Office of Public Sector Information
PART 4 continued
(3) On an appeal from a decision of the Court of Appeal to confirm, vary or make a confiscation order the House of Lords may confirm, quash or vary the order.
(4) On an appeal from a decision of the Court of Appeal to confirm the decision of the Crown Court not to make a confiscation order or from a decision of the Court of Appeal to quash a confiscation order the House of Lords may—
(a) confirm the decision, or
(b) direct the Crown Court to proceed afresh under section 156 if it believes the decision was wrong.
(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 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.
(7) If the Crown Court proceeds afresh under section 156 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 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.
(9) 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 Crown Court must have regard to it, and
(b) section 163(5) and (6) above do not apply.
(10) Section 158(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 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.
(12) Section 176 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 156 after being asked to do so by the Director;
(b) the court proceeded under section 156 by virtue of an application by the Director under section 169, 170, 177 or 178;
(c) the court proceeded under section 156 as a result of an appeal by the Director under section 181(2) or 183;
(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 makes a confiscation order.
(2) Section 35(1)(c), (2), (4) and (5) of the Criminal Justice Act (Northern Ireland) 1945 (c. 15) (functions of court as to fines) apply as if the amount ordered to be paid were a fine imposed on the defendant by the Crown Court.
(3) An amount payable under a confiscation order is not a fine, costs, damages or compensation for the purposes of Article 35 of the Criminal Justice (Northern Ireland) Order 1998 (S.I. 1998/1504 (N.I. 9)) (parent or guardian to pay fine etc. instead of child).
(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) 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 to detention under section 5 of the Treatment of Offenders Act (Northern Ireland) 1968 (c. 29 (N.I.)) 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 35(1) of the Criminal Justice Act (Northern Ireland) 1945 (c. 15 (N.I.)) 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.
(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 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 under section 5 of the Treatment of Offenders Act (Northern Ireland) 1968 (c. 29 (N.I.)), 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 of imprisonment or order for detention suspended under section 18 of the Treatment of Offenders Act (Northern Ireland) 1968 which has not taken effect at the time the warrant is issued;
(b) any term of imprisonment or detention fixed under section 35(1)(c) of the Criminal Justice Act (Northern Ireland) 1945 (c. 15 (N.I.)) (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 171, 172, 173, 179, 182 or 183,
(b) the effect of the variation is to vary the maximum period applicable in relation to the order under section 35(2) of the Criminal Justice Act (Northern Ireland) 1945 (c. 15 (N.I.)), 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 35(1)(c) of that 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 35(1)(c) of that 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 35(1)(c) of that Act.
(5) If the effect of section 162 is to increase the maximum period applicable in relation to a confiscation order under section 35(2) of that 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 35(1)(c) of that Act.
(6) The appropriate person is—
(a) the Director, if he was appointed as the enforcement authority for the order under section 184;
(b) the prosecutor, in any other case.
(1) The High Court may exercise the powers conferred by section 190 if any of the following conditions is satisfied.
(2) The first condition is that—
(a) a criminal investigation has been started in Northern Ireland 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 Northern Ireland and not concluded,
(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 169, 170, 177 or 178 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 171 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 172 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 225(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 189 is satisfied the High 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 may 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 189(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) the 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 Northern Ireland.
(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 190(7) may be made to the High 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 189 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 189 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 191(3) in relation to a restraint order or an order under section 190(7) the following persons may appeal to the Court of Appeal in respect of the High 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 192.
(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 Northern Ireland.
(2) Property seized under subsection (1) must be dealt with in accordance with the directions of the court which made the order.
(1) The person applying for a restraint order must be treated for the purposes of section 66 of the Land Registration Act (Northern Ireland) 1970 (c. 18 (N.I.)) (cautions) 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.
(2) Upon being served with a copy of a restraint order, the Registrar shall, in respect of any registered land to which a restraint order or an application for a restraint order relates, make an entry inhibiting any dealing with the land without the consent of the High Court.
(3) Subsections (2) and (4) of section 67 of the Land Registration Act (Northern Ireland) 1970 (inhibitions) shall apply to an entry made under subsection (2) as they apply to an entry made on the application of any person interested in the registered land under subsection (1) of that section.
(4) Where a restraint order has been protected by an entry registered under the Land Registration Act (Northern Ireland) 1970 or the Registration of Deeds Acts, an order discharging the restraint order may require that the entry be vacated.
(5) In this section—
“Registrar” and “entry” have the same meanings as in the Land Registration Act (Northern Ireland) 1970; and
“Registration of Deeds Acts” has the meaning given by section 46(2) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)).
(1) Subsection (2) applies if—
(a) the High 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 High 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 196 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 Northern Ireland 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 198 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.
(3) The court may by order confer on the receiver power to enter any premises in Northern Ireland 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 give possession of it to the receiver.
(6) The court—
(a) may order a person holding an interest in realisable property 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 (c) 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.
Proceeds of Crime Act 2002