Part 2E+WConfiscation: England and Wales

Modifications etc. (not altering text)

C2Pt. 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.)

C6Pt. 2: power to modify conferred (20.3.2015) by Crime and Courts Act 2013 (c. 22), ss. 47, 61(2); S.I. 2015/813, art. 2(b)

C8Pt. 2 applied (12.2.2019 for specified purposes, 13.8.2020 in so far as not already in force) by Counter-Terrorism and Border Security Act 2019 (c. 3), s. 27(1)(g), Sch. 3 para. 33(5) (with s. 25(9)); S.I. 2020/792, reg. 2(g)

Defendant abscondsE+W

27 Defendant convicted or committedE+W

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

[F1(2)The first condition is that a defendant falls within any of the following paragraphs—

(a)he absconds and, either before or after doing so, he is convicted of an offence or offences in proceedings before the Crown Court;

(b)he absconds after being committed to the Crown Court for sentence in respect of an offence or offences under [F2any provision of sections 14 to 20 of the Sentencing Code];

(c)he absconds after being 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 F3... 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 F4... 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.

[F5(6)Once the defendant ceases to be an absconder—

(a)section 19 has effect as if subsection (1) read—

“(1)This section applies if—

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

(b)before the end of the period of six years starting with the day when the defendant ceased to be an absconder, the prosecutor applies to the Crown Court to proceed under section 6, and

(c)the court believes it is appropriate for it to do so.”;

(b)section 20 has effect as if subsection (4) read—

“(4)The second condition is that—

(a)before the end of the period of six years starting with the day when the defendant ceased to be an absconder, the prosecutor applies to the Crown Court to reconsider whether the defendant has benefited from his general or particular criminal conduct (as the case may be), and

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

(c)section 21 has effect as if subsection (1) read—

“(1)This section applies if—

(a)a court has made a confiscation order,

(b)the prosecutor 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,

(c)before the end of the period of six years starting with the day when the defendant ceased to be an absconder, the prosecutor applies to the Crown Court to proceed under this section, and

(d)the court believes it is appropriate for it to do so.”;

(d)the modifications set out in subsection (5)(a) to (d) of this section do not apply to proceedings that take place by virtue of section 19, 20 or 21 (as applied by this subsection).]

Textual Amendments

F5S. 27(6) substituted for s. 27(6)(7) (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 9(2), 88(1); S.I. 2015/820, reg. 3(f)

Commencement Information

I1S. 27 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch. (with arts. 3(2), 10-13)

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 [F6three months] (starting with the day the court believes he absconded) has ended.

(3)The second condition is that—

(a)the prosecutor F7... 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 F8... 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.

[F9(6)Once the defendant has ceased to be an absconder—

(a)section 21 has effect as if subsection (1) read—

“(1)This section applies if—

(a)a court has made a confiscation order,

(b)the prosecutor 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,

(c)before the end of the period of six years starting with the day when the defendant ceased to be an absconder, the prosecutor applies to the Crown Court to proceed under this section, and

(d)the court believes it is appropriate for it to do so.”;

(b)the modifications set out in subsection (5)(a) to (d) of this section do not apply to proceedings that take place by virtue of section 21 (as applied by this subsection).]

(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.

Textual Amendments

F6Words in s. 28(2)(c) substituted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 9(3), 88(1); S.I. 2015/820, reg. 3(f)

Commencement Information

I2S. 28 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch. (with arts. 3(2), 10-13)

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.

Commencement Information

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.

Commencement Information