PART 2 continued
(1) Subsections (2) and (3) apply to—
(a) an application under section 41, 42, 48, 49 or 63;
(b) an appeal under section 43, 44, 65 or 66.
(2) An accredited financial investigator must not make such an application or bring such an appeal unless he falls within subsection (3).
(3) An accredited financial investigator falls within this subsection if he is one of the following or is authorised for the purposes of this section by one of the following—
(a) a police officer who is not below the rank of superintendent,
(b) a customs officer who is not below such grade as is designated by the Commissioners of Customs and Excise as equivalent to that rank,
(c) an accredited financial investigator who falls within a description specified in an order made for the purposes of this paragraph by the Secretary of State under section 453.
(4) If such an application is made or appeal brought by an accredited financial investigator any subsequent step in the application or appeal or any further application or appeal relating to the same matter may be taken, made or brought by a different accredited financial investigator who falls within subsection (3).
(5) If—
(a) an application for a restraint order is made by an accredited financial investigator, and
(b) a court is required under section 58(6) to give the applicant for the order an opportunity to be heard,
the court may give the opportunity to a different accredited financial investigator who falls within subsection (3).
(1) This section applies to—
(a) the powers conferred on a court by sections 41 to 60 and sections 62 to 67;
(b) the powers of a receiver appointed under section 48, 50 or 52.
(2) The powers—
(a) must be exercised with a view to the value for the time being of realisable property being made available (by the property’s realisation) for satisfying any confiscation order that has been or may be made against the defendant;
(b) must be exercised, in a case where a confiscation order has not been made, with a view to securing that there is no diminution in the value of realisable property;
(c) must be exercised without taking account of any obligation of the defendant or a recipient of a tainted gift if the obligation conflicts with the object of satisfying any confiscation order that has been or may be made against the defendant;
(d) may be exercised in respect of a debt owed by the Crown.
(3) Subsection (2) has effect subject to the following rules—
(a) the powers must be exercised with a view to allowing a person other than the defendant or a recipient of a tainted gift to retain or recover the value of any interest held by him;
(b) in the case of realisable property held by a recipient of a tainted gift, the powers must be exercised with a view to realising no more than the value for the time being of the gift;
(c) in a case where a confiscation order has not been made against the defendant, property must not be sold if the court so orders under subsection (4).
(4) If on an application by the defendant, or by the recipient of a tainted gift, the court decides that property cannot be replaced it may order that it must not be sold.
(5) An order under subsection (4) may be revoked or varied.
(1) This section applies if—
(a) a defendant is convicted of an offence by a magistrates' court, and
(b) the prosecutor asks the court to commit the defendant to the Crown Court with a view to a confiscation order being considered under section 6.
(2) In such a case the magistrates' court—
(a) must commit the defendant to the Crown Court in respect of the offence, and
(b) may commit him to the Crown Court in respect of any other offence falling within subsection (3).
(3) An offence falls within this subsection if—
(a) the defendant has been convicted of it by the magistrates' court or any other court, and
(b) the magistrates' court has power to deal with him in respect of it.
(4) If a committal is made under this section in respect of an offence or offences—
(a) section 6 applies accordingly, and
(b) the committal operates as a committal of the defendant to be dealt with by the Crown Court in accordance with section 71.
(5) If a committal is made under this section in respect of an offence for which (apart from this section) the magistrates' court could have committed the defendant for sentence under section 3(2) of the Sentencing Act (offences triable either way) the court must state whether it would have done so.
(6) A committal under this section may be in custody or on bail.
(1) If a defendant is committed to the Crown Court under section 70 in respect of an offence or offences, this section applies (whether or not the court proceeds under section 6).
(2) In the case of an offence in respect of which the magistrates' court has stated under section 70(5) that it would have committed the defendant for sentence, the Crown Court—
(a) must inquire into the circumstances of the case, and
(b) may deal with the defendant in any way in which it could deal with him if he had just been convicted of the offence on indictment before it.
(3) In the case of any other offence the Crown Court—
(a) must inquire into the circumstances of the case, and
(b) may deal with the defendant in any way in which the magistrates' court could deal with him if it had just convicted him of the offence.
(1) If the following three conditions are satisfied the Crown Court may order the payment of such compensation as it believes is just.
(2) The first condition is satisfied if a criminal investigation has been started with regard to an offence and proceedings are not started for the offence.
(3) The first condition is also satisfied if proceedings for an offence are started against a person and—
(a) they do not result in his conviction for the offence, or
(b) he is convicted of the offence but the conviction is quashed or he is pardoned in respect of it.
(4) If subsection (2) applies the second condition is that—
(a) in the criminal investigation there has been a serious default by a person mentioned in subsection (9), and
(b) the investigation would not have continued if the default had not occurred.
(5) If subsection (3) applies the second condition is that—
(a) in the criminal investigation with regard to the offence or in its prosecution there has been a serious default by a person who is mentioned in subsection (9), and
(b) the proceedings would not have been started or continued if the default had not occurred.
(6) The third condition is that an application is made under this section by a person who held realisable property and has suffered loss in consequence of anything done in relation to it by or in pursuance of an order under this Part.
(7) The offence referred to in subsection (2) may be one of a number of offences with regard to which the investigation is started.
(8) The offence referred to in subsection (3) may be one of a number of offences for which the proceedings are started.
(9) Compensation under this section is payable to the applicant and—
(a) if the person in default was or was acting as a member of a police force, the compensation is payable out of the police fund from which the expenses of that force are met;
(b) if the person in default was a member of the Crown Prosecution Service or was acting on its behalf, the compensation is payable by the Director of Public Prosecutions;
(c) if the person in default was a member of the Serious Fraud Office, the compensation is payable by the Director of that Office;
(d) if the person in default was a customs officer, the compensation is payable by the Commissioners of Customs and Excise;
(e) if the person in default was an officer of the Commissioners of Inland Revenue, the compensation is payable by those Commissioners.
(1) This section applies if—
(a) the court varies a confiscation order under section 29 or discharges one under section 30, and
(b) an application is made to the Crown Court by a person who held realisable property and has suffered loss as a result of the making of the order.
(2) The court may order the payment of such compensation as it believes is just.
(3) Compensation under this section is payable—
(a) to the applicant;
(b) by the Lord Chancellor.
(1) This section applies if—
(a) any of the conditions in section 40 is satisfied,
(b) the prosecutor or the Director believes that realisable property is situated in a country or territory outside the United Kingdom (the receiving country), and
(c) the prosecutor or the Director (as the case may be) sends a request for assistance to the Secretary of State with a view to it being forwarded under this section.
(2) In a case where no confiscation order has been made, a request for assistance is a request to the government of the receiving country to secure that any person is prohibited from dealing with realisable property.
(3) In a case where a confiscation order has been made and has not been satisfied, discharged or quashed, a request for assistance is a request to the government of the receiving country to secure that—
(a) any person is prohibited from dealing with realisable property;
(b) realisable property is realised and the proceeds are applied in accordance with the law of the receiving country.
(4) No request for assistance may be made for the purposes of this section in a case where a confiscation order has been made and has been satisfied, discharged or quashed.
(5) If the Secretary of State believes it is appropriate to do so he may forward the request for assistance to the government of the receiving country.
(6) If property is realised in pursuance of a request under subsection (3) the amount ordered to be paid under the confiscation order must be taken to be reduced by an amount equal to the proceeds of realisation.
(7) A certificate purporting to be issued by or on behalf of the requested government is admissible as evidence of the facts it states if it states—
(a) that property has been realised in pursuance of a request under subsection (3),
(b) the date of realisation, and
(c) the proceeds of realisation.
(8) If the proceeds of realisation made in pursuance of a request under subsection (3) are expressed in a currency other than sterling, they must be taken to be the sterling equivalent calculated in accordance with the rate of exchange prevailing at the end of the day of realisation.
(1) A defendant has a criminal lifestyle if (and only if) the following condition is satisfied.
(2) The condition is that the offence (or any of the offences) concerned satisfies any of these tests—
(a) it is specified in Schedule 2;
(b) it constitutes conduct forming part of a course of criminal activity;
(c) it is an offence committed over a period of at least six months and the defendant has benefited from the conduct which constitutes the offence.
(3) Conduct forms part of a course of criminal activity if the defendant has benefited from the conduct and—
(a) in the proceedings in which he was convicted he was convicted of three or more other offences, each of three or more of them constituting conduct from which he has benefited, or
(b) in the period of six years ending with the day when those proceedings were started (or, if there is more than one such day, the earliest day) he was convicted on at least two separate occasions of an offence constituting conduct from which he has benefited.
(4) But an offence does not satisfy the test in subsection (2)(b) or (c) unless the defendant obtains relevant benefit of not less than £5000.
(5) Relevant benefit for the purposes of subsection (2)(b) is—
(a) benefit from conduct which constitutes the offence;
(b) benefit from any other conduct which forms part of the course of criminal activity and which constitutes an offence of which the defendant has been convicted;
(c) benefit from conduct which constitutes an offence which has been or will be taken into consideration by the court in sentencing the defendant for an offence mentioned in paragraph (a) or (b).
(6) Relevant benefit for the purposes of subsection (2)(c) is—
(a) benefit from conduct which constitutes the offence;
(b) benefit from conduct which constitutes an offence which has been or will be taken into consideration by the court in sentencing the defendant for the offence mentioned in paragraph (a).
(7) The Secretary of State may by order amend Schedule 2.
(8) The Secretary of State may by order vary the amount for the time being specified in subsection (4).
(1) Criminal conduct is conduct which—
(a) constitutes an offence in England and Wales, or
(b) would constitute such an offence if it occurred in England and Wales.
(2) General criminal conduct of the defendant is all his criminal conduct, and it is immaterial—
(a) whether conduct occurred before or after the passing of this Act;
(b) whether property constituting a benefit from conduct was obtained before or after the passing of this Act.
(3) Particular criminal conduct of the defendant is all his criminal conduct which falls within the following paragraphs—
(a) conduct which constitutes the offence or offences concerned;
(b) conduct which constitutes offences of which he was convicted in the same proceedings as those in which he was convicted of the offence or offences concerned;
(c) conduct which constitutes offences which the court will be taking into consideration in deciding his sentence for the offence or offences concerned.
(4) A person benefits from conduct if he obtains property as a result of or in connection with the conduct.
(5) If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage.
(6) References to property or a pecuniary advantage obtained in connection with conduct include references to property or a pecuniary advantage obtained both in that connection and some other.
(7) If a person benefits from conduct his benefit is the value of the property obtained.
(1) Subsections (2) and (3) apply if—
(a) no court has made a decision as to whether the defendant has a criminal lifestyle, or
(b) a court has decided that the defendant has a criminal lifestyle.
(2) A gift is tainted if it was made by the defendant at any time after the relevant day.
(3) A gift is also tainted if it was made by the defendant at any time and was of property—
(a) which was obtained by the defendant as a result of or in connection with his general criminal conduct, or
(b) which (in whole or part and whether directly or indirectly) represented in the defendant’s hands property obtained by him as a result of or in connection with his general criminal conduct.
(4) Subsection (5) applies if a court has decided that the defendant does not have a criminal lifestyle.
(5) A gift is tainted if it was made by the defendant at any time after—
(a) the date on which the offence concerned was committed, or
(b) if his particular criminal conduct consists of two or more offences and they were committed on different dates, the date of the earliest.
(6) For the purposes of subsection (5) an offence which is a continuing offence is committed on the first occasion when it is committed.
(7) For the purposes of subsection (5) the defendant’s particular criminal conduct includes any conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.
(8) A gift may be a tainted gift whether it was made before or after the passing of this Act.
(9) The relevant day is the first day of the period of six years ending with—
(a) the day when proceedings for the offence concerned were started against the defendant, or
(b) if there are two or more offences and proceedings for them were started on different days, the earliest of those days.
(1) If the defendant transfers property to another person for a consideration whose value is significantly less than the value of the property at the time of the transfer, he is to be treated as making a gift.
(2) If subsection (1) applies the property given is to be treated as such share in the property transferred as is represented by the fraction—
(a) whose numerator is the difference between the two values mentioned in subsection (1), and
(b) whose denominator is the value of the property at the time of the transfer.
(3) References to a recipient of a tainted gift are to a person to whom the defendant has made the gift.
(1) This section applies for the purpose of deciding the value at any time of property then held by a person.
(2) Its value is the market value of the property at that time.
(3) But if at that time another person holds an interest in the property its value, in relation to the person mentioned in subsection (1), is the market value of his interest at that time, ignoring any charging order under a provision listed in subsection (4).
(4) The provisions are—
(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)).
(5) This section has effect subject to sections 80 and 81.
(1) This section applies for the purpose of deciding the value of property obtained by a person as a result of or in connection with his criminal conduct; and the material time is the time the court makes its decision.
(2) The value of the property at the material time is the greater of the following—
(a) the value of the property (at the time the person obtained it) adjusted to take account of later changes in the value of money;
(b) the value (at the material time) of the property found under subsection (3).
(3) The property found under this subsection is as follows—
(a) if the person holds the property obtained, the property found under this subsection is that property;
(b) if he holds no part of the property obtained, the property found under this subsection is any property which directly or indirectly represents it in his hands;
(c) if he holds part of the property obtained, the property found under this subsection is that part and any property which directly or indirectly represents the other part in his hands.
(4) The references in subsection (2)(a) and (b) to the value are to the value found in accordance with section 79.
(1) The value at any time (the material time) of a tainted gift is the greater of the following—
(a) the value (at the time of the gift) of the property given, adjusted to take account of later changes in the value of money;
(b) the value (at the material time) of the property found under subsection (2).
(2) The property found under this subsection is as follows—
(a) if the recipient holds the property given, the property found under this subsection is that property;
(b) if the recipient holds no part of the property given, the property found under this subsection is any property which directly or indirectly represents it in his hands;
(c) if the recipient holds part of the property given, the property found under this subsection is that part and any property which directly or indirectly represents the other part in his hands.
(3) The references in subsection (1)(a) and (b) to the value are to the value found in accordance with section 79.
Property is free unless an order is in force in respect of it under any of these provisions—
(a) section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders);
(b) Article 11 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (deprivation orders);
(c) Part 2 of the Proceeds of Crime (Scotland) Act 1995 (c. 43) (forfeiture of property used in crime);
(d) section 143 of the Sentencing Act (deprivation orders);
(e) section 23 or 111 of the Terrorism Act 2000 (c. 11) (forfeiture orders);
(f) section 246, 266, 295(2) or 298(2) of this Act.
Realisable property is—
(a) any free property held by the defendant;
(b) any free property held by the recipient of a tainted gift.
(1) Property is all property wherever situated and includes—
(a) money;
(b) all forms of real or personal property;
(c) things in action and other intangible or incorporeal property.
(2) The following rules apply in relation to property—
(a) property is held by a person if he holds an interest in it;
(b) property is obtained by a person if he obtains an interest in it;
(c) property is transferred by one person to another if the first one transfers or grants an interest in it to the second;
(d) references to property held by a person include references to property vested in his trustee in bankruptcy, permanent or interim trustee (within the meaning of the Bankruptcy (Scotland) Act 1985 (c. 66)) or liquidator;
(e) references to an interest held by a person beneficially in property include references to an interest which would be held by him beneficially if the property were not so vested;
(f) references to an interest, in relation to land in England and Wales or Northern Ireland, are to any legal estate or equitable interest or power;
(g) references to an interest, in relation to land in Scotland, are to any estate, interest, servitude or other heritable right in or over land, including a heritable security;
(h) references to an interest, in relation to property other than land, include references to a right (including a right to possession).
(1) Proceedings for an offence are started—
(a) when a justice of the peace issues a summons or warrant under section 1 of the Magistrates' Courts Act 1980 (c. 43) in respect of the offence;
(b) when a person is charged with the offence after being taken into custody without a warrant;
(c) when a bill of indictment is preferred under section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 (c. 36) in a case falling within subsection (2)(b) of that section (preferment by Court of Appeal or High Court judge).
(2) If more than one time is found under subsection (1) in relation to proceedings they are started at the earliest of them.
(3) If the defendant is acquitted on all counts in proceedings for an offence, the proceedings are concluded when he is acquitted.
(4) If the defendant is convicted in proceedings for an offence and the conviction is quashed or the defendant is pardoned before a confiscation order is made, the proceedings are concluded when the conviction is quashed or the defendant is pardoned.
(5) If a confiscation order is made against the defendant in proceedings for an offence (whether the order is made by the Crown Court or the Court of Appeal) the proceedings are concluded—
(a) when the order is satisfied or discharged, or
(b) when the order is quashed and there is no further possibility of an appeal against the decision to quash the order.
(6) If the defendant is convicted in proceedings for an offence but the Crown Court decides not to make a confiscation order against him, the following rules apply—
(a) if an application for leave to appeal under section 31(2) is refused, the proceedings are concluded when the decision to refuse is made;
(b) if the time for applying for leave to appeal under section 31(2) expires without an application being made, the proceedings are concluded when the time expires;
(c) if on appeal under section 31(2) the Court of Appeal confirms the Crown Court’s decision, and an application for leave to appeal under section 33 is refused, the proceedings are concluded when the decision to refuse is made;
(d) if on appeal under section 31(2) the Court of Appeal confirms the Crown Court’s decision, and the time for applying for leave to appeal under section 33 expires without an application being made, the proceedings are concluded when the time expires;
(e) if on appeal under section 31(2) the Court of Appeal confirms the Crown Court’s decision, and on appeal under section 33 the House of Lords confirms the Court of Appeal’s decision, the proceedings are concluded when the House of Lords confirms the decision;
(f) if on appeal under section 31(2) the Court of Appeal directs the Crown Court to reconsider the case, and on reconsideration the Crown Court decides not to make a confiscation order against the defendant, the proceedings are concluded when the Crown Court makes that decision;
(g) if on appeal under section 33 the House of Lords directs the Crown Court to reconsider the case, and on reconsideration the Crown Court decides not to make a confiscation order against the defendant, the proceedings are concluded when the Crown Court makes that decision.
(7) In applying subsection (6) any power to extend the time for making an application for leave to appeal must be ignored.
(8) In applying subsection (6) the fact that a court may decide on a later occasion to make a confiscation order against the defendant must be ignored.
(1) An application under section 19, 20, 27 or 28 is concluded—
(a) in a case where the court decides not to make a confiscation order against the defendant, when it makes the decision;
(b) in a case where a confiscation order is made against him as a result of the application, when the order is satisfied or discharged, or when the order is quashed and there is no further possibility of an appeal against the decision to quash the order;
(c) in a case where the application is withdrawn, when the person who made the application notifies the withdrawal to the court to which the application was made.
(2) An application under section 21 or 22 is concluded—
(a) in a case where the court decides not to vary the confiscation order concerned, when it makes the decision;
(b) in a case where the court varies the confiscation order as a result of the application, when the order is satisfied or discharged, or when the order is quashed and there is no further possibility of an appeal against the decision to quash the order;
(c) in a case where the application is withdrawn, when the person who made the application notifies the withdrawal to the court to which the application was made.