Proceeds of Crime Act 2002 (c. 29)

(The document as of February, 2008)

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(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).

172 Order made: reconsideration of available amount

(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;

(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;

(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.

173 Inadequacy of available amount: variation of order

(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).

174 Inadequacy of available amount: discharge of order

(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

(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).

175 Small amount outstanding: discharge of order

(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

(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).

176 Information

(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);

(d) section 168 applies as it applies in the circumstances mentioned in section 168(1).

Defendant absconds

177 Defendant convicted or committed

(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;

(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,. "

178 Defendant neither convicted nor acquitted

(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

(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;

(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.

179 Variation of order

(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,

(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.

180 Discharge of order

(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

(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,

(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.

Appeals

181 Appeal by prosecutor or Director

(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.

182 Court's powers on appeal

(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.

183 Appeal to House of Lords

(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).

(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;

(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.

Enforcement authority

184 Enforcement authority

(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;

(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.

Enforcement as fines etc

185 Enforcement as fines etc

(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).

186 Director's application for enforcement

(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;

(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.

187 Provisions about imprisonment or detention

(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.

188 Reconsideration etc: variation of prison term

(1) Subsection (2) applies if--

(a) a court varies a confiscation order under section 171, 172, 173, 179, 182 or 183,

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