The Criminal Procedure (Amendment) Rules 2015

Amendments to the Criminal Procedure Rules 2014

11.  In Part 58 (Proceeds of Crime Act 2002: rules applicable only to confiscation proceedings)—

(a) for rule 58.1 (Statements in connection with confiscation orders) substitute—

“58.1.— (1) This rule applies where—

(a) the court can make a confiscation order; and

(b) the prosecutor asks the court to make such an order, or the court decides to make such an order on its own initiative.

(2) Within such periods as the court directs—

(a) if the court so orders, the defendant must give such information, in such manner, as the court directs;

(b) the prosecutor must serve a statement of information relevant to confiscation on the court officer and the defendant;

(c) if the court so directs—

(i) the defendant must serve a response notice on the court officer and the prosecutor, and

(ii) the parties must identify what is in dispute.

(3) The court may—

(a) shorten or extend a time limit which it has set;

(b) vary, discharge or supplement an order which it has made.

(4) A prosecutor’s statement of information must—

(a) identify the maker of the statement and show its date;

(b) identify the defendant in respect of whom it is served;

(c) specify the conviction which gives the court power to make the confiscation order, or each conviction if more than one;

(d) if the prosecutor believes the defendant to have a criminal lifestyle, include such matters as the prosecutor believes to be relevant in connection with deciding—

(i) whether the defendant has such a lifestyle,

(ii) whether the defendant has benefited from his or her general criminal conduct,

(iii) the defendant’s benefit from that conduct, and

(iv) whether the court should or should not make such assumptions about the defendant’s property as legislation permits;

(e) if the prosecutor does not believe the defendant to have a criminal lifestyle, include such matters as the prosecutor believes to be relevant in connection with deciding—

(i) whether the defendant has benefited from his or her particular criminal conduct, and

(ii) the defendant’s benefit from that conduct.

(5) A defendant’s response notice must—

(a) indicate the extent to which the defendant accepts the allegations made in the prosecutor’s statement of information; and

(b) so far as the defendant does not accept an allegation, give particulars of any matters on which the defendant relies,

in any manner directed by the court.

(6) The court must satisfy itself that there has been explained to the defendant, in terms the defendant can understand (with help, if necessary)—

(a) that if the defendant accepts to any extent an allegation in a prosecutor’s statement of information, then the court may treat that as conclusive for the purposes of deciding whether the defendant has benefited from general or particular criminal conduct, and if so by how much;

(b) that if the defendant fails in any respect to comply with a direction to serve a response notice, then the court may treat that as acceptance of each allegation to which the defendant has not replied, except the allegation that the defendant has benefited from general or particular criminal conduct; and

(c) that if the defendant fails without reasonable excuse to comply with an order to give information, then the court may draw such inference as it believes is appropriate.

[Note. Under section 6 of the Proceeds of Crime Act 2002(1), where a defendant is convicted of an offence the Crown Court must (with some exceptions)—

(a) decide whether the defendant has ‘a criminal lifestyle’, within the meaning of the Act, or has benefited from particular criminal conduct;

(b) decide the ‘recoverable amount’, within the meaning of the Act; and

(c) make a confiscation order requiring the defendant to pay that amount.

Under section 16 of the 2002 Act(2), where the Crown Court is considering confiscation the prosecutor must give the court a statement of information which the prosecutor believes to be relevant to what the court must decide, within such period as the court directs. Under section 17 of the Act(3), where the prosecutor gives such a statement the court may order the defendant to respond and, if the defendant does not do so, then the court may treat the defendant as accepting the prosecutor’s allegations. Under section 18(4), 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 and, if the defendant does not do so, then the court may draw such inference as it believes appropriate.

Under section 27 of the 2002 Act(5), special provisions apply where the defendant absconds.

Under section 97 of the Serious Organised Crime and Police Act 2005(6), the Secretary of State may by order provide for confiscation orders to be made by magistrates’ courts.]”;

(b) for rule 58.2 (Postponement of confiscation proceedings) substitute—

“58.2.   The court may postpone confiscation proceedings without a hearing.

[Note. See section 14 of the Proceeds of Crime Act 2002(7).]”;

(c) in rule 58.3 (Application for reconsideration)—

(i) for paragraph (1) substitute—

“(1) This rule applies where the prosecutor wants the court, in view of fresh evidence—

(a) to consider making a confiscation order where the defendant was convicted but no such order was considered;

(b) to reconsider a decision that the defendant had not benefited from criminal conduct;

(c) to reconsider a decision about the amount of the defendant’s benefit.”,

(ii) in paragraph (3), for ‘lodged with the Crown Court’ substitute ‘served on the court officer’, and

(iii) at the end of the rule insert—

“[Note. See sections 19, 20 and 21 of the Proceeds of Crime Act 2002(8).]”;

(d) in rule 58.4 (Application for new calculation of available amount)—

(i) for paragraph (1) substitute—

“(1) This rule applies where the prosecutor or a receiver wants the court to make a new calculation of the amount available for confiscation.”,

(ii) in paragraph (3), for ‘lodged with the Crown Court’ substitute ‘served on the court officer’,

(iii) in paragraph (4)(b), omit ‘under section 50 of the 2002 Act’,

(iv) in paragraph (4), for ‘Crown Court’ substitute ‘court’, and

(v) at the end of the rule insert—

“[Note. See section 22 of the Proceeds of Crime Act 2002(9).]”;

(e) in rule 58.5 (Variation of confiscation order due to inadequacy of available amount)—

(i) for paragraph (1) substitute—

“(1) This rule applies where the defendant or a receiver wants the court to vary a confiscation order because the amount available is inadequate.”,

(ii) in paragraph (3), for ‘lodged with the Crown Court’ substitute ‘served on the court officer’,

(iii) in paragraph (4)(c), omit ‘under section 50 of the 2002 Act’,

(iv) in paragraph (4), for ‘Crown Court’ substitute ‘court’, and

(v) at the end of the rule insert—

“[Note. See section 23 of the Proceeds of Crime Act 2002(10).]”;

(f) in rule 58.6 (Application by magistrates’ court officer to discharge confiscation order)—

(i) for paragraph (1) substitute—

“(1) This rule applies where a magistrates’ court officer wants the court to discharge a confiscation order because the amount available is inadequate or the sum outstanding is very small.”,

(ii) in paragraph (3)(c), omit ‘appointed under section 50 of the 2002 Act’,

(iii) for paragraph (4) substitute—

“(4) The court may determine the application without a hearing unless a person listed in paragraph (3) indicates, within seven days after the application was served, that he or she would like to make representations.”,

(iv) in paragraph (5), for ‘Crown Court’ substitute ‘court’ and for ‘the court must’ substitute ‘the court officer must’,

(v) in paragraph (5)(d), omit ‘appointed under section 50 of the 2002 Act’, and

(vi) at the end of the rule insert—

“[Note. See sections 24 and 25 of the Proceeds of Crime Act 2002(11).]”;

(g) in rule 58.7 (Application for variation of confiscation order made against an absconder)—

(i) for paragraph (1) substitute—

“(1) This rule applies where the defendant wants the court to vary a confiscation order made while the defendant was an absconder.”,

(ii) in paragraph (2)(a) omit ‘made against an absconder under section 6 of the 2002 Act as applied by section 28 of the 2002 Act’,

(iii) in paragraph (2)(d), for ‘he’ substitute ‘the defendant’,

(iv) in paragraph (3), for ‘lodged with the Crown Court’ substitute ‘served on the court officer’,

(v) in paragraph (4), for ‘Crown Court’ substitute ‘court’, and

(vi) at the end of the rule insert—

“[Note. See section 29 of the Proceeds of Crime Act 2002(12).]”;

(h) in rule 58.8 (Application for discharge of confiscation order made against an absconder)—

(i) for paragraph (1) substitute—

“(1) This rule applies where the defendant wants the court to discharge a confiscation order made while the defendant was an absconder and—

(a) the defendant since has been tried and acquitted of each offence concerned; or

(b) the prosecution has not concluded or is not to proceed.”,

(ii) in paragraph (2)(a) omit ‘made under section 28 of the 2002 Act’,

(iii) in paragraph (2)(c), after ‘he’ insert ‘or she’,

(iv) for paragraph (2)(d)(iii) substitute—

“(iii) any indication that the prosecutor does not intend to proceed against the defendant.”,

(v) in paragraph (3), for ‘lodged with the Crown Court’ substitute ‘served on the court officer’,

(vi) in paragraph (4), for ‘Crown Court’ substitute ‘court’,

(vii) for paragraph (5) substitute—

“(5) If the court orders the discharge of the confiscation order, the court officer must serve notice on any other court responsible for enforcing the order.”, and

(viii) at the end of the rule insert—

“[Note. See section 30 of the Proceeds of Crime Act 2002(13).]”;

(i) in rule 58.9 (Application for increase in term of imprisonment in default)—

(i) for paragraph (1) substitute—

“(1) This rule applies where—

(a) a court varies a confiscation order; and

(b) the prosecutor wants the court in consequence to increase the term of imprisonment to be served in default of payment.”,

(ii) in paragraph (3), for ‘the court must’ substitute ‘the court officer must’,

(iii) in paragraph (3)(a), for ‘the magistrates’ court’ substitute ‘any other court’,

(iv) in paragraph (4), for ‘Crown Court’ substitute ‘court’ and for ‘the court must’ substitute ‘the court officer must’,

(v) in paragraph (4)(d), for ‘the magistrates’ court’ substitute ‘any other court’, and

(vi) at the end of the rule insert—

“[Note. See section 39(5) of the Proceeds of Crime Act 2002(14).]”;

(j) in rule 58.10 (Compensation – general)—

(i) for paragraph (1) substitute—

“(1) This rule applies where a person who held realisable property wants the court to award compensation for loss suffered in consequence of anything done in relation to that property in connection with confiscation proceedings.”,

(ii) in paragraph (3), for ‘lodged with the Crown Court’ substitute ‘served on the court officer’,

(iii) in paragraph (4)(b) omit ‘under section 72(9) or 302(7A)(15) of the 2002 Act (or if the compensation is payable out of a police fund under section 72(9)(a) or 302(7A), the chief officer of the police force concerned)’,

(iv) in paragraph (4), for ‘Crown Court’ substitute ‘court’, and

(v) at the end of the rule insert—

“[Note. See section 72 of the Proceeds of Crime Act 2002(16).]”;

(k) in rule 58.11 (Compensation – confiscation order made against absconder)—

(i) for paragraph (1) substitute—

“(1) This rule applies where—

(a) the court varies or discharges a confiscation order made against an absconder;

(b) a person who held realisable property suffered loss as a result of the making of that confiscation order; and

(c) that person wants the court to award compensation for that loss.”,

(ii) in paragraph (2)(a) omit ‘made under section 28 of the 2002 Act’,

(iii) in paragraph (2)(b) omit ‘under section 29 or 30 of the 2002 Act’,

(iv) in paragraph (3), for ‘lodged with the Crown Court’ substitute ‘served on the court officer’,

(v) in paragraph (4), for ‘Crown Court’ substitute ‘court’, and

(vi) at the end of the rule insert—

“[Note. See section 73 of the Proceeds of Crime Act 2002(17).]”;

(l) after rule 58.12 (Payment of money in bank or building society account in satisfaction of confiscation order) insert—

“Application to realise seized property

58.13.— (1) This rule applies where—

(a) property is held by a defendant against whom a confiscation order has been made;

(b) the property has been seized by or produced to an officer; and

(c) an officer who is entitled to apply wants a magistrates’ court—

(i) to make an order under section 67A of the Proceeds of Crime Act 2002(18) authorising the realisation of the property towards satisfaction of the confiscation order, or

(ii) to determine any storage, insurance or realisation costs in respect of the property which may be recovered under section 67B of the 2002 Act.

(2) Such an officer must—

(a) apply in writing; and

(b) serve the application on—

(i) the court officer, and

(ii) any person whom the applicant believes would be affected by an order.

(3) The application must—

(a) specify the property;

(b) explain—

(i) the applicant’s entitlement to apply,

(ii) how the proposed realisation meets the conditions prescribed by section 67A of the 2002 Act, and

(iii) how any storage, etc. costs have been calculated;

(c) attach any material on which the applicant relies; and

(d) propose the terms of the order.

(4) The court may—

(a) determine the application at a hearing, or without a hearing;

(b) consider an application made orally instead of in writing;

(c) consider an application which has not been served on a person likely to be affected by an order.

(5) If the court authorises the realisation of the property, the applicant must—

(a) notify any person affected by the order who was absent when it was made; and

(b) serve on the court officer a list of those so notified.

[Note. Under section 67A of the Proceeds of Crime Act 2002, one of the officers listed in section 41A of the Act may apply to a magistrates’ court for authority to realise property seized by such an officer if—

(a) a confiscation order has been made against the owner of the property;

(b) no receiver has been appointed in relation to that property; and

(c) any period allowed for payment of the confiscation order has expired.

Under section 67B of the 2002 Act, if a magistrates’ court makes an order under section 67A then on the same or a subsequent occasion the court may determine an amount which may be recovered by the applicant in respect of reasonable costs incurred in storing or insuring the property, or realising it.]

Appeal about decision on application to realise seized property

58.14.— (1) This rule applies where on an application under rule 58.13 for an order authorising the realisation of property—

(a) a magistrates’ court decides not to make such an order and an officer who is entitled to apply wants to appeal against that decision to the Crown Court, under section 67C(1) of the Proceeds of Crime Act 2002(19);

(b) a magistrates’ court makes such an order and a person who is affected by that decision, other than the defendant against whom the confiscation order was made, wants to appeal against it to the Crown Court, under section 67C(2) of the 2002 Act;

(c) a magistrates’ court makes a decision about storage, etc. costs and an officer who is entitled to apply wants to appeal against that decision to the Crown Court, under section 67C(4) of the 2002 Act.

(2) The appellant must serve an appeal notice—

(a) on the Crown Court officer and on any other party;

(b) not more than 21 days after the magistrates’ court’s decision, or, if applicable, service of notice under rule 58.13(5).

(3) The appeal notice must—

(a) specify the decision under appeal;

(b) where paragraph (1)(a) applies, explain why the property should be realised;

(c) in any other case, propose the order that the appellant wants the court to make, and explain why.

(4) Rule 63.10 (Constitution of the Crown Court) applies on such an appeal.

[Note. Under section 67C of the Proceeds of Crime Act 2002, an officer entitled to apply for an order under section 67A or 67B of that Act (authority to realise seized property towards satisfaction of a confiscation order; determination of storage, etc. costs) may appeal against a refusal to make an order, or against a costs determination; and a person affected by an order, other than the owner, may appeal against the order.]

Application for direction about surplus proceeds

58.15.— (1) This rule applies where—

(a) on an application under rule 58.13, a magistrates’ court has made an order authorising an officer to realise property;

(b) an officer so authorised holds proceeds of that realisation;

(c) the confiscation order has been fully paid; and

(d) the officer, or a person who had or has an interest in the property represented by the proceeds, wants a magistrates’ court or the Crown Court to determine under section 67D of the Proceeds of Crime Act 2002(20)—

(i) to whom the remaining proceeds should be paid, and

(ii) in what amount or amounts.

(2) Such a person must—

(a) apply in writing; and

(b) serve the application on—

(i) the court officer, and

(ii) as appropriate, the officer holding the proceeds, or any person to whom such proceeds might be paid.

(3) The application must—

(a) specify the property which was realised;

(b) explain the applicant’s entitlement to apply;

(c) describe the distribution proposed by the applicant and explain why that is proposed;

(d) attach any material on which the applicant relies; and

(e) ask for a hearing, if the applicant wants one, and explain why it is needed.

(4) A person who wants to make representations about the application must—

(a) serve the representations on—

(i) the court officer,

(ii) the applicant, and

(iii) any other person to whom proceeds might be paid;

(b) do so as soon as reasonably practicable after service of the application;

(c) attach any material on which that person relies; and

(d) ask for a hearing, if that person wants one, and explain why it is needed.

(5) The court—

(a) must not determine the application unless the applicant and each person on whom it was served—

(i) is present, or

(ii) has had an opportunity to attend or to make representations;

(b) subject to that, may determine the application—

(i) at a hearing (which must be in private unless the court otherwise directs), or without a hearing,

(ii) in the absence of any party to the application.

[Note. Under section 67D of the Proceeds of Crime Act 2002, a magistrates’ court or the Crown Court may determine to whom, and in what proportions, any surplus proceeds of realisation must be distributed. Once a magistrates’ court has made such a determination, the Crown Court may not do so, and vice versa.]”; and

(m) amend the table of contents correspondingly.

(1)

2002 c. 29; section 6 was amended by paragraph 75 of Schedule 3 to the Criminal Justice Act 2003 (c. 44), section 74(2) of, and paragraphs 1 and 2 of Schedule 8 to, the Serious Crime Act 2007 (c. 27) and section 10 of, and paragraphs 11 and 12 of the Schedule to, the Prevention of Social Housing Fraud Act 2013 (c. 3).

(2)

2002 c. 29; section 16 was amended by section 74(2) of, and paragraphs 1 and 5 of Schedule 8 to, the Serious Crime Act 2007 (c. 27).

(3)

2002 c. 29; section 17 was amended by section 74(2) of, and paragraphs 1 and 6 of Schedule 8 to, the Serious Crime Act 2007 (c. 27).

(4)

2002 c. 29; section 18 was amended by section 74(2) of, and paragraphs 1 and 7 of Schedule 8 to, the Serious Crime Act 2007 (c. 27).

(5)

2002 c. 29; section 27 was amended by paragraph 75 of Schedule 3 to the Criminal Justice Act 2003 (c. 44) and section 74 of, and paragraphs 1 and 14 of Schedule 8 to, the Serious Crime Act 2007 (c. 27).

(6)

2005 c. 15; section 97 was amended by S.I. 2010/976.

(7)

2002 c. 29; section 14 was amended by section 74(2) of, and paragraphs 1 and 4 of Schedule 8 to, the Serious Crime Act 2007 (c. 27).

(8)

2002 c. 29; sections 19, 20 and 21 were amended by section 74(2) of, and paragraph 1 and paragraphs 8, 9 and 10 respectively, of Schedule 8 to, the Serious Crime Act 2007 (c. 27).

(9)

2002 c. 29; section 22 was amended by section 74(2) of, and paragraph 11 of Schedule 8 to, the Serious Crime Act 2007 (c. 27).

(10)

2002 c. 29; section 23 was amended by section 74(2) of, and paragraph 12 of Schedule 8 to, the Serious Crime Act 2007 (c. 27).

(11)

2002 c. 29; sections 24 and 25 were amended by section 109(1) of, and paragraphs 406(a) and 406(b), respectively, of Schedule 8 to, the Courts Act 2003 (c. 39).

(12)

2002 c. 29.

(13)

2002 c. 29.

(14)

2002 c. 29; section 39(5) was amended by section 74(2) of, and paragraphs 1 and 21(2) of Schedule 8 to, the Serious Crime Act 2007 (c. 27).

(15)

2002 c. 29; paragraph (7A) was inserted by section 79 of, and paragraphs 1 and 11 of Schedule 11 to, the Serious Crime Act 2007 (c. 27).

(16)

2002 c. 29; section 72 was amended by section 50(6) of, and paragraph 97 of Schedule 4 to, the Commissioners for Revenue and Customs Act 2005 (c. 11), section 61 of the Policing and Crime Act 2009 (c. 26) and sections 15 and 55 of, and paragraphs 108 and 114 of Schedule 8 and paragraphs 14 and 19 of Schedule 21 to, the Crime and Courts Act 2013 (c. 22).

(17)

2002 c. 29.

(18)

2002 c. 29; section 67A is inserted by section 58 of the Policing and Crime Act 2009 (c. 26), with effect from a date to be appointed.

(19)

2002 c. 29; section 67C is inserted by section 58 of the Policing and Crime Act 2009 (c. 26), with effect from a date to be appointed.

(20)

2002 c. 29; section 67D is inserted by section 58 of the Policing and Crime Act 2009 (c. 26), with effect from a date to be appointed.