Proceeds of Crime Act 2002 (c. 29)

(The document as of February, 2008)

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(a) a court has made a confiscation order,

(b) a justices' chief executive applies to the Crown Court for the discharge of the order, and

(2) In such a case the court must calculate the available amount, and in doing so it must apply section 9 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).

25 Small amount outstanding: discharge of order

(1) This section applies if--

(a) a court has made a confiscation order,

(b) a justices' chief executive 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).

26 Information

(1) This section applies if--

(a) the court proceeds under section 6 in pursuance of section 19 or 20, or

(b) the prosecutor or the Director applies under section 21.

(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 16 applies accordingly (with appropriate modifications where the prosecutor or the Director applies under section 21);

(d) section 18 applies as it applies in the circumstances mentioned in section 18(1).

Defendant absconds

27 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,

(b) he is committed to the Crown Court for sentence in respect of an offence or offences under section 3, 4 or 6 of the Sentencing Act, or

(c) he is committed to the Crown Court in respect of an offence or offences under section 70 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 6 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 6 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 6 is entitled to appear before the court and make representations;

(b) the court must not make an order under section 6 unless the prosecutor or the Director (as the case may be) has taken reasonable steps to contact the defendant;

(d) sections 10, 16(4), 17 and 18 must be ignored;

(e) sections 19, 20 and 21 must be ignored while the defendant is still an absconder.

(6) Once the defendant ceases to be an absconder section 19 has effect as if subsection (1)(a) read--

" (a) at a time when the first condition in section 27 was satisfied the court did not proceed under section 6,. "

(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 19 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,. "

28 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 6 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 6 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 6 is entitled to appear before the court and make representations;

(b) the court must not make an order under section 6 unless the prosecutor or the Director (as the case may be) has taken reasonable steps to contact the defendant;

(d) sections 10, 16(4) and 17 to 20 must be ignored;

(e) section 21 must be ignored while the defendant is still an absconder.

(6) Once the defendant has ceased to be an absconder section 21 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 6 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 6 does not apply so far as that conviction is concerned.

29 Variation of order

(1) This section applies if--

(a) the court makes a confiscation order under section 6 as applied by section 28,

(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 28(2)(a), or

(b) if there are two or more offences and the convictions were on different dates, the date of the latest.

(4) But in a case where section 28(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.

30 Discharge of order

(1) Subsection (2) applies if--

(a) the court makes a confiscation order under section 6 as applied by section 28,

(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 6 as applied by section 28,

(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 28(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

31 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 19, 20, 27 or 28.

32 Court's powers on appeal

(1) On an appeal under section 31(1) the Court of Appeal may confirm, quash or vary the confiscation order.

(2) On an appeal under section 31(2) the Court of Appeal may confirm the decision, or if it believes the decision was wrong it may--

(a) itself proceed under section 6 (ignoring subsections (1) to (3)), or

(b) direct the Crown Court to proceed afresh under section 6.

(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 13(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 9.

(5) If the Court of Appeal proceeds under section 6 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 6 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 section 130 of the Sentencing Act (compensation orders)--

(a) the court must have regard to it, and

(b) section 13(5) and (6) above do not apply.

(8) Section 8(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 10--

(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 26 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.

33 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 31.

(2) An appeal under this section lies at the instance of--

(a) the defendant or the prosecutor (if the prosecutor appealed under section 31);

(b) the defendant or the Director (if the Director appealed under section 31).

(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 6 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 6 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 6 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 section 130 of the Sentencing Act (compensation orders)--

(a) the Crown Court must have regard to it, and

(b) section 13(5) and (6) above do not apply.

(10) Section 8(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 10--

(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 26 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

34 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 6 after being asked to do so by the Director;

(b) the court proceeded under section 6 by virtue of an application by the Director under section 19, 20, 27 or 28;

(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

35 Director not appointed as enforcement authority

(1) This section applies if a court--

(a) makes a confiscation order, and

(b) does not appoint the Director as the enforcement authority for the order.

(2) Sections 139(2) to (4) and (9) and 140(1) to (4) of the Sentencing Act (functions of court as to fines and enforcing fines) apply as if the amount ordered to be paid were a fine imposed on the defendant by the court making the confiscation order.

(3) In the application of Part 3 of the Magistrates' Courts Act 1980 (c. 43) to an amount payable under a confiscation order--

(a) ignore section 75 of that Act (power to dispense with immediate payment);

(b) such an amount is not a sum adjudged to be paid by a conviction for the purposes of section 81 (enforcement of fines imposed on young offenders) or a fine for the purposes of section 85 (remission of fines) of that Act;

36 Director appointed as enforcement authority

(1) This section applies if a court--

(a) makes a confiscation order, and

(b) appoints the Director as the enforcement authority for the order.

(2) Section 139(2) to (4) and (9) of the Sentencing Act (functions of court as to fines) applies as if the amount ordered to be paid were a fine imposed on the defendant by the court making the confiscation order.

37 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 detention 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 139(2) of the Sentencing Act 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.

(8) Subsections (9) and (10) apply if--

(a) the defendant has been committed to prison or detention in pursuance of a warrant issued under subsection (5), and

(b) a payment is made in respect of some or all of the amount remaining to be paid under the confiscation order.

(9) If the payment is for the whole amount remaining to be paid the defendant must be released unless he is in custody for another reason.

(10) If the payment is for less than that amount, the period of commitment is reduced so that it bears to the term fixed under section 139(2) of the Sentencing Act the same proportion as the amount remaining to be paid bears to the amount ordered to be paid.

38 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 under section 108 of the Sentencing Act (detention of persons aged 18 to 20 for default) 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 in a young offender institution, 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 suspended under section 118(1) of the Sentencing Act which has not taken effect at the time the warrant is issued;

(b) in the case of a sentence of imprisonment passed with an order under section 47(1) of the Criminal Law Act 1977 (c. 45) (sentences of imprisonment partly served and partly suspended) any part of the sentence which the defendant has not at that time been required to serve in prison;

(c) any term of imprisonment or detention fixed under section 139(2) of the Sentencing Act (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.

39 Reconsideration etc: variation of prison term

(1) Subsection (2) applies if--

(a) a court varies a confiscation order under section 21, 22, 23, 29, 32 or 33,

(b) the effect of the variation is to vary the maximum period applicable in relation to the order under section 139(4) of the Sentencing Act, 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 139(2) of the Sentencing 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 139(2) of the Sentencing 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 139(2) of the Sentencing Act.

(5) If the effect of section 12 is to increase the maximum period applicable in relation to a confiscation order under section 139(4) of the Sentencing 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 139(2) of that Act.

(6) The appropriate person is--

(a) the Director, if he was appointed as the enforcement authority for the order under section 34;

(b) the prosecutor, in any other case.

Restraint orders

40 Conditions for exercise of powers

(1) The Crown Court may exercise the powers conferred by section 41 if any of the following conditions is satisfied.

(2) The first condition is that--

(a) a criminal investigation has been started in England and Wales 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 England and Wales and not concluded, and

(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 19, 20, 27 or 28 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 21 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 22 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--

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