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(1) The Crown Court and a magistrates' court shall each have power, in addition to dealing with an offender in any other way, to make an order under this section requiring him to pay such sum as the court thinks fit.
(2) The Crown Court may make such an order against an offender where—
(a) he is found guilty of any offence to which this Part of this Act applies; and
(b) it is satisfied—
(i) that he has benefited from that offence or from that offence taken together with some other offence of which he is convicted in the same proceedings, or which the court takes into consideration in determining his sentence, and which is not a drug trafficking offence; and
(ii) that his benefit is at least the minimum amount.
(3) A magistrates' court may make such an order against an offender where—
(a) he is convicted of an offence listed in Schedule 4 to this Act; and
(b) it is satisfied—
(i) that he has benefited from that offence or from that offence taken together with some other offence listed in that Schedule of which he is convicted in the same proceedings, or which the court takes into consideration in determining his sentence; and
(ii) that his benefit is at least the minimum amount.
(4) For the purposes of this Part of this Act a person benefits from an offence if he obtains property as a result of or in connection with its commission and his benefit is the value of the property so obtained.
(5) Where a person derives a pecuniary advantage as a result of or in connection with the commission of an offence, he is to be treated for the purposes of this Part of this Act as if he had obtained as a result of or in connection with the commission of the offence a sum of money equal to the value of the pecuniary advantage.
(6) The sum which an order made by a court under this section requires an offender to pay must be at least the minimum amount, but must not exceed—
(a) the benefit in respect of which it is made; or
(b) the amount appearing to the court to be the amount that might be realised at the time the order is made,
whichever is the less.
(7) For the purposes of this Part of this Act the minimum amount is £10,000 or such other amount as the Secretary of State may specify by order made by statutory instrument.
(8) A statutory instrument containing an order made by the Secretary of State under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(9) In this Part of this Act—
(a) an order made by a court under this section is referred to as a “confiscation order”;
(b) “drug trafficking offence” has the same meaning as in the [1986 c. 32.] Drug Trafficking Offences Act 1986;
(c) references to an offence to which this Part of this Act applies are references to any offence which—
(i) is listed in Schedule 4 to this Act; or
(ii) if not so listed, is an indictable offence, other than a drug trafficking offence; and
(d) a person against whom proceedings have been instituted for an offence to which this Part of this Act applies is referred to (whether or not he has been convicted) as “the defendant”.
(1) A court shall not make a confiscation order unless the prosecutor has given written notice to the court to the effect that it appears to him that, were the court to consider that it ought to make such an order, it would be able to make an order requiring the offender to pay at least the minimum amount.
(2) If the prosecutor gives the court such a notice, the court shall determine whether it ought to make a confiscation order.
(3) When considering whether to make a confiscation order the court may take into account any information that has been placed before it showing that a victim of an offence to which the proceedings relate has instituted, or intends to institute, civil proceedings against the defendant in respect of loss, injury or damage sustained in connection with the offence.
(4) If the court determines that it ought to make such an order, the court shall, before sentencing or otherwise dealing with the offender in respect of the offence or, as the case may be, any of the offences concerned, determine the amount to be recovered in his case by virtue of this section and make a confiscation order for that amount specifying the offence or offences.
(5) Where a court makes a confiscation order against a defendant in any proceedings, it shall be its duty, in respect of any offence of which he is convicted in those proceedings, to take account of the order before—
(a) imposing any fine on him;
(b) making any order involving any payment by him, other than an order under section 35 of the [1973 c. 62.] Powers of Criminal Courts Act 1973 (compensation orders); or
(c) making any order under—
(i) section 27 of the [1971 c. 38.] Misuse of Drugs Act 1971 (forfeiture orders); or
(ii) section 43 of the [1973 c. 62.] Powers of Criminal Courts Act 1973 (deprivation orders),
but subject to that shall leave the order out of account in determining the appropriate sentence or other manner of dealing with him.
(6) No enactment restricting the power of a court dealing with an offender in a particular way from dealing with him also in any other way shall by reason only of the making of a confiscation order restrict the court from dealing with an offender in any way it considers appropriate in respect of an offence to which this Part of this Act applies.
(7) Where—
(a) a court makes both a confiscation order and an order for the payment of compensation under section 35 of the Powers of Criminal Courts Act 1973 against the same person in the same proceedings; and
(b) it appears to the court that he will not have sufficient means to satisfy both the orders in full,
it shall direct that so much of the compensation as will not in its opinion be recoverable because of the insufficiency of his means shall be paid out of any sums recovered under the confiscation order.
(1) Where—
(a) a defendant has been convicted of an offence to which this Part of this Act applies and the prosecutor tenders to the court a statement as to any matters relevant—
(i) to determining whether the defendant has benefited from the offence or from any other offence to which this Part of this Act applies of which he is convicted in the same proceedings or which is taken into consideration in determining his sentence; or
(ii) to an assessment of the value of the defendant’s benefit from the offence or any other offence to which this Part of this Act applies of which he is so convicted or which is so taken into consideration; and
(b) the defendant accepts to any extent any allegation in the statement;
the court may, for the purposes of so determining or making such an assessment, treat his acceptance as conclusive of the matters to which it relates.
(2) Where—
(a) a statement is tendered under subsection (1)(a) above, and
(b) the court is satisfied that a copy of that statement has been served on the defendant,
the court may require the defendant to indicate to what extent he accepts each allegation in the statement and, so far as he does not accept any such allegation, to indicate any matters he proposes to rely on.
(3) If the defendant fails in any respect to comply with a requirement under subsection (2) above, he may be treated for the purposes of this section as accepting every allegation in the statement apart from—
(a) any allegation in respect of which he has complied with the requirement; and
(b) any allegation that he has benefited from an offence or that any property was obtained by him as a result of or in connection with the commission of an offence.
(4) Where—
(a) there is tendered to the court by the defendant a statement as to any matters relevant to determining the amount that might be realised at the time the confiscation order is made; and
(b) the prosecutor accepts to any extent any allegation in the statement;
the court may, for the purposes of that determination, treat the acceptance by the prosecutor as conclusive of the matters to which it relates.
(5) An allegation may be accepted or a matter indicated for the purposes of this section either—
(a) orally before the court; or
(b) in writing in accordance with rules of court.
(6) If the court is satisfied as to any matter relevant for determining the amount that might be realised at the time the confiscation order is made (whether by an acceptance under this section or otherwise), the court may issue a certificate giving the court’s opinion as to the matters concerned and shall do so if satisfied that the amount that might be realised at the time the confiscation order is made is less than the amount the court assesses to be the value of the defendant’s benefit from the offence or, if more than one, all the offences in respect of which the order may be made.
(1) In this Part of this Act, “realisable property” means, subject to subsection (2) below—
(a) any property held by the defendant; and
(b) any property held by a person to whom the defendant has directly or indirectly made a gift caught by this Part of this Act.
(2) Property is not realisable property if—
(a) an order under section 43 of the [1973 c. 62.] Powers of Criminal Courts Act 1973 (deprivation orders);
(b) an order under section 27 of the [1971 c. 38.] Misuse of Drugs Act 1971 (forfeiture orders); or
(c) an order under section 223 or 436 of the [1975 c. 21.] Criminal Procedure (Scotland) Act 1975 (forfeiture of property),
is in force in respect of the property.
(3) For the purposes of this Part of this Act the amount that might be realised at the time a confiscation order is made is—
(a) the total of the values at that time of all the realisable property held by the defendant, less
(b) where there are obligations having priority at that time, the total amounts payable in pursuance of such obligations,
together with the total of the values at that time of all gifts caught by this Part of this Act.
(4) Subject to the following provisions of this section, for the purposes of this Part of this Act the value of property (other than cash) in relation to any person holding the property—
(a) where any other person holds an interest in the property, is—
(i) the market value of the first-mentioned person’s beneficial interest in the property, less
(ii) the amount required to discharge any incumbrance (other than a charging order) on that interest; and
(b) in any other case, is its market value.
(5) References in this Part of this Act to the value at any time (referred to in subsection (6) below as “the material time”) of any property obtained by a person as a result of or in connection with the commission of an offence are references to—
(a) the value of the property to him when he obtained it adjusted to take account of subsequent changes in the value of money; or
(b) where subsection (6) below applies, the value there mentioned,
whichever is the greater.
(6) If at the material time he holds—
(a) the property which he obtained (not being cash); or
(b) property which, in whole or in part, directly or indirectly represents in his hands the property which he obtained,
the value referred to in subsection (5)(b) above is the value to him at the material time of the property mentioned in paragraph (a) above or, as the case may be, of the property mentioned in paragraph (b) above, so far as it so represents the property which he obtained, but disregarding any charging order.
(7) Subject to subsection (12) below, references in this Part of this Act to the value at any time (referred to in subsection (8) below as “the material time”) of a gift caught by this Part of this Act are references to—
(a) the value of the gift to the recipient when he received it adjusted to take account of subsequent changes in the value of money; or
(b) where subsection (8) below applies, the value there mentioned,
whichever is the greater.
(8) Subject to subsection (12) below, if at the material time he holds—
(a) the property which he received (not being cash); or
(b) property which, in whole or in part, directly or indirectly represents in his hands the property which he received;
the value referred to in subsection (7) above is the value to him at the material time of the property mentioned in paragraph (a) above or, as the case may be, of the property mentioned in paragraph (b) above so far as it so represents the property which he received, but disregarding any charging order.
(9) For the purposes of subsection (3) above, an obligation has priority at any time if it is an obligation of the defendant to—
(a) pay an amount due in respect of a fine, or other order of a court, imposed or made on conviction of an offence, where the fine was imposed or order made before the confiscation order; or
(b) pay any sum which would be included among the preferential debts (within the meaning given by section 386 of the [1986 c. 45.] Insolvency Act 1986) in the defendant’s bankruptcy commencing on the date of the confiscation order or winding up under an order of the court made on that date.
(10) A gift (including a gift made before the commencement of this Part of this Act) is caught by this Part of this Act if—
(a) it was made by the defendant at any time after the commission of the offence or, if more than one, the earliest of the offences to which the proceedings for the time being relate; and
(b) the court considers it appropriate in all the circumstances to take the gift into account.
(11) The reference in subsection (10) above to an offence to which the proceedings for the time being relate includes, where the proceedings have resulted in the conviction of the defendant, a reference to any offence which the court takes into consideration when determining his sentence.
(12) For the purposes of this Part of this Act—
(a) the circumstances in which the defendant is to be treated as making a gift include those where he transfers property to another person directly or indirectly for a consideration the value of which is significantly less than the value of the consideration provided by the defendant; and
(b) in those circumstances, the preceding provisions of this section shall apply as if the defendant had made a gift of such share in the property as bears to the whole property the same proportion as the difference between the values referred to in paragraph (a) above bears to the value of the consideration provided by the defendant.
(1) Where the Crown Court orders the defendant to pay an amount under this Part of this Act, sections 31(1) to (3C) and 32(1) and (2) of the [1973 c. 62.] Powers of Criminal Courts Act 1973 (powers of Crown Court in relation to fines and enforcement of Crown Court fines) shall have effect as if that amount were a fine imposed on him by the Crown Court.
(2) Where a magistrates' court orders the defendant to pay an amount under this Part of this Act, that amount shall be treated as a fine for the purposes of section 31(3) of the [1980 c. 43.] Magistrates' Courts Act 1980 (general limit on the power of a magistrates' court to impose imprisonment not to apply in the case of imprisonment in default).
(3) Where—
(a) a warrant of commitment is issued for a default in payment of an amount ordered to be paid under this Part of this Act in respect of an offence; and
(b) at the time the warrant is issued, the defendant is liable to serve a term of custody in respect of the offence;
the term of imprisonment or of detention under section 9 of the [1982 c. 48.] Criminal Justice Act 1982 (detention of persons aged 17 to 20 for default) to be served in default of payment of the amount shall not begin to run until after the term mentioned in paragraph (b) above.
(4) The reference in subsection (3) above to the term of custody which the defendant is liable to serve in respect of the offence 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; and for the purposes of this subsection—
(a) consecutive terms and terms which are wholly or partly concurrent shall be treated as a single term; and
(b) there shall be disregarded—
(i) any sentence suspended under section 22(1) of the [1973 c. 62.] Powers of Criminal Courts Act 1973 which has not taken effect at the time the warrant is issued;
(ii) in the case of a sentence of imprisonment passed with an order under section 47(1) of the [1977 c. 45.] Criminal Law Act 1977, any part of the sentence which the defendant has not at that time been required to serve in prison; and
(iii) any term of imprisonment or detention fixed under section 31(2) of the Powers of Criminal Courts Act 1973 for which a warrant of commitment has not been issued at that time.
(5) In the application of Part III of the [1980 c. 43.] Magistrates' Courts Act 1980 to amounts payable under confiscation orders—
(a) 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); and
(b) in section 87 (enforcement by High Court or county court), subsection (3) shall be omitted.
(6) This section applies in relation to confiscation orders made by the criminal division of the Court of Appeal, or by the House of Lords on appeal from that division, as it applies in relation to confiscation orders made by the Crown Court, and the reference in subsection (1) above to the Crown Court shall be construed accordingly.
(1) The powers conferred on the High Court by sections 77(1) and 78(1) below are exercisable where—
(a) proceedings have been instituted in England and Wales against the defendant for an offence to which this Part of this Act applies;
(b) the proceedings have not been concluded; and
(c) either a confiscation order has been made or it appears to the court that there are reasonable grounds for thinking that a confiscation order may be made in them.
(2) Those powers are also exercisable where—
(a) the court is satisfied that, whether by the laying of an information or otherwise, a person is to be charged with an offence to which this Part of this Act applies; and
(b) it appears to the court that a confiscation order may be made in proceedings for the offence.
(3) For the purposes of sections 77, 78 and 92 below at any time when those powers are exercisable before proceedings have been instituted—
(a) references in this Part of this Act to the defendant shall be construed as references to the person referred to in subsection (2)(a) above;
(b) references in this Part of this Act to the prosecutor shall be construed as references to the person who the High Court is satisfied is to have the conduct of the proposed proceedings; and
(c) references in this Part of this Act to realisable property shall be construed as if, immediately before that time, proceedings had been instituted against the person referred to in subsection (2)(a) above for an offence to which this Part of this Act applies.
(4) Where the court has made an order under section 77(1) or 78(1) below by virtue of subsection (2) above, the court shall discharge the order if proceedings in respect of the offence are not instituted (whether by the laying of an information or otherwise) within such time as the court considers reasonable.
(1) The High Court may by order (referred to in this Part of this Act as a “restraint order”) prohibit any person from dealing with any realisable property, subject to such conditions and exceptions as may be specified in the order.
(2) Without prejudice to the generality of subsection (1) above, a restraint order may make such provision as the court thinks fit for living expenses and legal expenses.
(3) A restraint order may apply—
(a) to all realisable property held by a specified person, whether the property is described in the order or not; and
(b) to realisable property held by a specified person, being property transferred to him after the making of the order.
(4) This section shall not have effect in relation to any property for the time being subject to a charge under section 78 below.
(5) A restraint order—
(a) may be made only on an application by the prosecutor;
(b) may be made on an ex parte application to a judge in chambers; and
(c) shall provide for notice to be given to persons affected by the order.
(6) A restraint order—
(a) may be discharged or varied in relation to any property; and
(b) shall be discharged when proceedings for the offence are concluded.
(7) An application for the discharge or variation of a restraint order may be made by any person affected by it.
(8) Where the High Court has made a restraint order, the court may at any time appoint a receiver—
(a) to take possession of any realisable property, and
(b) in accordance with the court’s directions, to manage or otherwise deal with any property in respect of which he is appointed,
subject to such exceptions and conditions as may be specified by the court; and may require any person having possession of property in respect of which a receiver is appointed under this section to give possession of it to the receiver.
(9) For the purposes of this section, dealing with property held by any person includes (without prejudice to the generality of the expression)—
(a) where a debt is owed to that person, making a payment to any person in reduction of the amount of the debt; and
(b) removing the property from Great Britain.
(10) Where the High Court has made a restraint order, a constable may for the purpose of preventing any realisable property being removed from Great Britain, seize the property.
(11) Property seized under subsection (10) above shall be dealt with in accordance with the court’s directions.
(12) The [1972 c. 61.] Land Charges Act 1972 and the [1925 c. 21.] Land Registration Act 1925 shall apply—
(a) in relation to restraint orders, as they apply in relation to orders affecting land made by the court for the purpose of enforcing judgments or recognisances; and
(b) in relation to applications for restraint orders, as they apply in relation to other pending land actions.
(13) The prosecutor shall 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 restraint order or an application for such an order relates.
(1) The High Court may make a charging order on realisable property for securing the payment to the Crown—
(a) where a confiscation order has not been made, of an amount equal to the value from time to time of the property charged; and
(b) in any other case, of an amount not exceeding the amount payable under the confiscation order.
(2) For the purposes of this Part of this Act, a charging order is an order made under this section imposing on any such realisable property as may be specified in the order a charge for securing the payment of money to the Crown.
(3) A charging order—
(a) may be made only on an application by the prosecutor;
(b) may be made on an ex parte application to a judge in chambers;
(c) shall provide for notice to be given to persons affected by the order; and
(d) may be made subject to such conditions as the court thinks fit and, without prejudice to the generality of this paragraph, such conditions as it thinks fit as to the time when the charge is to become effective.
(4) Subject to subsection (6) below, a charge may be imposed by a charging order only on—
(a) any interest in realisable property, being an interest held beneficially by the defendant or by a person to whom the defendant has directly or indirectly made a gift caught by this Part of this Act—
(i) in any asset of a kind mentioned in subsection (5) below; or
(ii) under any trust; or
(b) any interest in realisable property held by a person as trustee of a trust if the interest is in such an asset or is an interest under another trust and a charge may by virtue of paragraph (a) above be imposed by a charging order on the whole beneficial interest under the first-mentioned trust.
(5) The assets referred to in subsection (4) above are—
(a) land in England and Wales; or
(b) securities of any of the following kinds—
(i) government stock;
(ii) stock of any body (other than a building society) incorporated within England and Wales;
(iii) stock of any body incorporated outside England and Wales or of any country or territory outside the United Kingdom, being stock registered in a register kept at any place within England and Wales;
(iv) units of any unit trust in respect of which a register of the unit holders is kept at any place within England and Wales.
(6) In any case where a charge is imposed by a charging order on any interest in an asset of a kind mentioned in subsection (5)(b) above, the court may provide for the charge to extend to any interest or dividend payable in respect of the asset.
(7) The court may make an order discharging or varying the charging order and shall make an order discharging the charging order if the proceedings for the offence are concluded or the amount payment of which is secured by the charge is paid into court.
(8) An application for the discharge or variation of a charging order may be made by any person affected by it.
(1) The [1972 c. 61.] Land Charges Act 1972 and the [1925 c. 21.] Land Registration Act 1925 shall apply in relation to charging orders as they apply in relation to orders or writs issued or made for the purpose of enforcing judgments.
(2) Where a charging order has been registered under section 6 of the Land Charges Act 1972, subsection (4) of that section (effect of non-registration of writs and orders registrable under that section) shall not apply to an order appointing a receiver made in pursuance of the charging order.
(3) Subject to any provision made under section 80 below or by rules of court, a charge imposed by a charging order shall have the like effect and shall be enforceable in the same courts and in the same manner as an equitable charge created by the person holding the beneficial interest or, as the case may be, the trustees by writing under their hand.
(4) Where a charging order has been protected by an entry registered under the [1972 c. 61.] Land Charges Act 1972 or the [1925 c. 21.] Land Registration Act 1925, an order under section 78(7) above discharging the charging order may direct that the entry be cancelled.
(5) The Secretary of State may by order made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament amend section 78 above by adding to or removing from the kinds of asset for the time being referred to there any asset of a kind which in his opinion ought to be so added or removed.
(6) In this section and section 78 above, “building society”, “dividend”, “government stock”, “stock” and “unit trust” have the same meanings as in the [1979 c. 53.] Charging Orders Act 1979.
(1) Where—
(a) a confiscation order is made;
(b) the order is not subject to appeal; and
(c) the proceedings in which it was made have not been concluded,
the High Court may, on an application by the prosecutor, exercise the powers conferred by subsections (2) to (6) below.
(2) The court may appoint a receiver in respect of realisable property.
(3) The court may empower a receiver appointed under subsection (2) above, under section 77 above or in pursuance of a charging order—
(a) to enforce any charge imposed under section 78 above on realisable property or on interest or dividends payable in respect of such property; and
(b) in relation to any realisable property other than property for the time being subject to a charge under section 78 above, to take possession of the property subject to such conditions or exceptions as may be specified by the court.
(4) The court may order any person having possession of realisable property to give possession of it to any such receiver.
(5) The court may empower any such receiver to realise any realisable property in such manner as the court may direct.
(6) The court may order any person holding an interest in realisable property to make such payment to the receiver in respect of any beneficial interest held by the defendant or, as the case may be, the recipient of a gift caught by this Part of this Act as the court may direct and the court may, on the payment being made, by order transfer, grant or extinguish any interest in the property.
(7) Subsections (4) to (6) above do not apply to property for the time being subject to a charge under section 78 above.
(8) The court shall not in respect of any property exercise the powers conferred by subsection (3)(a), (5) or (6) above unless a reasonable opportunity has been given for persons holding any interest in the property to make representations to the court.
(1) Subject to subsection (2) below, the following sums in the hands of a receiver appointed under this Part of this Act or in pursuance of a charging order, that is—
(a) the proceeds of the enforcement of any charge imposed under section 78 above;
(b) the proceeds of the realisation, other than by the enforcement of such a charge, of any property under section 77 or 80 above; and
(c) any other sums, being property held by the defendant;
shall first be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under section 87(2) below and then shall, after such payments (if any) as the High Court may direct have been made out of those sums, be applied on the defendant’s behalf towards the satisfaction of the confiscation order.
Criminal Justice Act 1988