Office of Public Sector Information
PART 4 continued
(1) This section applies if the following two conditions are satisfied.
(2) The first condition is that in proceeding under section 156 the court has decided that—
(a) the defendant has a criminal lifestyle but has not benefited from his general criminal conduct, or
(b) the defendant does not have a criminal lifestyle and has not benefited from his particular criminal conduct.
(3) If the court proceeded under section 156 because the Director asked it to, the second condition is that—
(a) the Director has evidence which was not available to him when the court decided that the defendant had not benefited from his general or particular criminal conduct,
(b) before the end of the period of six years starting with the date of conviction the Director applies to the Crown Court to consider the evidence, and
(c) after considering the evidence the court concludes that it would have decided that the defendant had benefited from his general or particular criminal conduct (as the case may be) if the evidence had been available to it.
(4) If the court proceeded under section 156 because the prosecutor asked it to or because it believed it was appropriate for it to do so, the second condition is that—
(a) there is evidence which was not available to the prosecutor when the court decided that the defendant had not benefited from his general or particular criminal conduct,
(b) before the end of the period of six years starting with the date of conviction the prosecutor or the Director applies to the Crown Court to consider the evidence, and
(c) after considering the evidence the court concludes that it would have decided that the defendant had benefited from his general or particular criminal conduct (as the case may be) if the evidence had been available to it.
(5) If this section applies the court—
(a) must make a fresh decision under section 156(4)(b) or (c) whether the defendant has benefited from his general or particular criminal conduct (as the case may be);
(b) may make a confiscation order under that section.
(6) Subsections (7) to (12) below apply if the court proceeds under section 156 in pursuance of this section.
(7) If the court has already sentenced the defendant for the offence (or any of the offences) concerned, section 156 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.
(8) Section 158(2) does not apply, and the rules applying instead are that the court must—
(a) take account of conduct occurring before the date of the original decision that the defendant had not benefited from his general or particular criminal conduct;
(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.
(9) In section 160—
(a) the first and second assumptions do not apply with regard to property first held by the defendant on or after the date of the original decision that the defendant had not benefited from his general or particular criminal conduct;
(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.
(10) The recoverable amount for the purposes of section 156 is such amount as—
(a) the court believes is just, but
(b) does not exceed the amount found under section 157.
(11) In arriving at the just amount the court must have regard in particular to—
(a) the amount found under section 157;
(b) any fine imposed on the defendant in respect of the offence (or any of the offences) concerned;
(c) any order which falls within section 163(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by the court in deciding what is the free property held by him for the purposes of section 159;
(d) any order which has been made against him in respect of the offence (or any of the offences) concerned under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (compensation orders).
(12) If an order for the payment of compensation under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 has been made against the defendant in respect of the offence or offences concerned, section 163(5) and (6) above do not apply.
(13) The date of conviction is the date found by applying section 169(10).
(1) This section applies if—
(a) a court has made a confiscation order,
(b) there is evidence which was not available to the prosecutor or the Director at the relevant time,
(c) the prosecutor or the Director believes that if the court were to find the amount of the defendant’s benefit in pursuance of this section it would exceed the relevant amount,
(d) before the end of the period of six years starting with the date of conviction the prosecutor or the Director applies to the Crown Court to consider the evidence, and
(e) after considering the evidence the court believes it is appropriate for it to proceed under this section.
(2) The court must make a new calculation of the defendant’s benefit from the conduct concerned, and when it does so subsections (3) to (6) below apply.
(3) If a court has already sentenced the defendant for the offence (or any of the offences) concerned section 156 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.
(4) Section 158(2) does not apply, and the rules applying instead are that the court must—
(a) take account of conduct occurring up to the time it decided the defendant’s benefit for the purposes of the confiscation order;
(b) take account of property obtained up to that time;
(c) take account of property obtained after that time if it was obtained as a result of or in connection with conduct occurring before that time.
(5) In applying section 158(5) the confiscation order must be ignored.
(6) In section 160—
(a) the first and second assumptions do not apply with regard to property first held by the defendant after the time the court decided his benefit for the purposes of the confiscation order;
(b) the third assumption does not apply with regard to expenditure incurred by him after that time;
(c) the fourth assumption does not apply with regard to property obtained (or assumed to have been obtained) by him after that time.
(7) If the amount found under the new calculation of the defendant’s benefit exceeds the relevant amount the court—
(a) must make a new calculation of the recoverable amount for the purposes of section 156, and
(b) if it exceeds the amount required to be paid under the confiscation order, may vary the order by substituting for the amount required to be paid such amount as it believes is just.
(8) In applying subsection (7)(a) the court must—
(a) take the new calculation of the defendant’s benefit;
(b) apply section 159 as if references to the time the confiscation order is made were to the time of the new calculation of the recoverable amount and as if references to the date of the confiscation order were to the date of that new calculation.
(9) In applying subsection (7)(b) the court must have regard in particular to—
(a) any fine imposed on the defendant for the offence (or any of the offences) concerned;
(b) any order which falls within section 163(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by the court in deciding what is the free property held by him for the purposes of section 159;
(c) any order which has been made against him in respect of the offence (or any of the offences) concerned under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (compensation orders).
(10) But in applying subsection (7)(b) the court must not have regard to an order falling within subsection (9)(c) if a court has made a direction under section 163(6).
(11) In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.
(12) The relevant time is—
(a) when the court calculated the defendant’s benefit for the purposes of the confiscation order, if this section has not applied previously;
(b) when the court last calculated the defendant’s benefit in pursuance of this section, if this section has applied previously.
(13) The relevant amount is—
(a) the amount found as the defendant’s benefit for the purposes of the confiscation order, if this section has not applied previously;
(b) the amount last found as the defendant’s benefit in pursuance of this section, if this section has applied previously.
(14) The date of conviction is the date found by applying section 169(10).
(1) This section applies if—
(a) a court has made a confiscation order,
(b) the amount required to be paid was the amount found under section 157(2), and
(c) an applicant falling within subsection (2) applies to the Crown Court to make a new calculation of the available amount.
(2) These applicants fall within this subsection—
(a) the prosecutor;
(b) the Director;
(c) a receiver appointed under section 198 or 200.
(3) In a case where this section applies the court must make the new calculation, and in doing so it must apply section 159 as if references to the time the confiscation order is made were to the time of the new calculation and as if references to the date of the confiscation order were to the date of the new calculation.
(4) If the amount found under the new calculation exceeds the relevant amount the court may vary the order by substituting for the amount required to be paid such amount as—
(a) it believes is just, but
(b) does not exceed the amount found as the defendant’s benefit from the conduct concerned.
(5) In deciding what is just the court must have regard in particular to—
(a) any fine imposed on the defendant for the offence (or any of the offences) concerned;
(b) any order which falls within section 163(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by the court in deciding what is the free property held by him for the purposes of section 159;
(c) any order which has been made against him in respect of the offence (or any of the offences) concerned under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (compensation orders).
(6) But in deciding what is just the court must not have regard to an order falling within subsection (5)(c) if a court has made a direction under section 163(6).
(7) In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.
(8) The relevant amount is—
(a) the amount found as the available amount for the purposes of the confiscation order, if this section has not applied previously;
(b) the amount last found as the available amount in pursuance of this section, if this section has applied previously.
(9) The amount found as the defendant’s benefit from the conduct concerned is—
(a) the amount so found when the confiscation order was made, or
(b) if one or more new calculations of the defendant’s benefit have been made under section 171 the amount found on the occasion of the last such calculation.
(1) This section applies if—
(a) a court has made a confiscation order, and
(b) the defendant, or a receiver appointed under section 198 or 200, applies to the Crown Court to vary the order under this section.
(2) In such a case the court must calculate the available amount, and in doing so it must apply section 159 as if references to the time the confiscation order is made were to the time of the calculation and as if references to the date of the confiscation order were to the date of the calculation.
(3) If the court finds that the available amount (as so calculated) is inadequate for the payment of any amount remaining to be paid under the confiscation order it may vary the order by substituting for the amount required to be paid such smaller amount as the court believes is just.
(4) If a person has been adjudged bankrupt or his estate has been sequestrated, or if an order for the winding up of a company has been made, the court must take into account the extent to which realisable property held by that person or that company may be distributed among creditors.
(5) The court may disregard any inadequacy which it believes is attributable (wholly or partly) to anything done by the defendant for the purpose of preserving property held by the recipient of a tainted gift from any risk of realisation under this Part.
(6) In subsection (4) “company” means any company which may be wound up under the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)) or the Insolvency Act 1986 (c. 45).
(1) This section applies if—
(a) a court has made a confiscation order,
(b) the prosecutor applies to the Crown Court for the discharge of the order, and
(c) the amount remaining to be paid under the order is less than £1,000.
(2) In such a case the court must calculate the available amount, and in doing so it must apply section 159 as if references to the time the confiscation order is made were to the time of the calculation and as if references to the date of the confiscation order were to the date of the calculation.
(3) If the court—
(a) finds that the available amount (as so calculated) is inadequate to meet the amount remaining to be paid, and
(b) is satisfied that the inadequacy is due wholly to a specified reason or a combination of specified reasons,
it may discharge the confiscation order.
(4) The specified reasons are—
(a) in a case where any of the realisable property consists of money in a currency other than sterling, that fluctuations in currency exchange rates have occurred;
(b) any reason specified by the Secretary of State by order.
(5) The Secretary of State may by order vary the amount for the time being specified in subsection (1)(c).
(1) This section applies if—
(a) a court has made a confiscation order,
(b) a chief clerk applies to the Crown Court for the discharge of the order, and
(c) the amount remaining to be paid under the order is £50 or less.
(2) In such a case the court may discharge the order.
(3) The Secretary of State may by order vary the amount for the time being specified in subsection (1)(c).
(1) This section applies if—
(a) the court proceeds under section 156 in pursuance of section 169 or 170, or
(b) the prosecutor or the Director applies under section 171.
(2) In such a case—
(a) the prosecutor or the Director (as the case may be) must give the court a statement of information within the period the court orders;
(b) section 166 applies accordingly (with appropriate modifications where the prosecutor or the Director applies under section 171);
(c) section 167 applies accordingly;
(d) section 168 applies as it applies in the circumstances mentioned in section 168(1).
(1) This section applies if the following two conditions are satisfied.
(2) The first condition is that a defendant absconds after—
(a) he is convicted of an offence or offences in proceedings before the Crown Court, or
(b) he is committed to the Crown Court in respect of an offence or offences under section 218 below (committal with a view to a confiscation order being considered).
(3) The second condition is that—
(a) the prosecutor or the Director applies to the Crown Court to proceed under this section, and
(b) the court believes it is appropriate for it to do so.
(4) If this section applies the court must proceed under section 156 in the same way as it must proceed if the two conditions there mentioned are satisfied; but this is subject to subsection (5).
(5) If the court proceeds under section 156 as applied by this section, this Part has effect with these modifications—
(a) any person the court believes is likely to be affected by an order under section 156 is entitled to appear before the court and make representations;
(b) the court must not make an order under section 156 unless the prosecutor or the Director (as the case may be) has taken reasonable steps to contact the defendant;
(c) section 156(9) applies as if the reference to subsection (2) were to subsection (2) of this section;
(d) sections 160, 166(4), 167 and 168 must be ignored;
(e) sections 169, 170 and 171 must be ignored while the defendant is still an absconder.
(6) Once the defendant has ceased to be an absconder section 169 has effect as if subsection (1)(a) read—
“(a) at a time when the first condition in section 177 was satisfied the court did not proceed under section 156,.”
(7) If the court does not believe it is appropriate for it to proceed under this section, once the defendant ceases to be an absconder section 169 has effect as if subsection (1)(b) read—
“(b) there is evidence which was not available to the prosecutor or the Director on the relevant date,.”
(1) This section applies if the following two conditions are satisfied.
(2) The first condition is that—
(a) proceedings for an offence or offences are started against a defendant but are not concluded,
(b) he absconds, and
(c) the period of two years (starting with the day the court believes he absconded) has ended.
(3) The second condition is that—
(a) the prosecutor or the Director applies to the Crown Court to proceed under this section, and
(b) the court believes it is appropriate for it to do so.
(4) If this section applies the court must proceed under section 156 in the same way as it must proceed if the two conditions there mentioned are satisfied; but this is subject to subsection (5).
(5) If the court proceeds under section 156 as applied by this section, this Part has effect with these modifications—
(a) any person the court believes is likely to be affected by an order under section 156 is entitled to appear before the court and make representations;
(b) the court must not make an order under section 156 unless the prosecutor or the Director (as the case may be) has taken reasonable steps to contact the defendant;
(c) section 156(9) applies as if the reference to subsection (2) were to subsection (2) of this section;
(d) sections 160, 166(4) and 167 to 170 must be ignored;
(e) section 171 must be ignored while the defendant is still an absconder.
(6) Once the defendant has ceased to be an absconder section 171 has effect as if references to the date of conviction were to—
(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.
(7) If—
(a) the court makes an order under section 156 as applied by this section, and
(b) the defendant is later convicted in proceedings before the Crown Court of the offence (or any of the offences) concerned,
section 156 does not apply so far as that conviction is concerned.
(1) This section applies if—
(a) the court makes a confiscation order under section 156 as applied by section 178,
(b) the defendant ceases to be an absconder,
(c) he is convicted of an offence (or any of the offences) mentioned in section 178(2)(a),
(d) he believes that the amount required to be paid was too large (taking the circumstances prevailing when the amount was found for the purposes of the order), and
(e) before the end of the relevant period he applies to the Crown Court to consider the evidence on which his belief is based.
(2) If (after considering the evidence) the court concludes that the defendant’s belief is well founded—
(a) it must find the amount which should have been the amount required to be paid (taking the circumstances prevailing when the amount was found for the purposes of the order), and
(b) it may vary the order by substituting for the amount required to be paid such amount as it believes is just.
(3) The relevant period is the period of 28 days starting with—
(a) the date on which the defendant was convicted of the offence mentioned in section 178(2)(a), or
(b) if there are two or more offences and the the convictions were on different dates, the date of the latest.
(4) But in a case where section 178(2)(a) applies to more than one offence the court must not make an order under this section unless it is satisfied that there is no possibility of any further proceedings being taken or continued in relation to any such offence in respect of which the defendant has not been convicted.
(1) Subsection (2) applies if—
(a) the court makes a confiscation order under section 156 as applied by section 178,
(b) the defendant is later tried for the offence or offences concerned and acquitted on all counts, and
(c) he applies to the Crown Court to discharge the order.
(2) In such a case the court must discharge the order.
(3) Subsection (4) applies if—
(a) the court makes a confiscation order under section 156 as applied by section 178,
(b) the defendant ceases to be an absconder,
(c) subsection (1)(b) does not apply, and
(d) he applies to the Crown Court to discharge the order.
(4) In such a case the court may discharge the order if it finds that—
(a) there has been undue delay in continuing the proceedings mentioned in section 178(2), or
(b) the prosecutor does not intend to proceed with the prosecution.
(5) If the court discharges a confiscation order under this section it may make such a consequential or incidental order as it believes is appropriate.
(1) If the Crown Court makes a confiscation order the prosecutor or the Director may appeal to the Court of Appeal in respect of the order.
(2) If the Crown Court decides not to make a confiscation order the prosecutor or the Director may appeal to the Court of Appeal against the decision.
(3) Subsections (1) and (2) do not apply to an order or decision made by virtue of section 169, 170, 177 or 178.
(1) On an appeal under section 181(1) the Court of Appeal may confirm, quash or vary the confiscation order.
(2) On an appeal under section 181(2) the Court of Appeal may confirm the decision, or if it believes the decision was wrong it may—
(a) itself proceed under section 156 (ignoring subsections (1) to (3)), or
(b) direct the Crown Court to proceed afresh under section 156.
(3) In proceeding afresh in pursuance of this section the Crown Court must comply with any directions the Court of Appeal may make.
(4) If a court makes or varies a confiscation order under this section or 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 163(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 159.
(5) If the Court of Appeal proceeds under section 156 or the Crown Court proceeds afresh under that section in pursuance of a direction under this section subsections (6) to (10) apply.
(6) If a court has already sentenced the defendant for the offence (or any of the offences) concerned, section 156 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.
(7) If an order has been made against the defendant in respect of the offence (or any of the offences) concerned under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (compensation orders)—
(a) the court must have regard to it, and
(b) section 163(5) and (6) above do not apply.
(8) Section 158(2) does not apply, and the rules applying instead are that the 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.
(9) In section 160—
(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.
(10) Section 176 applies as it applies in the circumstances mentioned in subsection (1) of that section.
(11) The relevant date is the date on which the Crown Court decided not to make a confiscation order.
(1) An appeal lies to the House of Lords from a decision of the Court of Appeal on an appeal under section 181.
(2) An appeal under this section lies at the instance of—
(a) the defendant or the prosecutor (if the prosecutor appealed under section 181);
(b) the defendant or the Director (if the Director appealed under section 181).
Proceeds of Crime Act 2002