PART 2 continued
(5) In proceeding afresh in pursuance of this section the Crown Court must comply with any directions the House of Lords 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)—
(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.
(1) Subsection (2) applies if a court makes a confiscation order and any of the following paragraphs applies—
(a) the court proceeded under section 6 after being asked to do so by the Director;
(b) the court proceeded under section 6 by virtue of an application by the Director under section 19, 20, 27 or 28;
(c) the court proceeded under section 6 as a result of an appeal by the Director under section 31(2) or 33;
(d) before the court made the order the Director applied to the court to appoint him as the enforcement authority for the order.
(2) In any such case the court must appoint the Director as the enforcement authority for the order.
(1) This section applies if a court—
(a) makes a confiscation order, and
(b) does not appoint the Director as the enforcement authority for the order.
(2) Sections 139(2) to (4) and (9) and 140(1) to (4) of the Sentencing Act (functions of court as to fines and enforcing fines) apply as if the amount ordered to be paid were a fine imposed on the defendant by the court making the confiscation order.
(3) In the application of Part 3 of the Magistrates' Courts Act 1980 (c. 43) to an amount payable under a confiscation order—
(a) ignore section 75 of that Act (power to dispense with immediate payment);
(b) 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) of that Act;
(c) in section 87 of that Act ignore subsection (3) (inquiry into means).
(1) This section applies if a court—
(a) makes a confiscation order, and
(b) appoints the Director as the enforcement authority for the order.
(2) Section 139(2) to (4) and (9) of the Sentencing Act (functions of court as to fines) applies as if the amount ordered to be paid were a fine imposed on the defendant by the court making the confiscation order.
(1) If the Director believes that the conditions set out in subsection (2) are satisfied he may make an ex parte application to the Crown Court for the issue of a summons against the defendant.
(2) The conditions are that—
(a) a confiscation order has been made;
(b) the Director has been appointed as the enforcement authority for the order;
(c) because of the defendant’s wilful refusal or culpable neglect the order is not satisfied;
(d) the order is not subject to appeal;
(e) the Director has done all that is practicable (apart from this section) to enforce the order.
(3) If it appears to the Crown Court that the conditions are satisfied it may issue a summons ordering the defendant to appear before the court at the time and place specified in the summons.
(4) If the defendant fails to appear before the Crown Court in pursuance of the summons the court may issue a warrant for his arrest.
(5) If—
(a) the defendant appears before the Crown Court in pursuance of the summons or of a warrant issued under subsection (4), and
(b) the court is satisfied that the conditions set out in subsection (2) are satisfied,
it may issue a warrant committing the defendant to prison or detention for default in payment of the amount ordered to be paid by the confiscation order.
(6) Subsection (7) applies if the amount remaining to be paid under the confiscation order when the warrant under subsection (5) is issued is less than the amount ordered to be paid.
(7) In such a case the court must substitute for the term of imprisonment or detention fixed in respect of the order under section 139(2) of the Sentencing Act such term as bears to the original term the same proportion as the amount remaining to be paid bears to the amount ordered to be paid.
(8) Subsections (9) and (10) apply if—
(a) the defendant has been committed to prison or detention in pursuance of a warrant issued under subsection (5), and
(b) a payment is made in respect of some or all of the amount remaining to be paid under the confiscation order.
(9) If the payment is for the whole amount remaining to be paid the defendant must be released unless he is in custody for another reason.
(10) If the payment is for less than that amount, the period of commitment is reduced so that it bears to the term fixed under section 139(2) of the Sentencing Act the same proportion as the amount remaining to be paid bears to the amount ordered to be paid.
(1) Subsection (2) applies if—
(a) a warrant committing the defendant to prison or detention is issued for a default in payment of an amount ordered to be paid under a confiscation order in respect of an offence or offences, and
(b) at the time the warrant is issued the defendant is liable to serve a term of custody in respect of the offence (or any of the offences).
(2) In such a case the term of imprisonment or of detention under section 108 of the Sentencing Act (detention of persons aged 18 to 20 for default) to be served in default of payment of the amount does not begin to run until after the term mentioned in subsection (1)(b) above.
(3) The reference in subsection (1)(b) to the term of custody the defendant is liable to serve in respect of the offence (or any of the offences) 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 (or any of the offences).
(4) For the purposes of subsection (3) consecutive terms and terms which are wholly or partly concurrent must be treated as a single term and the following must be ignored—
(a) any sentence suspended under section 118(1) of the Sentencing Act which has not taken effect at the time the warrant is issued;
(b) in the case of a sentence of imprisonment passed with an order under section 47(1) of the Criminal Law Act 1977 (c. 45) (sentences of imprisonment partly served and partly suspended) any part of the sentence which the defendant has not at that time been required to serve in prison;
(c) any term of imprisonment or detention fixed under section 139(2) of the Sentencing Act (term to be served in default of payment of fine etc) for which a warrant committing the defendant to prison or detention has not been issued at that time.
(5) If the defendant serves a term of imprisonment or detention in default of paying any amount due under a confiscation order, his serving that term does not prevent the confiscation order from continuing to have effect so far as any other method of enforcement is concerned.
(1) Subsection (2) applies if—
(a) a court varies a confiscation order under section 21, 22, 23, 29, 32 or 33,
(b) the effect of the variation is to vary the maximum period applicable in relation to the order under section 139(4) of the Sentencing Act, and
(c) the result is that that maximum period is less than the term of imprisonment or detention fixed in respect of the order under section 139(2) of the Sentencing Act.
(2) In such a case the court must fix a reduced term of imprisonment or detention in respect of the confiscation order under section 139(2) of the Sentencing Act in place of the term previously fixed.
(3) Subsection (4) applies if paragraphs (a) and (b) of subsection (1) apply but paragraph (c) does not.
(4) In such a case the court may amend the term of imprisonment or detention fixed in respect of the confiscation order under section 139(2) of the Sentencing Act.
(5) If the effect of section 12 is to increase the maximum period applicable in relation to a confiscation order under section 139(4) of the Sentencing Act, on the application of the appropriate person the Crown Court may amend the term of imprisonment or detention fixed in respect of the order under section 139(2) of that Act.
(6) The appropriate person is—
(a) the Director, if he was appointed as the enforcement authority for the order under section 34;
(b) the prosecutor, in any other case.
(1) The Crown Court may exercise the powers conferred by section 41 if any of the following conditions is satisfied.
(2) The first condition is that—
(a) a criminal investigation has been started in England and Wales with regard to an offence, and
(b) there is reasonable cause to believe that the alleged offender has benefited from his criminal conduct.
(3) The second condition is that—
(a) proceedings for an offence have been started in England and Wales and not concluded, and
(b) there is reasonable cause to believe that the defendant has benefited from his criminal conduct.
(4) The third condition is that—
(a) an application by the prosecutor or the Director has been made under section 19, 20, 27 or 28 and not concluded, or the court believes that such an application is to be made, and
(b) there is reasonable cause to believe that the defendant has benefited from his criminal conduct.
(5) The fourth condition is that—
(a) an application by the prosecutor or the Director has been made under section 21 and not concluded, or the court believes that such an application is to be made, and
(b) there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the defendant’s benefit exceeds the relevant amount (as defined in that section).
(6) The fifth condition is that—
(a) an application by the prosecutor or the Director has been made under section 22 and not concluded, or the court believes that such an application is to be made, and
(b) there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the available amount exceeds the relevant amount (as defined in that section).
(7) The second condition is not satisfied if the court believes that—
(a) there has been undue delay in continuing the proceedings, or
(b) the prosecutor does not intend to proceed.
(8) If an application mentioned in the third, fourth or fifth condition has been made the condition is not satisfied if the court believes that—
(a) there has been undue delay in continuing the application, or
(b) the prosecutor or the Director (as the case may be) does not intend to proceed.
(9) If the first condition is satisfied—
(a) references in this Part to the defendant are to the alleged offender;
(b) references in this Part to the prosecutor are to the person the court believes is to have conduct of any proceedings for the offence;
(c) section 77(9) has effect as if proceedings for the offence had been started against the defendant when the investigation was started.
(1) If any condition set out in section 40 is satisfied the Crown Court may make an order (a restraint order) prohibiting any specified person from dealing with any realisable property held by him.
(2) A restraint order may provide that it applies—
(a) to all realisable property held by the specified person whether or not the property is described in the order;
(b) to realisable property transferred to the specified person after the order is made.
(3) A restraint order may be made subject to exceptions, and an exception may in particular—
(a) make provision for reasonable living expenses and reasonable legal expenses;
(b) make provision for the purpose of enabling any person to carry on any trade, business, profession or occupation;
(c) be made subject to conditions.
(4) But an exception to a restraint order must not make provision for any legal expenses which—
(a) relate to an offence which falls within subsection (5), and
(b) are incurred by the defendant or by a recipient of a tainted gift.
(5) These offences fall within this subsection—
(a) the offence mentioned in section 40(2) or (3), if the first or second condition (as the case may be) is satisfied;
(b) the offence (or any of the offences) concerned, if the third, fourth or fifth condition is satisfied.
(6) Subsection (7) applies if—
(a) a court makes a restraint order, and
(b) the applicant for the order applies to the court to proceed under subsection (7) (whether as part of the application for the restraint order or at any time afterwards).
(7) The court may make such order as it believes is appropriate for the purpose of ensuring that the restraint order is effective.
(8) A restraint order does not affect property for the time being subject to a charge under any of these provisions—
(a) section 9 of the Drug Trafficking Offences Act 1986 (c. 32);
(b) section 78 of the Criminal Justice Act 1988 (c. 33);
(c) Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));
(d) section 27 of the Drug Trafficking Act 1994 (c. 37);
(e) Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).
(9) Dealing with property includes removing it from England and Wales.
(1) A restraint order—
(a) may be made only on an application by an applicant falling within subsection (2);
(b) may be made on an ex parte application to a judge in chambers.
(2) These applicants fall within this subsection—
(a) the prosecutor;
(b) the Director;
(c) an accredited financial investigator.
(3) An application to discharge or vary a restraint order or an order under section 41(7) may be made to the Crown Court by—
(a) the person who applied for the order;
(b) any person affected by the order.
(4) Subsections (5) to (7) apply to an application under subsection (3).
(5) The court—
(a) may discharge the order;
(b) may vary the order.
(6) If the condition in section 40 which was satisfied was that proceedings were started or an application was made, the court must discharge the order on the conclusion of the proceedings or of the application (as the case may be).
(7) If the condition in section 40 which was satisfied was that an investigation was started or an application was to be made, the court must discharge the order if within a reasonable time proceedings for the offence are not started or the application is not made (as the case may be).
(1) If on an application for a restraint order the court decides not to make one, the person who applied for the order may appeal to the Court of Appeal against the decision.
(2) If an application is made under section 42(3) in relation to a restraint order or an order under section 41(7) the following persons may appeal to the Court of Appeal in respect of the Crown Court’s decision on the application—
(a) the person who applied for the order;
(b) any person affected by the order.
(3) On an appeal under subsection (1) or (2) the Court of Appeal may—
(a) confirm the decision, or
(b) make such order as it believes is appropriate.
(1) An appeal lies to the House of Lords from a decision of the Court of Appeal on an appeal under section 43.
(2) An appeal under this section lies at the instance of any person who was a party to the proceedings before the Court of Appeal.
(3) On an appeal under this section the House of Lords may—
(a) confirm the decision of the Court of Appeal, or
(b) make such order as it believes is appropriate.
(1) If a restraint order is in force a constable or a customs officer may seize any realisable property to which it applies to prevent its removal from England and Wales.
(2) Property seized under subsection (1) must be dealt with in accordance with the directions of the court which made the order.
(1) Evidence must not be excluded in restraint proceedings on the ground that it is hearsay (of whatever degree).
(2) Sections 2 to 4 of the Civil Evidence Act 1995 (c. 38) apply in relation to restraint proceedings as those sections apply in relation to civil proceedings.
(3) Restraint proceedings are proceedings—
(a) for a restraint order;
(b) for the discharge or variation of a restraint order;
(c) on an appeal under section 43 or 44.
(4) Hearsay is a statement which is made otherwise than by a person while giving oral evidence in the proceedings and which is tendered as evidence of the matters stated.
(5) Nothing in this section affects the admissibility of evidence which is admissible apart from this section.
(1) The registration Acts—
(a) apply in relation to restraint orders as they apply in relation to orders which affect land and are made by the court for the purpose of enforcing judgments or recognisances;
(b) apply in relation to applications for restraint orders as they apply in relation to other pending land actions.
(2) The registration Acts are—
(a) the Land Registration Act 1925 (c. 21);
(b) the Land Charges Act 1972 (c. 61);
(c) the Land Registration Act 2002 (c. 9).
(3) But no notice may be entered in the register of title under the Land Registration Act 2002 in respect of a restraint order.
(4) The person applying for a restraint order must 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) the application relates, or
(b) a restraint order made in pursuance of the application relates.
(1) Subsection (2) applies if—
(a) the Crown Court makes a restraint order, and
(b) the applicant for the restraint order applies to the court to proceed under subsection (2) (whether as part of the application for the restraint order or at any time afterwards).
(2) The Crown Court may by order appoint a receiver in respect of any realisable property to which the restraint order applies.
(1) If the court appoints a receiver under section 48 it may act under this section on the application of the person who applied for the restraint order.
(2) The court may by order confer on the receiver the following powers in relation to any realisable property to which the restraint order applies—
(a) power to take possession of the property;
(b) power to manage or otherwise deal with the property;
(c) power to start, carry on or defend any legal proceedings in respect of the property;
(d) power to realise so much of the property as is necessary to meet the receiver’s remuneration and expenses.
(3) The court may by order confer on the receiver power to enter any premises in England and Wales and to do any of the following—
(a) search for or inspect anything authorised by the court;
(b) make or obtain a copy, photograph or other record of anything so authorised;
(c) remove anything which the receiver is required or authorised to take possession of in pursuance of an order of the court.
(4) The court may by order authorise the receiver to do any of the following for the purpose of the exercise of his functions—
(a) hold property;
(b) enter into contracts;
(c) sue and be sued;
(d) employ agents;
(e) execute powers of attorney, deeds or other instruments;
(f) take any other steps the court thinks appropriate.
(5) The court may order any person who has possession of realisable property to which the restraint order applies to give possession of it to the receiver.
(6) The court—
(a) may order a person holding an interest in realisable property to which the restraint order applies to make to the receiver such payment as the court specifies in respect of a beneficial interest held by the defendant or the recipient of a tainted gift;
(b) may (on the payment being made) by order transfer, grant or extinguish any interest in the property.
(7) Subsections (2), (5) and (6) do not apply to property for the time being subject to a charge under any of these provisions—
(a) section 9 of the Drug Trafficking Offences Act 1986 (c. 32);
(b) section 78 of the Criminal Justice Act 1988 (c. 33);
(c) Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));
(d) section 27 of the Drug Trafficking Act 1994 (c. 37);
(e) Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).
(8) The court must not—
(a) confer the power mentioned in subsection (2)(b) or (d) in respect of property, or
(b) exercise the power conferred on it by subsection (6) in respect of property,
unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.
(9) The court may order that a power conferred by an order under this section is subject to such conditions and exceptions as it specifies.
(10) Managing or otherwise dealing with property includes—
(a) selling the property or any part of it or interest in it;
(b) carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;
(c) incurring capital expenditure in respect of the property.
(1) This section applies if—
(a) a confiscation order is made,
(b) it is not satisfied, and
(c) it is not subject to appeal.
(2) On the application of the prosecutor the Crown Court may by order appoint a receiver in respect of realisable property.
(1) If the court appoints a receiver under section 50 it may act under this section on the application of the prosecutor.
(2) The court may by order confer on the receiver the following powers in relation to the realisable property—
(a) power to take possession of the property;
(b) power to manage or otherwise deal with the property;
(c) power to realise the property, in such manner as the court may specify;
(d) power to start, carry on or defend any legal proceedings in respect of the property.