PART 2 continued
(1) A confiscation order is satisfied when no amount is due under it.
(2) A confiscation order is subject to appeal until there is no further possibility of an appeal on which the order could be varied or quashed; and for this purpose any power to grant leave to appeal out of time must be ignored.
(1) A reference to the offence (or offences) concerned must be construed in accordance with section 6(9).
(2) A criminal investigation is an investigation which police officers or other persons have a duty to conduct with a view to it being ascertained whether a person should be charged with an offence.
(3) A defendant is a person against whom proceedings for an offence have been started (whether or not he has been convicted).
(4) A reference to sentencing the defendant for an offence includes a reference to dealing with him otherwise in respect of the offence.
(5) The Sentencing Act is the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6).
(6) The following paragraphs apply to references to orders—
(a) a confiscation order is an order under section 6;
(b) a restraint order is an order under section 41.
(7) Sections 75 to 87 and this section apply for the purposes of this Part.
(1) An appeal to the Court of Appeal under this Part lies only with the leave of that Court.
(2) Subject to rules of court made under section 53(1) of the Supreme Court Act 1981 (c. 54) (distribution of business between civil and criminal divisions) the criminal division of the Court of Appeal is the division—
(a) to which an appeal to that Court under this Part is to lie, and
(b) which is to exercise that Court’s jurisdiction under this Part.
(3) In relation to appeals to the Court of Appeal under this Part, the Secretary of State may make an order containing provision corresponding to any provision in the Criminal Appeal Act 1968 (c. 19) (subject to any specified modifications).
(1) Section 33(3) of the Criminal Appeal Act 1968 (limitation on appeal from criminal division of the Court of Appeal) does not prevent an appeal to the House of Lords under this Part.
(2) In relation to appeals to the House of Lords under this Part, the Secretary of State may make an order containing provision corresponding to any provision in the Criminal Appeal Act 1968 (subject to any specified modifications).
In relation to—
(a) proceedings under this Part, or
(b) receivers appointed under this Part,
Crown Court Rules may make provision corresponding to provision in Civil Procedure Rules.
(1) The court must act under this section where the following three conditions are satisfied.
(2) The first condition is that an accused falls within either of the following paragraphs—
(a) he is convicted of an offence or offences, whether in solemn or summary proceedings, or
(b) in the case of summary proceedings in respect of an offence (without proceeding to conviction) an order is made discharging him absolutely.
(3) The second condition is that the prosecutor asks the court to act under this section.
(4) The third condition is that the court decides to order some disposal in respect of the accused; and an absolute discharge is a disposal for the purpose of this subsection.
(5) If the court acts under this section it must proceed as follows—
(a) it must decide whether the accused has a criminal lifestyle;
(b) if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct;
(c) if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct.
(6) If the court decides under subsection (5)(b) or (c) that the accused has benefited from the conduct referred to—
(a) it must decide the recoverable amount, and
(b) it must make an order (a confiscation order) requiring him to pay that amount.
(7) But the court must treat the duty in subsection (6) as a power if it believes that any victim of the conduct has at any time started or intends to start proceedings against the accused in respect of loss, injury or damage sustained in connection with the conduct.
(8) Before making an order under this section the court must take into account any representations made to it by any person whom the court thinks is likely to be affected by the order.
(9) The standard of proof required to decide any question arising under subsection (5) or (6) is the balance of probabilities.
(10) The first condition is not satisfied if the accused is unlawfully at large (but section 111 may apply).
(11) For the purposes of any appeal or review, an order under this section is a sentence.
(12) References in this Part to the offence (or offences) concerned are to the offence (or offences) mentioned in subsection (2).
(13) In this section and sections 93 to 118 “the court” means the High Court of Justiciary or the sheriff.
(1) The recoverable amount for the purposes of section 92 is an amount equal to the accused’s benefit from the conduct concerned.
(2) But if the accused shows that the available amount is less than that benefit the recoverable amount is—
(a) the available amount, or
(b) a nominal amount, if the available amount is nil.
(3) But if section 92(7) applies the recoverable amount is such amount as—
(a) the court believes is just, but
(b) does not exceed the amount found under subsection (1) or (2) (as the case may be).
(4) In calculating the accused’s benefit from the conduct concerned for the purposes of subsection (1), any property in respect of which—
(a) a recovery order is in force under section 266, or
(b) a forfeiture order is in force under section 298(2),
must be ignored.
(5) If the court decides the available amount, it must include in the confiscation order a statement of its findings as to the matters relevant for deciding that amount.
(1) If the court is acting under section 92 this section applies for the purpose of—
(a) deciding whether the accused has benefited from conduct, and
(b) deciding his benefit from the conduct.
(2) The court must take account of—
(a) conduct occurring up to the time it makes its decision;
(b) property obtained up to that time.
(3) Subsection (4) applies if—
(a) the conduct concerned is general criminal conduct,
(b) a confiscation order mentioned in subsection (5) has at an earlier time been made against the accused, and
(c) his benefit for the purposes of that order was benefit from his general criminal conduct.
(4) His benefit found at the time the last confiscation order mentioned in subsection (3)(c) was made against him must be taken for the purposes of this section to be his benefit from his general criminal conduct at that time.
(5) If the conduct concerned is general criminal conduct the court must deduct the aggregate of the following amounts—
(a) the amount ordered to be paid under each confiscation order previously made against the accused;
(b) the amount ordered to be paid under each confiscation order previously made against him under—
(i) the Drug Trafficking Offences Act 1986 (c. 32);
(ii) Part 1 of the Criminal Justice (Scotland) Act 1987 (c. 41);
(iii) Part 6 of the Criminal Justice Act 1988 (c. 33);
(iv) the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I.17));
(v) Part 1 of the Drug Trafficking Act 1994 (c. 37);
(vi) Part 1 of the Proceeds of Crime (Scotland) Act 1995 (c. 43);
(vii) the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/ 1299 (N.I.9)); or
(viii) Part 2 or 4 of this Act.
(6) But subsection (5) does not apply to an amount which has been taken into account for the purposes of a deduction under that subsection on any earlier occasion.
(7) The reference to general criminal conduct in the case of a confiscation order made under any of the provisions listed in subsection (5)(b) is a reference to conduct in respect of which a court is required or entitled to make one or more assumptions for the purpose of assessing a person’s benefit from the conduct.
(1) For the purposes of deciding the recoverable amount, the available amount is the aggregate of—
(a) the total of the values (at the time the confiscation order is made) of all the free property then held by the accused minus the total amount payable in pursuance of obligations which then have priority, and
(b) the total of the values (at that time) of all tainted gifts.
(2) An obligation has priority if—
(a) it is an obligation of the accused to pay an amount due in respect of a fine or other order of a court which was imposed or made on conviction for an offence and at any time before the confiscation order is made, or
(b) it is an obligation of the accused to pay a sum which would be—
(i) a preferred debt if the accused’s estate were sequestrated on the date of the confiscation order, or
(ii) a preferential debt if his winding up were ordered on that date.
(3) In subsection (2)—
“preferred debt” has the meaning given by section 51(2) of the Bankruptcy (Scotland) Act 1985 (c. 66);
“preferential debt” has the meaning given by section 386 of the Insolvency Act 1986 (c. 45).
(1) Where the court decides under section 92 that the accused has a criminal lifestyle it must make the following four assumptions for the purpose of—
(a) deciding whether he has benefited from his general criminal conduct, and
(b) deciding his benefit from the conduct.
(2) The first assumption is that any property transferred to the accused at any time after the relevant day was obtained by him—
(a) as a result of his general criminal conduct, and
(b) at the earliest time he appears to have held it.
(3) The second assumption is that any property held by the accused at any time after the date of conviction was obtained by him—
(a) as a result of his general criminal conduct, and
(b) at the earliest time he appears to have held it.
(4) The third assumption is that any expenditure incurred by the accused at any time after the relevant day was met from property obtained by him as a result of his general criminal conduct.
(5) The fourth assumption is that, for the purpose of valuing any property obtained (or assumed to have been obtained) by the accused, he obtained it free of any other interests in it.
(6) But the court must not make any of those assumptions in relation to particular property or expenditure if—
(a) the assumption is shown to be incorrect, or
(b) there would be a serious risk of injustice if the assumption were made.
(7) If the court does not make one or more of those assumptions it must state its reasons.
(8) 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 instituted against the accused, or
(b) if there are two or more offences and proceedings for them were instituted on different days, the earliest of those days.
(9) But if a confiscation order mentioned in section 94(3)(c) has been made against the accused at any time during the period mentioned in subsection (8)—
(a) the relevant day is the day when the accused’s benefit was calculated for the purposes of the last such confiscation order;
(b) the second assumption does not apply to any property which was held by him on or before the relevant day.
(10) The date of conviction is—
(a) the date on which the accused was convicted of the offence concerned, or
(b) if there are two or more offences and the convictions are on different dates, the date of the latest.
(1) If the court decides to make a confiscation order it must act as mentioned in subsections (2) and (4) in respect of the offence or offences concerned.
(2) The court must take account of the confiscation order before—
(a) it imposes a fine on the accused, or
(b) it makes an order falling within subsection (3).
(3) These orders fall within this subsection—
(a) an order involving payment by the accused, other than a compensation order under section 249 of the Procedure Act (compensation orders);
(b) an order under section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders);
(c) an order under Part 2 of the Proceeds of Crime (Scotland) Act 1995 (c. 43) (forfeiture orders);
(d) an order under section 23 of the Terrorism Act 2000 (c. 11) (forfeiture orders).
(4) Subject to subsection (2), the court must leave the confiscation order out of account in deciding the appropriate sentence for the accused.
(5) Subsection (6) applies if—
(a) a court makes both a confiscation order and a compensation order under section 249 of the Procedure Act against the same person in the same proceedings, and
(b) the court believes he will not have sufficient means to satisfy both the orders in full.
(6) In such a case the court must direct that so much of the compensation as it specifies is to be paid out of any sums recovered under the confiscation order; and the amount it specifies must be the amount it believes will not be recoverable because of the insufficiency of the person’s means.
(1) This section applies where a confiscation order has been made in relation to any person and the prosecutor has not satisfied the court that the person’s interest in his family home has been acquired as a benefit from his criminal conduct.
(2) Where this section applies, then, before the administrator disposes of any right or interest in the person’s family home he shall—
(a) obtain the relevant consent; or
(b) where he is unable to do so, apply to the court for authority to carry out the disposal.
(3) On an application being made to it under subsection (2)(b), the court, after having regard to all the circumstances of the case including—
(a) the needs and financial resources of the spouse or former spouse of the person concerned;
(b) the needs and financial resources of any child of the family;
(c) the length of the period during which the family home has been used as a residence by any of the persons referred to in paragraph (a) or (b),
may refuse to grant the application or may postpone the granting of the application for such period (not exceeding 12 months) as it may consider reasonable in the circumstances or may grant the application subject to such conditions as it may prescribe.
(4) Subsection (3) shall apply—
(a) to an action for division and sale of the family home of the person concerned; or
(b) to an action for the purpose of obtaining vacant possession of that home,
brought by the administrator as it applies to an application under subsection (2)(b) and, for the purposes of this subsection, any reference in subsection (3) to the granting of the application shall be construed as a reference to the granting of decree in the action.
(5) In this section—
“family home”, in relation to any person (in this subsection referred to as “the relevant person”) means any property in which the relevant person has or had (whether alone or in common with any other person) a right or interest, being property which is occupied as a residence by the relevant person and his or her spouse or by the relevant person’s spouse or former spouse (in any case with or without a child of the family) or by the relevant person with a child of the family;
“child of the family” includes any child or grandchild of either the relevant person or his or her spouse or former spouse, and any person who has been treated by either the relevant person or his or her spouse or former spouse as if he or she were a child of the relevant person, spouse or former spouse, whatever the age of such a child, grandchild or person may be; and
“relevant consent” means in relation to the disposal of any right or interest in a family home—
in a case where the family home is occupied by the spouse or former spouse of the relevant person, the consent of the spouse or, as the case may be, of the former spouse, whether or not the family home is also occupied by the relevant person;
where paragraph (a) does not apply, in a case where the family home is occupied by the relevant person with a child of the family, the consent of the relevant person.
(1) The court may—
(a) proceed under section 92 before it sentences the accused for the offence (or any of the offences concerned), or
(b) postpone proceedings under section 92 for a specified period.
(2) A period of postponement may be extended.
(3) A period of postponement (including one as extended) must not end after the permitted period ends.
(4) But subsection (3) does not apply if there are exceptional circumstances or if the accused has failed to comply with an order under section 102(1).
(5) The permitted period is the period of two years starting with the date of conviction.
(6) But if—
(a) the accused appeals against his conviction for the offence (or any of the offences) concerned, and
(b) the period of three months (starting with the day when the appeal is determined or otherwise disposed of) ends after the period found under subsection (5),
the permitted period is that period of three months.
(7) A postponement or extension may be made—
(a) on application by the accused;
(b) on application by the prosecutor;
(c) by the court of its own motion.
(8) If—
(a) proceedings are postponed for a period, and
(b) an application to extend the period is made before it ends,
the application may be granted even after the period ends.
(9) The date of conviction is—
(a) the date on which the accused was convicted of the offence concerned, or
(b) if there are two or more offences and the convictions were on different dates, the date of the latest.
(10) A confiscation order must not be quashed only on the ground that there was a defect or omission in the procedure connected with the application for or the granting of a postponement.
(11) But subsection (10) does not apply if before it made the confiscation order the court has—
(a) imposed a fine on the accused;
(b) made an order falling within section 97(3);
(c) made an order under section 249 of the Procedure Act.
(1) If the court postpones proceedings under section 92 it may proceed to sentence the accused for the offence (or any of the offences) concerned.
(2) Subsection (1) is without prejudice to sections 201 and 202 of the Procedure Act.
(3) In sentencing the accused for the offence (or any of the offences) concerned in the postponement period the court must not—
(a) impose a fine on him,
(b) make an order falling within section 97(3), or
(c) make an order for the payment of compensation under section 249 of the Procedure Act.
(4) If the court sentences the accused for the offence (or any of the offences) concerned in the postponement period, after that period ends it may vary the sentence by—
(a) imposing a fine on him,
(b) making an order falling within section 97(3), or
(c) making an order for the payment of compensation under section 249 of the Procedure Act.
(5) But the court may proceed under subsection (4) only within the period of 28 days which starts with the last day of the postponement period.
(6) Where the court postpones proceedings under section 92 following conviction on indictment, section 109(1) of the Procedure Act (intimation of intention to appeal against conviction or conviction and sentence) has effect as if the reference to the final determination of the proceedings were a reference to the relevant day.
(7) Despite subsection (6), the accused may appeal under section 106 of the Procedure Act against any confiscation order made, or any other sentence passed, after the end of the postponement period, in respect of the conviction.
(8) Where the court postpones proceedings under section 92 following conviction on complaint—
(a) section 176(1) of the Procedure Act (stated case: manner and time of appeal) has effect in relation to an appeal under section 175(2)(a) or (d) as if the reference to the final determination of the proceedings were a reference to the relevant day, and
(b) the draft stated case in such an appeal must be prepared and issued within 3 weeks of the relevant day.
(9) Despite subsection (8), the accused may appeal under section 175(2)(b), and the prosecutor may appeal under section 175(3)(b), of the Procedure Act against any confiscation order made, or any other sentence passed, after the end of the postponement period, in respect of the conviction.
(10) The relevant day is—
(a) in the case of an appeal against conviction where the court has sentenced the accused under subsection (1), the day on which the postponement period commenced;
(b) in any other case, the day on which sentence is passed in open court.
(11) The postponement period is the period for which proceedings under section 92 are postponed.
(1) When the court is proceeding under section 92 the prosecutor must, within such period as the court may order, give the court a statement of information.
(2) If the prosecutor believes the accused has a criminal lifestyle the statement of information is a statement of matters the prosecutor believes are relevant in connection with deciding these issues—
(a) whether the accused has a criminal lifestyle;
(b) whether he has benefited from his general criminal conduct;
(c) his benefit from the conduct.
(3) A statement under subsection (2) must include information the prosecutor believes is relevant—
(a) in connection with the making by the court of a required assumption under section 96;
(b) for the purpose of enabling the court to decide if the circumstances are such that it must not make such an assumption.
(4) If the prosecutor does not believe the accused has a criminal lifestyle the statement of information is a statement of matters the prosecutor believes are relevant in connection with deciding these issues—
(a) whether the accused has benefited from his particular criminal conduct;
(b) his benefit from the conduct.
(5) If the prosecutor gives the court a statement of information—
(a) he may at any time give the court a further statement of information;
(b) he must give the court a further statement of information if it orders him to do so, and he must give it within the period the court orders.
(6) If the court makes an order under this section it may at any time vary it by making another one.
(1) When the prosecutor gives the court a statement of information and the court is satisfied that he has served a copy on the accused, the court shall order the accused—
(a) to indicate the extent to which he accepts each allegation in the statement, and
(b) so far as he does not accept such an allegation, to give particulars of any matters he proposes to rely on,
within the period it orders.
(2) Where by virtue of section 99 the court postpones proceedings under section 92, the period ordered by the court under subsection (1) shall be a period ending not less than six months before the end of the permitted period mentioned in section 99.
(3) If the accused accepts to any extent an allegation in a statement of information the court may treat his acceptance as conclusive of the matters to which it relates for the purpose of deciding the issues referred to in section 101(2) or (4) (as the case may be).
(4) If the accused fails in any respect to comply with an order under subsection (1) he may be treated for the purposes of subsection (3) as accepting every allegation in the statement of information apart from—
(a) any allegation in respect of which he has complied with the requirement;
(b) any allegation that he has benefited from his general or particular criminal conduct.
(5) Where—
(a) an allegation in a statement of information is challenged by the accused, or
(b) the matters referred to in subsection (1)(b) are challenged by the prosecutor,
the court must consider the matters being challenged at a hearing.
(6) The judge presiding at the hearing may, if he is not the trial judge and he considers it in the interests of justice to do so, adjourn the hearing to a date when the trial judge is available.
(7) If the court makes an order under this section it may at any time vary it by making another one.
(8) No acceptance under this section that the accused has benefited from conduct is admissible in evidence in proceedings for an offence.
(1) For the purpose of obtaining information to help it in carrying out its functions under section 92 the court may at any time order the accused to give it information specified in the order.
(2) An order under this section may require all or a specified part of the information to be given in a specified manner and before a specified date.
(3) If the accused fails without reasonable excuse to comply with an order under this section the court may draw such inference as it thinks appropriate.
(4) Subsection (3) does not affect any power of the court to deal with the accused in respect of a failure to comply with an order under this section.
(5) If the prosecutor accepts to any extent an allegation made by the accused—
(a) in giving information required by an order under this section, or
(b) in any other statement given to the court in relation to any matter relevant to deciding the available amount under section 95,
the court may treat the acceptance as conclusive of the matters to which it relates.
(6) For the purposes of this section an allegation may be accepted in a manner ordered by the court.
(7) If the court makes an order under this section it may at any time vary it by making another order.
(8) No information given under this section which amounts to an admission by the accused that he has benefited from criminal conduct is admissible in evidence in proceedings for an offence.