the application of the appropriate person the Crown Court may amend the term of imprisonment or detention fixed in respect of the order under section 35(1)(c) of that Act.

(6)The appropriate person is—

(a)the Director, if he was appointed as the enforcement authority for the order under section 184;

(b)the prosecutor, in any other case.

Restraint ordersN.I.

189 Conditions for exercise of powersN.I.

(1)The High Court may exercise the powers conferred by section 190 if any of the following conditions is satisfied.

(2)The first condition is that—

(a)a criminal investigation has been started in Northern Ireland with regard to an offence, and

(b)there is reasonable cause to believe that the alleged offender has benefited from his criminal conduct.

(3)The second condition is that—

(a)proceedings for an offence have been started in Northern Ireland and not concluded,

(b)there is reasonable cause to believe that the defendant has benefited from his criminal conduct.

(4)The third condition is that—

(a)an application by the prosecutor or the Director has been made under section 169, 170, 177 or 178 and not concluded, or the court believes that such an application is to be made, and

(b)there is reasonable cause to believe that the defendant has benefited from his criminal conduct.

(5)The fourth condition is that—

(a)an application by the prosecutor or the Director has been made under section 171 and not concluded, or the court believes that such an application is to be made, and

(b)there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the defendant’s benefit exceeds the relevant amount (as defined in that section).

(6)The fifth condition is that—

(a)an application by the prosecutor or the Director has been made under section 172 and not concluded, or the court believes that such an application is to be made, and

(b)there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the available amount exceeds the relevant amount (as defined in that section).

(7)The second condition is not satisfied if the court believes that—

(a)there has been undue delay in continuing the proceedings, or

(b)the prosecutor does not intend to proceed.

(8)If an application mentioned in the third, fourth or fifth condition has been made the condition is not satisfied if the court believes that—

(a)there has been undue delay in continuing the application, or

(b)the prosecutor or the Director (as the case may be) does not intend to proceed.

(9)If the first condition is satisfied—

(a)references in this Part to the defendant are to the alleged offender;

(b)references in this Part to the prosecutor are to the person the court believes is to have conduct of any proceedings for the offence;

(c)section 225(9) has effect as if proceedings for the offence had been started against the defendant when the investigation was started.

190 Restraint ordersN.I.

(1)If any condition set out in section 189 is satisfied the High Court may make an order (a restraint order) prohibiting any specified person from dealing with any realisable property held by him.

(2)A restraint order may provide that it applies—

(a)to all realisable property held by the specified person whether or not the property is described in the order;

(b)to realisable property transferred to the specified person after the order is made.

(3)A restraint order may be made subject to exceptions, and an exception may in particular—

(a)make provision for reasonable living expenses and reasonable legal expenses;

(b)make provision for the purpose of enabling any person to carry on any trade, business, profession or occupation;

(c)be made subject to conditions.

(4)But an exception to a restraint order may not make provision for any legal expenses which—

(a)relate to an offence which falls within subsection (5), and

(b)are incurred by the defendant or by a recipient of a tainted gift.

(5)These offences fall within this subsection—

(a)the offence mentioned in section 189(2) or (3), if the first or second condition (as the case may be) is satisfied;

(b)the offence (or any of the offences) concerned, if the third, fourth or fifth condition is satisfied.

(6)Subsection (7) applies if—

(a)the court makes a restraint order, and

(b)the applicant for the order applies to the court to proceed under subsection (7) (whether as part of the application for the restraint order or at any time afterwards).

(7)The court may make such order as it believes is appropriate for the purpose of ensuring that the restraint order is effective.

(8)A restraint order does not affect property for the time being subject to a charge under any of these provisions—

(a)section 9 of the Drug Trafficking Offences Act 1986 (c. 32);

(b)section 78 of the Criminal Justice Act 1988 (c. 33);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));

(d)section 27 of the Drug Trafficking Act 1994 (c. 37);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

(9)Dealing with property includes removing it from Northern Ireland.

191 Application, discharge and variationN.I.

(1)A restraint order—

(a)may be made only on an application by an applicant falling within subsection (2);

(b)may be made on an ex parte application to a judge in chambers.

(2)These applicants fall within this subsection—

(a)the prosecutor;

(b)the Director;

(c)an accredited financial investigator.

(3)An application to discharge or vary a restraint order or an order under section 190(7) may be made to the High Court by—

(a)the person who applied for the order;

(b)any person affected by the order.

(4)Subsections (5) to (7) apply to an application under subsection (3).

(5)The court—

(a)may discharge the order;

(b)may vary the order.

(6)If the condition in section 189 which was satisfied was that proceedings were started or an application was made, the court must discharge the order on the conclusion of the proceedings or of the application (as the case may be).

(7)If the condition in section 189 which was satisfied was that an investigation was started or an application was to be made, the court must discharge the order if within a reasonable time proceedings for the offence are not started or the application is not made (as the case may be).

192 Appeal to Court of AppealN.I.

(1)If on an application for a restraint order the court decides not to make one, the person who applied for the order may appeal to the Court of Appeal against the decision.

(2)If an application is made under section 191(3) in relation to a restraint order or an order under section 190(7) the following persons may appeal to the Court of Appeal in respect of the High Court’s decision on the application—

(a)the person who applied for the order;

(b)any person affected by the order.

(3)On an appeal under subsection (1) or (2) the Court of Appeal may—

(a)confirm the decision, or

(b)make such order as it believes is appropriate.

193 Appeal to House of LordsN.I.

(1)An appeal lies to the House of Lords from a decision of the Court of Appeal on an appeal under section 192.

(2)An appeal under this section lies at the instance of any person who was a party to the proceedings before the Court of Appeal.

(3)On an appeal under this section the House of Lords may—

(a)confirm the decision of the Court of Appeal, or

(b)make such order as it believes is appropriate.

194 SeizureN.I.

(1)If a restraint order is in force a constable or a customs officer may seize any realisable property to which it applies to prevent its removal from Northern Ireland.

(2)Property seized under subsection (1) must be dealt with in accordance with the directions of the court which made the order.

195 SupplementaryN.I.

(1)The person applying for a restraint order must be treated for the purposes of section 66 of the Land Registration Act (Northern Ireland) 1970 (c. 18 (N.I.)) (cautions) as a person interested in relation to any registered land to which—

(a)the application relates, or

(b)a restraint order made in pursuance of the application relates.

(2)Upon being served with a copy of a restraint order, the Registrar shall, in respect of any registered land to which a restraint order or an application for a restraint order relates, make an entry inhibiting any dealing with the land without the consent of the High Court.

(3)Subsections (2) and (4) of section 67 of the Land Registration Act (Northern Ireland) 1970 (inhibitions) shall apply to an entry made under subsection (2) as they apply to an entry made on the application of any person interested in the registered land under subsection (1) of that section.

(4)Where a restraint order has been protected by an entry registered under the Land Registration Act (Northern Ireland) 1970 or the Registration of Deeds Acts, an order discharging the restraint order may require that the entry be vacated.

(5)In this section—

  • Registrar” and “entry” have the same meanings as in the Land Registration Act (Northern Ireland) 1970; and

  • Registration of Deeds Acts” has the meaning given by section 46(2) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)).

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

Management receiversN.I.

196 AppointmentN.I.

(1)Subsection (2) applies if—

(a)the High Court makes a restraint order, and

(b)the applicant for the restraint order applies to the court to proceed under subsection (2) (whether as part of the application for the restraint order or at any time afterwards).

(2)The High Court may by order appoint a receiver in respect of any realisable property to which the restraint order applies.

197 PowersN.I.

(1)If the court appoints a receiver under section 196 it may act under this section on the application of the person who applied for the restraint order.

(2)The court may by order confer on the receiver the following powers in relation to any realisable property to which the restraint order applies—

(a)power to take possession of the property;

(b)power to manage or otherwise deal with the property;

(c)power to start, carry on or defend any legal proceedings in respect of the property;

(d)power to realise so much of the property as is necessary to meet the receiver’s remuneration and expenses.

(3)The court may by order confer on the receiver power to enter any premises in Northern Ireland and to do any of the following—

(a)search for or inspect anything authorised by the court;

(b)make or obtain a copy, photograph or other record of anything so authorised;

(c)remove anything which the receiver is required or authorised to take possession of in pursuance of an order of the court.

(4)The court may by order authorise the receiver to do any of the following for the purpose of the exercise of his functions—

(a)hold property;

(b)enter into contracts;

(c)sue and be sued;

(d)employ agents;

(e)execute powers of attorney, deeds or other instruments;

(f)take any other steps the court thinks appropriate.

(5)The court may order any person who has possession of realisable property to which the restraint order applies to give possession of it to the receiver.

(6)The court—

(a)may order a person holding an interest in realisable property to which the restraint order applies to make to the receiver such payment as the court specifies in respect of a beneficial interest held by the defendant or the recipient of a tainted gift;

(b)may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

(7)Subsections (2), (5) and (6) do not apply to property for the time being subject to a charge under any of these provisions—

(a)section 9 of the Drug Trafficking Offences Act 1986 (c. 32);

(b)section 78 of the Criminal Justice Act 1988 (c. 33);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));

(d)section 27 of the Drug Trafficking Act 1994 (c. 37);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

(8)The court must not—

(a)confer the power mentioned in subsection (2)(b) or (d) in respect of property, or

(b)exercise the power conferred on it by subsection (6) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

(9)The court may order that a power conferred by an order under this section is subject to such conditions and exceptions as it specifies.

(10)Managing or otherwise dealing with property includes—

(a)selling the property or any part of it or interest in it;

(b)carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

(c)incurring capital expenditure in respect of the property.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

Enforcement receiversN.I.

198 AppointmentN.I.

(1)This section applies if—

(a)a confiscation order is made,

(b)it is not satisfied, and

(c)it is not subject to appeal.

(2)On the application of the prosecutor the Crown Court may by order appoint a receiver in respect of realisable property.

199 PowersN.I.

(1)If the court appoints a receiver under section 198 it may act under this section on the application of the prosecutor.

(2)The court may by order confer on the receiver the following powers in relation to the realisable property—

(a)power to take possession of the property;

(b)power to manage or otherwise deal with the property;

(c)power to realise the property, in such manner as the court may specify;

(d)power to start, carry on or defend any legal proceedings in respect of the property.

(3)The court may by order confer on the receiver power to enter any premises in Northern Ireland and to do any of the following—

(a)search for or inspect anything authorised by the court;

(b)make or obtain a copy, photograph or other record of anything so authorised;

(c)remove anything which the receiver is required or authorised to take possession of in pursuance of an order of the court.

(4)The court may by order authorise the receiver to do any of the following for the purpose of the exercise of his functions—

(a)hold property;

(b)enter into contracts;

(c)sue and be sued;

(d)employ agents;

(e)execute powers of attorney, deeds or other instruments;

(f)take any other steps the court thinks appropriate.

(5)The court may order any person who has possession of realisable property to give possession of it to the receiver.

(6)The court—

(a)may order a person holding an interest in realisable property to make to the receiver such payment as the court specifies in respect of a beneficial interest held by the defendant or the recipient of a tainted gift;

(b)may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

(7)Subsections (2), (5) and (6) do not apply to property for the time being subject to a charge under any of these provisions—

(a)section 9 of the Drug Trafficking Offences Act 1986 (c. 32);

(b)section 78 of the Criminal Justice Act 1988 (c. 33);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));

(d)section 27 of the Drug Trafficking Act 1994 (c. 37);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

(8)The court must not—

(a)confer the power mentioned in subsection (2)(b) or (c) in respect of property, or

(b)exercise the power conferred on it by subsection (6) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

(9)The court may order that a power conferred by an order under this section is subject to such conditions and exceptions as it specifies.

(10)Managing or otherwise dealing with property includes—

(a)selling the property or any part of it or interest in it;

(b)carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

(c)incurring capital expenditure in respect of the property.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

Director’s receiversN.I.

200 AppointmentN.I.

(1)This section applies if—

(a)a confiscation order is made, and

(b)the Director is appointed as the enforcement authority for the order under section 184.

(2)But this section does not apply if—

(a)the confiscation order was made by the Court of Appeal, and

(b)when the Crown Court comes to proceed under this section the confiscation order has been satisfied.

(3)If this section applies the Crown Court must make an order for the appointment of a receiver in respect of realisable property.

(4)An order under subsection (3)—

(a)must confer power on the Director to nominate the person who is to be the receiver, and

(b)takes effect when the Director nominates that person.

(5)The Director must not nominate a person under subsection (4) unless at the time he does so the confiscation order—

(a)is not satisfied, and

(b)is not subject to appeal.

(6)A person nominated to be the receiver under subsection (4) may be—

(a)a member of the staff of the Agency;

(b)a person providing services under arrangements made by the Director.

(7)If this section applies section 198 does not apply.

201 PowersN.I.

(1)If the court makes an order for the appointment of a receiver under section 200 it may act under this section on the application of the Director.

(2)The court may by order confer on the receiver the following powers in relation to the realisable property—

(a)power to take possession of the property;

(b)power to manage or otherwise deal with the property;

(c)power to realise the property, in such manner as the court may specify;

(d)power to start, carry on or defend any legal proceedings in respect of the property.

(3)The court may by order confer on the receiver power to enter any premises in Northern Ireland and to do any of the following—

(a)search for or inspect anything authorised by the court;

(b)make or obtain a copy, photograph or other record of anything so authorised;

(c)remove anything which the receiver is required or authorised to take possession of in pursuance of an order of the court.

(4)The court may by order authorise the receiver to do any of the following for the purpose of the exercise of his functions—

(a)hold property;

(b)enter into contracts;

(c)sue and be sued;

(d)employ agents;

(e)execute powers of attorney, deeds or other instruments;

(f)take any other steps the court thinks appropriate.

(5)The court may order any person who has possession of realisable property to give possession of it to the receiver.

(6)The court—

(a)may order a person holding an interest in realisable property to make to the receiver such payment as the court specifies in respect of a beneficial interest held by the defendant or the recipient of a tainted gift;

(b)may (on the payment being made) by order transfer, grant or extinguish any interest in the property.

(7)Subsections (2), (5) and (6) do not apply to property for the time being subject to a charge under any of these provisions—

(a)section 9 of the Drug Trafficking Offences Act 1986 (c. 32);

(b)section 78 of the Criminal Justice Act 1988 (c. 33);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));

(d)section 27 of the Drug Trafficking Act 1994 (c. 37);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

(8)The court must not—

(a)confer the power mentioned in subsection (2)(b) or (c) in respect of property, or

(b)exercise the power conferred on it by subsection (6) in respect of property,

unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.

(9)The court may order that a power conferred by an order under this section is subject to such conditions and exceptions as it specifies.

(10)Managing or otherwise dealing with property includes—

(a)selling the property or any part of it or interest in it;

(b)carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;

(c)incurring capital expenditure in respect of the property.

Annotations: Help about Annotation
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

Application of sumsN.I.

202 Enforcement receiversN.I.

(1)This section applies to sums which are in the hands of a receiver appointed under section 198 if they are—

(a)the proceeds of the realisation of property under section 199;

(b)sums (other than those mentioned in paragraph (a)) in which the defendant holds an interest.

(2)The sums must be applied as follows—

(a)first, they must be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under this subsection by virtue of section 432;

(b)second, they must be applied in making any payments directed by the Crown Court;

(c)third, they must be applied on the defendant’s behalf towards satisfaction of the confiscation order.

(3)If the amount payable under the confiscation order has been fully paid and any sums remain in the receiver’s hands he must distribute them—

(a)among such persons who held (or hold) interests in the property concerned as the Crown Court directs, and

(b)in such proportions as it directs.

(4)Before making a direction under subsection (3) the court must give persons who held (or hold) interests in the property concerned a reasonable opportunity to make representations to it.

(5)For the purposes of subsections (3) and (4) the property concerned is—

(a)the property represented by the proceeds mentioned in subsection (1)(a);

(b)the sums mentioned in subsection (1)(b).

(6)The receiver applies sums as mentioned in subsection (2)(c) by paying them to the appropriate chief clerk on account of the amount payable under the order.

(7)The appropriate chief clerk is the chief clerk of the court at the place where the confiscation order was made.

203 Sums received by chief clerkN.I.

(1)This section applies if a chief clerk receives sums on account of the amount payable under a confiscation order (whether the sums are received under section 202 or otherwise).

(2)The chief clerk’s receipt of the sums reduces the amount payable under the order, but he must apply the sums received as follows.

(3)First he must apply them in payment of such expenses incurred by a person acting as an insolvency practitioner as—

(a)are payable under this subsection by virtue of section 432, but

(b)are not already paid under section 202(2)(a).

(4)If the chief clerk received the sums under section 202 he must next apply them—

(a)first, in payment of the remuneration and expenses of a receiver appointed under section 196, to the extent that they have not been met by virtue of the exercise by that receiver of a power conferred under section 197(2)(d);

(b)second, in payment of the remuneration and expenses of the receiver appointed under section 198.

(5)If a direction was made under section 163(6) for an amount of compensation to be paid out of sums recovered under the confiscation order, the chief clerk must next apply the sums in payment of that amount.

(6)If any amount remains after the chief clerk makes any payments required by the preceding provisions of this section, the amount must be treated for the purposes of section 20 of the Administration of Justice Act (Northern Ireland) 1954 (c. 9 (N.I.)) (application of fines) as if it were a fine.

(7)Subsection (4) does not apply if the receiver is a member of the staff of the Director of Public Prosecutions for Northern Ireland or of the Commissioners of Customs and Excise; and it is immaterial whether he is a permanent or temporary member or he is on secondment from elsewhere.

204 Director’s receiversN.I.

(1)This section applies to sums which are in the hands of a receiver appointed under section 200 if they are—

(a)the proceeds of the realisation of property under section 201;

(b)sums (other than those mentioned in paragraph (a)) in which the defendant holds an interest.

(2)The sums must be applied as follows—

(a)first, they must be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under this subsection by virtue of section 432;

(b)second, they must be applied in making any payments directed by the Crown Court;

(c)third, they must be applied on the defendant’s behalf towards satisfaction of the confiscation order by being paid to the Director on account of the amount payable under it.

(3)If the amount payable under the confiscation order has been fully paid and any sums remain in the receiver’s hands he must distribute them—

(a)among such persons who held (or hold) interests in the property concerned as the Crown Court directs, and

(b)in such proportions as it directs.

(4)Before making a direction under subsection (3) the court must give persons who held (or hold) interests in the property concerned a reasonable opportunity to make representations to it.

(5)For the purposes of subsections (3) and (4) the property concerned is—

(a)the property represented by the proceeds mentioned in subsection (1)(a);

(b)the sums mentioned in subsection (1)(b).

205 Sums received by DirectorN.I.

(1)This section applies if the Director receives sums on account of the amount payable under a confiscation order (whether the sums are received under section 204 or otherwise).

(2)The Director’s receipt of the sums reduces the amount payable under the order, but he must apply the sums received as follows.

(3)First he must apply them in payment of such expenses incurred by a person acting as an insolvency practitioner as—

(a)are payable under this subsection by virtue of section 432, but

(b)are not already paid under section 204(2)(a).

(4)If the Director received the sums under section 204 he must next apply them—

(a)first, in payment of the remuneration and expenses of a receiver appointed under section 196, to the extent that they have not been met by virtue of the exercise by that receiver of a power conferred under section 197(2)(d);

(b)second, in payment of the remuneration and expenses of the receiver appointed under section 200.

(5)If a direction was made under section 163(6) for an amount of compensation to be paid out of sums recovered under the confiscation order, the Director must next apply the sums in payment of that amount.

(6)Subsection (4) does not apply if the receiver is a member of the staff of the Agency or a person providing services under arrangements made by the Director.

RestrictionsN.I.

206 Restraint ordersN.I.

(1)Subsections (2) and (3) apply if a court makes a restraint order.

(2)If the order applies to a tenancy of any premises, no landlord or other person to whom rent is payable may exercise a right within subsection (3) except with the leave of the High Court and subject to any terms the High Court may impose.

(3)A right is within this subsection if it is a right of forfeiture by peaceable re-entry in relation to the premises in respect of any failure by the tenant to comply with any term or condition of the tenancy.

(4)If a court in which proceedings are pending in respect of any property is satisfied that a restraint order has been applied for or made in respect of the property, the court may either stay the proceedings or allow them to continue on any terms it thinks fit.

(5)Before exercising any power conferred by subsection (4), the court must give an opportunity to be heard to—

(a)the applicant for the restraint order, and

(b)any receiver appointed in respect of the property under section 196, 198 or 200.

207 Enforcement receiversN.I.

(1)Subsections (2) and (3) apply if a court makes an order under section 198 appointing a receiver in respect of any realisable property.

(2)If the receiver is appointed in respect of a tenancy of any premises, no landlord or other person to whom rent is payable may exercise a right within subsection (3) except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

(3)A right is within this subsection if it is a right of forfeiture by peaceable re-entry in relation to the premises in respect of any failure by the tenant to comply with any term or condition of the tenancy.

(4)If a court in which proceedings are pending in respect of any property is satisfied that an order under section 198 appointing a receiver in respect of the property has been applied for or made, the court may either stay the proceedings or allow them to continue on any terms it thinks fit.

(5)Before exercising any power conferred by subsection (4), the court must give an opportunity to be heard to—

(a)the prosecutor, and

(b)the receiver (if the order under section 198 has been made).

208 Director’s receiversN.I.

(1)Subsections (2) and (3) apply if—

(a)the Crown Court has made an order under section 200 for the appointment of a receiver in respect of any realisable property, and

(b)the order has taken effect.

(2)If the order is for the appointment of a receiver in respect of a tenancy of any premises, no landlord or other person to whom rent is payable may exercise a right within subsection (3) except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

(3)A right is within this subsection if it is a right of forfeiture by peaceable re-entry in relation to the premises in respect of any failure by the tenant to comply with any term or condition of the tenancy.

(4)If a court (whether the Crown Court or any other court) in which proceedings are pending in respect of any property is satisfied that an order under section 200 for the appointment of a receiver in respect of the property has taken effect, the court may either stay the proceedings or allow them to continue on any terms it thinks fit.

(5)Before exercising any power conferred by subsection (4), the court must give an opportunity to be heard to—

(a)the Director, and

(b)the receiver.

Receivers: further provisionsN.I.

209 ProtectionN.I.

If a receiver appointed under section 196, 198 or 200—

(a)takes action in relation to property which is not realisable property,

(b)would be entitled to take the action if it were realisable property, and

(c)believes on reasonable grounds that he is entitled to take the action,

he is not liable to any person in respect of any loss or damage resulting from the action, except so far as the loss or damage is caused by his negligence.

210 Further applicationsN.I.

(1)This section applies to a receiver appointed under section 196, 198 or 200.

(2)The receiver may apply—

(a)to the High Court if he is appointed under section 196;

(b)to the Crown Court if he is appointed under section 198 or 200,

for an order giving directions as to the exercise of his powers.

(3)The following persons may apply to the High Court if the receiver is appointed under section 196 or to the Crown Court if the receiver is appointed under section 198 or 200—

(a)any person affected by action taken by the receiver;

(b)any person who may be affected by action the receiver proposes to take.

(4)On an application under this section the court may make such order as it believes is appropriate.

211 Discharge and variationN.I.

(1)The following persons may apply to the High Court to vary or discharge an order made under section 196 or 197 or to the Crown Court to vary or discharge an order made under any of sections 198 to 201—

(a)the receiver;

(b)the person who applied for the order or (if the order was made under section 200 or 201) the Director;

(c)any person affected by the order.

(2)On an application under this section the court—