C2C1C3Part 2Confiscation: England and Wales
Pt. 2 applied by Police and Criminal Evidence Act 1984 (c. 60), ss. 56(5B), 58(8B) (as substituted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), s. 458(1), Sch. 11 para. 14(2)(3); S.I. 2003/333, art. 2, Sch.)
Pt. 2: power to amend conferred (1.7.2005) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 97(3), 178(8); S.I. 2005/1521, art. 3(1)(a)
Appeals
I1C2C131C2C1 Appeal by prosecutor F1...
1
If the Crown Court makes a confiscation order the prosecutor F2... 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 F3... 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.
I2C2C132C2C1 Court’s powers on appeal
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) F9or section 4 of the Prevention of Social Housing Fraud Act 2013 (unlawful profit 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.
I3C2C133C2C1 Appeal to F8Supreme Court
1
An appeal lies to the F6Supreme Court 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 F4...;
F5b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
On an appeal from a decision of the Court of Appeal to confirm, vary or make a confiscation order the F7Supreme Court 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 F7Supreme Court 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 F7Supreme Court 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) F10or section 4 of the Prevention of Social Housing Fraud Act 2013 (unlawful profit 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.
Pt. 2 applied by Terrorism Act 2000 (c. 11), Sch. 8 paras. 8(5A), 34(3A) (as substituted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), s. 458(1), Sch. 11 para. 39(2)(5); S.S.I. 2003/210, art. 2(1)(b)(2), sch. (with art. 7); S.I. 2003/333, art. 2, Sch.)