Office of Public Sector Information
PART I continued
(2) If the prosecutor has evidence—
(a) which was not available to him when the defendant appeared to be sentenced (and accordingly was not considered by the court), but
(b) which the prosecutor believes would have led the court to determine that the defendant had benefited from drug trafficking if—
(i) the prosecutor had asked the court to proceed under section 2 of this Act, and
(ii) the evidence had been considered by the court,
he may apply to the Crown Court for it to consider the evidence.
(3) The court shall proceed under section 2 of this Act if, having considered the evidence, it is satisfied that it is appropriate to do so.
(4) In considering whether it is appropriate to proceed under that section, the court shall have regard to all the circumstances of the case.
(5) Where, having decided to proceed under that section, the court proposes to make a confiscation order against the defendant, it shall order the payment of such amount as it thinks just in all the circumstances of the case.
(6) In considering the circumstances of any case the court shall have regard, in particular, to the amount of any fine or fines imposed on the defendant in respect of the offence or offences in question.
(7) Where the court is proceeding under section 2 of this Act by virtue of this section, subsection (4) of that section shall have effect as if the words “before sentencing or otherwise dealing with him in respect of the offence or, as the case may be, any of the offences concerned” were omitted.
(8) The court may take into account any payment or other reward received by the defendant on or after the date of conviction, but only if the prosecutor shows that it was received by the defendant in connection with drug trafficking carried on by the defendant or another person on or before that date.
(9) In considering under this section any evidence which relates to any payment or reward to which subsection (8) above applies, the court shall not make the assumptions which would otherwise be required by section 4 of this Act.
(10) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with the date of conviction.
(11) Sections 11 and 12 of this Act shall apply where the prosecutor makes an application under this section as they apply where the prosecutor asks the court to proceed under section 2 of this Act.
(12) In this section “the date of conviction” means—
(a) the date on which the defendant was convicted; or
(b) where he appeared to be sentenced in respect of more than one conviction, and those convictions were not all on the same date, the date of the latest of those convictions.
(1) This section applies where the court has made a determination under section 2(2) of this Act (“the section 2(2) determination”) that the defendant has not benefited from drug trafficking.
(2) If the prosecutor has evidence—
(a) which was not considered by the court in making the section 2(2) determination, but
(b) which the prosecutor believes would have led the court to determine that the defendant had benefited from drug trafficking if it had been considered by the court,
he may apply to the Crown Court for it to consider that evidence.
(3) If, having considered the evidence, the court is satisfied that it would have determined that the defendant had benefited from drug trafficking if that evidence had been available to it, the court—
(a) shall make—
(i) a fresh determination under subsection (2) of section 2 of this Act; and
(ii) a determination under subsection (4) of that section of the amount to be recovered by virtue of that section; and
(b) may make an order under that section.
(4) Where the court is proceeding under section 2 of this Act by virtue of this section, subsection (4) of that section shall have effect as if the words “before sentencing or otherwise dealing with him in respect of the offence or, as the case may be, any of the offences concerned” were omitted.
(5) The court may take into account any payment or other reward received by the defendant on or after the date of the section 2(2) determination, but only if the prosecutor shows that it was received by the defendant in connection with drug trafficking carried on by the defendant or another person on or before that date.
(6) In considering under this section any evidence which relates to any payment or reward to which subsection (5) above applies, the court shall not make the assumptions which would otherwise be required by section 4 of this Act.
(7) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with the date of conviction; and in this subsection “the date of conviction” has the same meaning as in section 13 of this Act.
(8) Sections 11 and 12 of this Act shall apply where the prosecutor makes an application under this section as they apply where the prosecutor asks the court to proceed under section 2 of this Act.
(1) This section applies where the court has made a determination under subsection (4) of section 2 of this Act of the amount to be recovered in a particular case by virtue of that section (“the current section 2(4) determination”).
(2) Where the prosecutor is of the opinion that the real value of the defendant’s proceeds of drug trafficking was greater than their assessed value, the prosecutor may apply to the Crown Court for the evidence on which the prosecutor has formed his opinion to be considered by the court.
(3) Sections 11 and 12 of this Act shall apply where the prosecutor makes such an application as they apply where the prosecutor asks the court to proceed under section 2 of this Act, but subject (in the case of section 11) to subsection (9)(a) below.
(4) If, having considered the evidence, the court is satisfied that the real value of the defendant’s proceeds of drug trafficking is greater than their assessed value (whether because the real value at the time of the current section 2(4) determination was higher than was thought or because the value of the proceeds in question has subsequently increased), the court shall make a fresh determination under subsection (4) of section 2 of this Act of the amount to be recovered by virtue of that section.
(5) In subsections (2) and (4) above—
“assessed value” means the value of the defendant’s proceeds of drug trafficking as assessed by the court in accordance with section 5(1) of this Act; and
“real value” means the value of the defendant’s proceeds of drug trafficking which took place—
in the period by reference to which the current section 2(4) determination was made; or
in any earlier period.
(6) Where the court is proceeding under section 2 of this Act by virtue of this section, subsection (4) of that section shall have effect as if the words “before sentencing or otherwise dealing with him in respect of the offence or, as the case may be, any of the offences concerned” were omitted.
(7) Any determination under section 2(4) of this Act by virtue of this section shall be by reference to the amount that might be realised at the time when the determination is made.
(8) In the case of any determination under section 2(4) of this Act by virtue of this section, section 4(6) of this Act shall not apply in relation to any of the defendant’s proceeds of drug trafficking taken into account in respect of the current section 2(4) determination.
(9) In relation to any such determination by virtue of this section—
(a) sections 5(2), 6(4) and 11(9)(a) of this Act shall have effect as if for “confiscation order” there were substituted “determination”;
(b) section 5(3) shall have effect as if for “confiscation order is made” there were substituted “determination is made”; and
(c) section 6(1) of this Act shall have effect as if for “a confiscation order is made against the defendant” there were substituted “of the determination”.
(10) The court may take into account any payment or other reward received by the defendant on or after the date of the current section 2(4) determination, but only if the prosecutor shows that it was received by the defendant in connection with drug trafficking carried on by the defendant or another person on or before that date.
(11) In considering under this section any evidence which relates to any payment or reward to which subsection (10) above applies, the court shall not make the assumptions which would otherwise be required by section 4 of this Act.
(12) If, as a result of making the fresh determination required by subsection (4) above, the amount to be recovered exceeds the amount set by the current section 2(4) determination, the court may substitute for the amount to be recovered under the confiscation order which was made by reference to the current section 2(4) determination such greater amount as it thinks just in all the circumstances of the case.
(13) Where the court varies a confiscation order under subsection (12) above it shall substitute for the term of imprisonment or of detention fixed under section 31(2) of the Powers[1973 c. 62.] of Criminal Courts Act 1973 in respect of the amount to be recovered under the order a longer term determined in accordance with that section (as it has effect by virtue of section 9 of this Act) in respect of the greater amount substituted under subsection (12) above.
(14) Subsection (13) above shall apply only if the effect of the substitution is to increase the maximum period applicable in relation to the order under section 31(3A) of the 1973 Act.
(15) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with the date of conviction; and in this subsection “the date of conviction” has the same meaning as in section 13 of this Act.
(1) This section applies where, by virtue of section 5(3) of this Act, the amount which a person is ordered to pay by a confiscation order is less than the amount assessed to be the value of his proceeds of drug trafficking.
(2) If, on an application made in accordance with subsection (3) below, the High Court is satisfied that the amount that might be realised in the case of the person in question is greater than the amount taken into account in making the confiscation order (whether it was greater than was thought when the order was made or has subsequently increased) the court shall issue a certificate to that effect, giving the court’s reasons.
(3) An application under subsection (2) above may be made either by the prosecutor or by a receiver appointed in relation to the realisable property of the person in question under section 26 or 29 of this Act or in pursuance of a charging order.
(4) Where a certificate has been issued under subsection (2) above the prosecutor may apply to the Crown Court for an increase in the amount to be recovered under the confiscation order; and on that application the court may—
(a) substitute for that amount such amount (not exceeding the amount assessed as the value referred to in subsection (1) above) as appears to the court to be appropriate having regard to the amount now shown to be realisable; and
(b) increase the term of imprisonment or detention fixed in respect of the confiscation order under subsection (2) of section 31 of the Powers[1973 c. 62.] of Criminal Courts Act 1973 (as it has effect by virtue of section 9 of this Act) if the effect of the substitution is to increase the maximum period applicable in relation to the order under subsection (3A) of that section.
(1) If, on an application made in respect of a confiscation order by—
(a) the defendant, or
(b) a receiver appointed under section 26 or 29 of this Act or in pursuance of a charging order,
the High Court is satisfied that the realisable property is inadequate for the payment of any amount remaining to be recovered under the confiscation order, the court shall issue a certificate to that effect, giving the court’s reasons.
(2) For the purposes of subsection (1) above—
(a) in the case of realisable property held by a person who has been adjudged bankrupt or whose estate has been sequestrated the court shall take into account the extent to which any property held by him may be distributed among creditors; and
(b) the court may disregard any inadequacy in the realisable property which appears to the court to be attributable wholly or partly to anything done by the defendant for the purpose of preserving any property held by a person to whom the defendant had directly or indirectly made a gift caught by this Act from any risk of realisation under this Act.
(3) Where a certificate has been issued under subsection (1) above, the person who applied for it may apply to the Crown Court for the amount to be recovered under the confiscation order to be reduced.
(4) The Crown Court shall, on an application under subsection (3) above—
(a) substitute for the amount to be recovered under the order such lesser amount as the court thinks just in all the circumstances of the case; and
(b) substitute for the term of imprisonment or of detention fixed under subsection (2) of section 31 of the Powers[1973 c. 62.] of Criminal Courts Act 1973 in respect of the amount to be recovered under the order a shorter term determined in accordance with that section (as it has effect by virtue of section 9 of this Act) in respect of the lesser amount.
(5) Rules of court may make provision—
(a) for the giving of notice of any application under this section; and
(b) for any person appearing to the court to be likely to be affected by any exercise of its powers under this section to be given an opportunity to make representations to the court.
(1) If proceedings are instituted against a person for any drug trafficking offence or offences and either—
(a) the proceedings do not result in his conviction for any drug trafficking offence, or
(b) he is convicted of one or more drug trafficking offences but—
(i) the conviction or convictions concerned are quashed, or
(ii) he is pardoned by Her Majesty in respect of the conviction or convictions concerned,
the High Court may, on an application by a person who held property which was realisable property, order compensation to be paid to the applicant if, having regard to all the circumstances, it considers it appropriate to make such an order.
(2) The High Court shall not order compensation to be paid in any case unless the court is satisfied—
(a) that there has been some serious default on the part of a person concerned in the investigation or prosecution of the offence or offences concerned, being a person mentioned in subsection (5) below; and
(b) that the applicant has suffered loss in consequence of anything done in relation to the property by or in pursuance of—
(i) an order of the High Court or a county court under sections 26 to 29 of this Act; or
(ii) an order of the Court of Session under section 11 (as applied by subsection (6) of that section), 27 or 28 of the Criminal[1987 c. 41.] Justice (Scotland) Act 1987 (inhibition and arrestment of property affected by restraint order and recognition and enforcement of orders under this Act).
(3) The High Court shall not order compensation to be paid in any case where it appears to the court that the proceedings would have been instituted or continued even if the serious default had not occurred.
(4) The amount of compensation to be paid under this section shall be such as the High Court thinks just in all the circumstances of the case.
(5) Compensation payable under this section shall be paid—
(a) where the person in default was, or was acting as, a member of a police force, out of the police fund out of which the expenses of that police force are met;
(b) where the person in default was a member of the Crown Prosecution Service or was acting on behalf of the service, by the Director of Public Prosecutions; and
(c) where the person in default was an officer within the meaning of the Customs[1979 c. 2.] and Excise Management Act 1979, by the Commissioners of Customs and Excise.
(1) Subsection (2) below applies where a person has been convicted of one or more drug trafficking offences.
(2) If the prosecutor asks it to proceed under this section, the High Court may exercise the powers of the Crown Court under this Act to make a confiscation order against the defendant if satisfied that the defendant has died or absconded.
(3) Subsection (4) below applies where proceedings for one or more drug trafficking offences have been instituted against a person but have not been concluded.
(4) If the prosecutor asks it to proceed under this section, the High Court may exercise the powers of the Crown Court under this Act to make a confiscation order against the defendant if satisfied that the defendant has absconded.
(5) The power conferred by subsection (4) above may not be exercised at any time before the end of the period of two years beginning with the date which is, in the opinion of the court, the date on which the defendant absconded.
(6) In any proceedings on an application under this section—
(a) section 4(2) of this Act shall not apply;
(b) section 11 of this Act shall apply as it applies where the prosecutor asks the court to proceed under section 2 of this Act, but with the omission of subsections (5), (7) and (8);
(c) the court shall not make a confiscation order against a person who has absconded unless it is satisfied that the prosecutor has taken reasonable steps to contact him; and
(d) any person appearing to the court to be likely to be affected by the making of a confiscation order by the court shall be entitled to appear before the court and make representations.
(7) Subject to subsection (8) below, section 9 of this Act applies in relation to confiscation orders made by the High Court by virtue of this section as it applies in relation to confiscation orders made by the Crown Court and, for that purpose, references to the Crown Court in the provisions of the 1973 Act referred to in subsection (1) of that section (except in section 32(1)(b) of that Act) shall be construed as references to the High Court.
(8) Where the High Court makes a confiscation order by virtue of this section in relation to a defendant who has died, section 9(1) of this Act shall be read as referring only to sections 31(1) and 32(1) of the 1973 Act.
(9) Where the High Court—
(a) has been asked to proceed under this section in relation to a defendant who has absconded, but
(b) has decided not to make a confiscation order against him,
section 14 of this Act shall not apply at any time while he remains an absconder.
(10) Where a confiscation order has been made in relation to any defendant by virtue of this section, section 15 of this Act shall not apply at any time while he is an absconder.
(1) Where, in the case of any defendant, the High Court has made a confiscation order by virtue of section 19 of this Act, the Crown Court shall, in respect of the offence or, as the case may be, any of the offences concerned—
(a) take account of the order before—
(i) imposing any fine on the defendant;
(ii) making any order involving any payment by him; or
(iii) making any order under section 27 of the Misuse[1971 c. 38.] of Drugs Act 1971 (forfeiture orders) or section 43 of the Powers[1973 c. 62.] of Criminal Courts Act 1973 (deprivation orders); and
(b) subject to paragraph (a) above, leave the order out of account in determining the appropriate sentence or other manner of dealing with him.
(2) Where the High Court has made a confiscation order by virtue of section 19 of this Act and the defendant subsequently appears before the Crown Court to be sentenced in respect of one or more of the offences concerned, section 2(1) of this Act shall not apply so far as his appearance is in respect of that offence or those offences.
(1) This section applies where—
(a) the High Court has made a confiscation order by virtue of section 19(4) of this Act, and
(b) the defendant has ceased to be an absconder.
(2) If the defendant alleges that—
(a) the value of his proceeds of drug trafficking in the period by reference to which the determination in question was made (the “original value”), or
(b) the amount that might have been realised at the time the confiscation order was made,
was less than the amount ordered to be paid under the confiscation order, he may apply to the High Court for it to consider his evidence.
(3) If, having considered that evidence, the court is satisfied that the defendant’s allegation is correct, it—
(a) shall make a fresh determination under subsection (4) of section 2 of this Act; and
(b) may, if it considers it just in all the circumstances, vary the amount to be recovered under the confiscation order.
(4) In the case of any determination under section 2 of this Act by virtue of this section, section 4(6) of this Act shall not apply in relation to any of the defendant’s proceeds of drug trafficking taken into account in determining the original value.
(5) Where the court varies a confiscation order under this section—
(a) it shall substitute for the term of imprisonment or of detention fixed under section 31(2) of the Powers[1973 c. 62.] of Criminal Courts Act 1973 in respect of the amount to be recovered under the order a shorter term determined in accordance with that section (as it has effect by virtue of section 19 of this Act) in respect of the lesser amount; and
(b) on the application of a person who held property which was realisable property, it may order compensation to be paid to the applicant in accordance with section 24 of this Act if—
(i) it is satisfied that the applicant has suffered loss as a result of the making of the confiscation order; and
(ii) having regard to all the circumstances of the case, the court considers it to be appropriate.
(6) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with the date on which the confiscation order was made.
(1) This section applies where—
(a) the High Court has made a confiscation order by virtue of section 19(4) of this Act, and
(b) the defendant is subsequently tried for the offence or offences concerned and acquitted on all counts.
(2) The court by which the defendant is acquitted shall cancel the confiscation order.
(3) The High Court may, on the application of a person who held property which was realisable property, order compensation to be paid to the applicant in accordance with section 24 of this Act if it is satisfied that the applicant has suffered loss as a result of the making of the confiscation order.
(1) This section applies where—
(a) the High Court has made a confiscation order by virtue of section 19(4) of this Act in relation to an absconder;
(b) the defendant has ceased to be an absconder; and
(c) section 22 of this Act does not apply.
(2) The High Court may, on the application of the defendant, cancel the confiscation order if it is satisfied that—
(a) there has been undue delay in continuing the proceedings in respect of which the power under section 19(4) of this Act was exercised; or
(b) the prosecutor does not intend to proceed with the prosecution.
(3) Where the High Court cancels a confiscation order under this section it may, on the application of a person who held property which was realisable property, order compensation to be paid to the applicant in accordance with section 24 of this Act if it is satisfied that the applicant has suffered loss as a result of the making of the confiscation order.
(1) Where the High Court orders compensation to be paid under section 21, 22 or 23 of this Act, the amount of that compensation shall be such as the court considers just in all the circumstances of the case.
(2) Rules of court may make provision—
(a) for the giving of notice of any application under section 21, 22 or 23 of this Act; and
(b) for any person appearing to the court to be likely to be affected by any exercise of its powers under any of those sections to be given an opportunity to make representations to the court.
(3) Any payment of compensation under any of those sections shall be made by the Lord Chancellor.
(4) Where the court cancels a confiscation order under section 22 or 23 of this Act it may make such consequential or incidental order as it considers appropriate in connection with the cancellation.
(1) The powers conferred on the High Court by sections 26(1) and 27(1) of this Act are exercisable where—
(a) proceedings have been instituted in England and Wales against the defendant for a drug trafficking offence or an application has been made by the prosecutor in respect of the defendant under section 13, 14, 15, 16 or 19 of this Act;
(b) the proceedings have not, or the application has not, been concluded; and
(c) the court is satisfied that there is reasonable cause to believe—
(i) in the case of an application under section 15 or 16 of this Act, that the court will be satisfied as mentioned in section 15(4) or, as the case may be, 16(2) of this Act; or
(ii) in any other case, that the defendant has benefited from drug trafficking.
(2) The court shall not exercise those powers by virtue of subsection (1) above if it is satisfied—
(a) that there has been undue delay in continuing the proceedings or application in question; or
(b) that the prosecutor does not intend to proceed.
(3) The powers mentioned in subsection (1) above 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 a drug trafficking offence or that an application of a kind mentioned in subsection (1)(a) above is to be made in respect of the defendant; and
(b) the court is also satisfied as mentioned in subsection (1)(c) above.
(4) For the purposes of sections 26 and 27 of this Act, at any time when those powers are exercisable before proceedings have been instituted—
(a) references in this Act to the defendant shall be construed as references to the person referred to in subsection (3)(a) above;
(b) references in 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 Act to realisable property shall be construed as if, immediately before that time, proceedings had been instituted against the person referred to in subsection (3)(a) above for a drug trafficking offence.
(5) Where the court has made an order under section 26(1) or 27(1) of this Act by virtue of subsection (3) 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, or (as the case may be) if the application is not made, within such time as the court considers reasonable.
(1) The High Court may by order (in this Act referred to 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) 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.
(3) This section shall not have effect in relation to any property for the time being subject to a charge under section 27 of this Act or section 9 of the Drug[1986 c. 32.] Trafficking Offences Act 1986.
(4) 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.
(5) A restraint order—
(a) may be discharged or varied in relation to any property; and
(b) shall be discharged on the conclusion of the proceedings or of the application in question.
(6) An application for the discharge or variation of a restraint order may be made by any person affected by it.
(7) Where the High Court has made a restraint order, the High Court or a county court—
(a) may at any time appoint a receiver—
(i) to take possession of any realisable property, and
(ii) 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
(b) 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.
(8) For the purposes of this section, dealing with property held by any person includes (without prejudice to the generality of that 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.
(9) Where a restraint order has been made a constable may seize any realisable property for the purpose of preventing its removal from Great Britain.
(10) In subsection (9) above, the reference to a restraint order includes a reference to a restraint order within the meaning of Part I of the Criminal[1987 c. 41.] Justice (Scotland) Act 1987, and in relation to such an order “realisable property” has the same meaning as in that Part.
(11) Property seized under subsection (9) above shall be dealt with in accordance with the directions of the court which made the order.
(12) The Land[1972 c. 61.] Charges Act 1972 and the Land[1925 c. 21.] 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.
Drug Trafficking Act 1994