Proceeds of Crime Act 2002 (c. 29)

(The document as of February, 2008)

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(4) Before making a direction under subsection (3) the court must give persons who held (or hold) interests in the property concerned a reasonable opportunity to make representations to it.

(5) For the purposes of subsections (3) and (4) the property concerned is--

(a) the property represented by the proceeds mentioned in subsection (1)(a);

(b) the sums mentioned in subsection (1)(b).

(6) The receiver applies sums as mentioned in subsection (2)(c) by paying them to the appropriate justices' chief executive on account of the amount payable under the order.

(7) The appropriate justices' chief executive is the one for the magistrates' court responsible for enforcing the confiscation order as if the amount ordered to be paid were a fine.

55 Sums received by justices' chief executive

(1) This section applies if a justices' chief executive receives sums on account of the amount payable under a confiscation order (whether the sums are received under section 54 or otherwise).

(2) The chief executive's receipt of the sums reduces the amount payable under the order, but he must apply the sums received as follows.

(3) First he must apply them in payment of such expenses incurred by a person acting as an insolvency practitioner as--

(a) are payable under this subsection by virtue of section 432, but

(b) are not already paid under section 54(2)(a).

(4) If the justices' chief executive received the sums under section 54 he must next apply them--

(a) first, in payment of the remuneration and expenses of a receiver appointed under section 48, to the extent that they have not been met by virtue of the exercise by that receiver of a power conferred under section 49(2)(d);

(b) second, in payment of the remuneration and expenses of the receiver appointed under section 50.

(5) If a direction was made under section 13(6) for an amount of compensation to be paid out of sums recovered under the confiscation order, the justices' chief executive must next apply the sums in payment of that amount.

(6) If any amount remains after the justices' chief executive makes any payments required by the preceding provisions of this section, the amount must be treated for the purposes of section 60 of the Justices of the Peace Act 1997 (c. 25) (application of fines etc) as if it were a fine imposed by a magistrates' court.

(7) Subsection (4) does not apply if the receiver is a member of the staff of the Crown Prosecution Service or of the Commissioners of Customs and Excise; and it is immaterial whether he is a permanent or temporary member or he is on secondment from elsewhere.

56 Director's receivers

(1) This section applies to sums which are in the hands of a receiver appointed under section 52 if they are--

(a) the proceeds of the realisation of property under section 53;

(b) sums (other than those mentioned in paragraph (a)) in which the defendant holds an interest.

(2) The sums must be applied as follows--

(a) first, they must be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under this subsection by virtue of section 432;

(b) second, they must be applied in making any payments directed by the Crown Court;

(c) third, they must be applied on the defendant's behalf towards satisfaction of the confiscation order by being paid to the Director on account of the amount payable under it.

(3) If the amount payable under the confiscation order has been fully paid and any sums remain in the receiver's hands he must distribute them--

(a) among such persons who held (or hold) interests in the property concerned as the Crown Court directs, and

(b) in such proportions as it directs.

(4) Before making a direction under subsection (3) the court must give persons who held (or hold) interests in the property concerned a reasonable opportunity to make representations to it.

(5) For the purposes of subsections (3) and (4) the property concerned is--

(a) the property represented by the proceeds mentioned in subsection (1)(a);

(b) the sums mentioned in subsection (1)(b).

57 Sums received by Director

(1) This section applies if the Director receives sums on account of the amount payable under a confiscation order (whether the sums are received under section 56 or otherwise).

(2) The Director's receipt of the sums reduces the amount payable under the order, but he must apply the sums received as follows.

(3) First he must apply them in payment of such expenses incurred by a person acting as an insolvency practitioner as--

(a) are payable under this subsection by virtue of section 432, but

(b) are not already paid under section 56(2)(a).

(4) If the Director received the sums under section 56 he must next apply them--

(b) second, in payment of the remuneration and expenses of the receiver appointed under section 52.

(5) If a direction was made under section 13(6) for an amount of compensation to be paid out of sums recovered under the confiscation order, the Director must next apply the sums in payment of that amount.

(6) Subsection (4) does not apply if the receiver is a member of the staff of the Agency or a person providing services under arrangements made by the Director.

Restrictions

58 Restraint orders

(1) Subsections (2) to (4) apply if a court makes a restraint order.

(2) No distress may be levied against any realisable property to which the order applies except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

(3) If the order applies to a tenancy of any premises, no landlord or other person to whom rent is payable may exercise a right within subsection (4) except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

(4) A right is within this subsection if it is a right of forfeiture by peaceable re-entry in relation to the premises in respect of any failure by the tenant to comply with any term or condition of the tenancy.

(5) If a court in which proceedings are pending in respect of any property is satisfied that a restraint order has been applied for or made in respect of the property, the court may either stay the proceedings or allow them to continue on any terms it thinks fit.

(6) Before exercising any power conferred by subsection (5), the court must give an opportunity to be heard to--

(a) the applicant for the restraint order, and

(b) any receiver appointed in respect of the property under section 48, 50 or 52.

59 Enforcement receivers

(1) Subsections (2) to (4) apply if a court makes an order under section 50 appointing a receiver in respect of any realisable property.

(2) No distress may be levied against the property except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

(3) If the receiver is appointed in respect of a tenancy of any premises, no landlord or other person to whom rent is payable may exercise a right within subsection (4) except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

(5) If a court in which proceedings are pending in respect of any property is satisfied that an order under section 50 appointing a receiver in respect of the property has been applied for or made, the court may either stay the proceedings or allow them to continue on any terms it thinks fit.

(6) Before exercising any power conferred by subsection (5), the court must give an opportunity to be heard to--

(a) the prosecutor, and

(b) the receiver (if the order under section 50 has been made).

60 Director's receivers

(1) Subsections (2) to (4) apply if--

(a) the Crown Court has made an order under section 52 for the appointment of a receiver in respect of any realisable property, and

(b) the order has taken effect.

(2) No distress may be levied against the property except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

(3) If the order is for the appointment of a receiver in respect of a tenancy of any premises, no landlord or other person to whom rent is payable may exercise a right within subsection (4) except with the leave of the Crown Court and subject to any terms the Crown Court may impose.

(5) If a court (whether the Crown Court or any other court) in which proceedings are pending in respect of any property is satisfied that an order under section 52 for the appointment of a receiver in respect of the property has taken effect, the court may either stay the proceedings or allow them to continue on any terms it thinks fit.

(6) Before exercising any power conferred by subsection (5), the court must give an opportunity to be heard to--

(a) the Director, and

(b) the receiver.

Receivers: further provisions

61 Protection

If a receiver appointed under section 48, 50 or 52--

(a) takes action in relation to property which is not realisable property,

(b) would be entitled to take the action if it were realisable property, and

he is not liable to any person in respect of any loss or damage resulting from the action, except so far as the loss or damage is caused by his negligence.

62 Further applications

(1) This section applies to a receiver appointed under section 48, 50 or 52.

(2) The receiver may apply to the Crown Court for an order giving directions as to the exercise of his powers.

(3) The following persons may apply to the Crown Court--

(a) any person affected by action taken by the receiver;

(b) any person who may be affected by action the receiver proposes to take.

(4) On an application under this section the court may make such order as it believes is appropriate.

63 Discharge and variation

(1) The following persons may apply to the Crown Court to vary or discharge an order made under any of sections 48 to 53--

(a) the receiver;

(b) the person who applied for the order or (if the order was made under section 52 or 53) the Director;

(2) On an application under this section the court--

(a) may discharge the order;

(b) may vary the order.

(3) But in the case of an order under section 48 or 49--

(a) if the condition in section 40 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);

(b) if the condition 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).

64 Management receivers: discharge

(1) This section applies if--

(a) a receiver stands appointed under section 48 in respect of realisable property (the management receiver), and

(b) the court appoints a receiver under section 50 or makes an order for the appointment of a receiver under section 52.

(2) The court must order the management receiver to transfer to the other receiver all property held by the management receiver by virtue of the powers conferred on him by section 49.

(3) But in a case where the court makes an order under section 52 its order under subsection (2) above does not take effect until the order under section 52 takes effect.

(4) Subsection (2) does not apply to property which the management receiver holds by virtue of the exercise by him of his power under section 49(2)(d).

(5) If the management receiver complies with an order under subsection (2) he is discharged--

(a) from his appointment under section 48;

(b) from any obligation under this Act arising from his appointment.

(6) If this section applies the court may make such a consequential or incidental order as it believes is appropriate.

65 Appeal to Court of Appeal

(1) If on an application for an order under any of sections 48 to 51 or section 53 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 the court makes an order under any of sections 48 to 51 or section 53, the following persons may appeal to the Court of Appeal in respect of the court's decision--

(a) the person who applied for the order;

(b) any person affected by the order.

(3) If on an application for an order under section 62 the court decides not to make one, the person who applied for the order may appeal to the Court of Appeal against the decision.

(4) If the court makes an order under section 62, the following persons may appeal to the Court of Appeal in respect of the court's decision--

(a) the person who applied for the order;

(b) any person affected by the order;

(5) The following persons may appeal to the Court of Appeal against a decision of the court on an application under section 63--

(a) the person who applied for the order in respect of which the application was made or (if the order was made under section 52 or 53) the Director;

(b) any person affected by the court's decision;

(6) On an appeal under this section the Court of Appeal may--

(a) confirm the decision, or

(b) make such order as it believes is appropriate.

66 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 65.

(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.

Seized money

67 Seized money

(1) This section applies to money which--

(a) is held by a person, and

(b) is held in an account maintained by him with a bank or a building society.

(2) This section also applies to money which is held by a person and which--

(a) has been seized by a constable under section 19 of the Police and Criminal Evidence Act 1984 (c. 60) (general power of seizure etc), and

(b) is held in an account maintained by a police force with a bank or a building society.

(3) This section also applies to money which is held by a person and which--

(a) has been seized by a customs officer under section 19 of the 1984 Act as applied by order made under section 114(2) of that Act, and

(b) is held in an account maintained by the Commissioners of Customs and Excise with a bank or a building society.

(4) This section applies if the following conditions are satisfied--

(a) a restraint order has effect in relation to money to which this section applies;

(b) a confiscation order is made against the person by whom the money is held;

(d) a receiver has not been appointed under section 50 in relation to the money;

(e) any period allowed under section 11 for payment of the amount ordered to be paid under the confiscation order has ended.

(5) In such a case a magistrates' court may order the bank or building society to pay the money to the justices' chief executive for the court on account of the amount payable under the confiscation order.

(6) If a bank or building society fails to comply with an order under subsection (5)--

(a) the magistrates' court may order it to pay an amount not exceeding £5,000, and

(b) for the purposes of the Magistrates' Courts Act 1980 (c. 43) the sum is to be treated as adjudged to be paid by a conviction of the court.

(7) In order to take account of changes in the value of money the Secretary of State may by order substitute another sum for the sum for the time being specified in subsection (6)(a).

(8) For the purposes of this section--

(a) a bank is a deposit-taking business within the meaning of the Banking Act 1987 (c. 22);

(b) "building society" has the same meaning as in the Building Societies Act 1986 (c. 53).

Financial investigators

68 Applications and appeals

(1) Subsections (2) and (3) apply to--

(a) an application under section 41, 42, 48, 49 or 63;

(b) an appeal under section 43, 44, 65 or 66.

(2) An accredited financial investigator must not make such an application or bring such an appeal unless he falls within subsection (3).

(3) An accredited financial investigator falls within this subsection if he is one of the following or is authorised for the purposes of this section by one of the following--

(a) a police officer who is not below the rank of superintendent,

(b) a customs officer who is not below such grade as is designated by the Commissioners of Customs and Excise as equivalent to that rank,

(c) an accredited financial investigator who falls within a description specified in an order made for the purposes of this paragraph by the Secretary of State under section 453.

(4) If such an application is made or appeal brought by an accredited financial investigator any subsequent step in the application or appeal or any further application or appeal relating to the same matter may be taken, made or brought by a different accredited financial investigator who falls within subsection (3).

(5) If--

(a) an application for a restraint order is made by an accredited financial investigator, and

(b) a court is required under section 58(6) to give the applicant for the order an opportunity to be heard,

the court may give the opportunity to a different accredited financial investigator who falls within subsection (3).

Exercise of powers

69 Powers of court and receiver

(1) This section applies to--

(a) the powers conferred on a court by sections 41 to 60 and sections 62 to 67;

(b) the powers of a receiver appointed under section 48, 50 or 52.

(2) The powers--

(a) must be exercised with a view to the value for the time being of realisable property being made available (by the property's realisation) for satisfying any confiscation order that has been or may be made against the defendant;

(b) must be exercised, in a case where a confiscation order has not been made, with a view to securing that there is no diminution in the value of realisable property;

(c) must be exercised without taking account of any obligation of the defendant or a recipient of a tainted gift if the obligation conflicts with the object of satisfying any confiscation order that has been or may be made against the defendant;

(d) may be exercised in respect of a debt owed by the Crown.

(3) Subsection (2) has effect subject to the following rules--

(a) the powers must be exercised with a view to allowing a person other than the defendant or a recipient of a tainted gift to retain or recover the value of any interest held by him;

(b) in the case of realisable property held by a recipient of a tainted gift, the powers must be exercised with a view to realising no more than the value for the time being of the gift;

(c) in a case where a confiscation order has not been made against the defendant, property must not be sold if the court so orders under subsection (4).

(4) If on an application by the defendant, or by the recipient of a tainted gift, the court decides that property cannot be replaced it may order that it must not be sold.

(5) An order under subsection (4) may be revoked or varied.

Committal

70 Committal by magistrates' court

(1) This section applies if--

(a) a defendant is convicted of an offence by a magistrates' court, and

(b) the prosecutor asks the court to commit the defendant to the Crown Court with a view to a confiscation order being considered under section 6.

(2) In such a case the magistrates' court--

(a) must commit the defendant to the Crown Court in respect of the offence, and

(b) may commit him to the Crown Court in respect of any other offence falling within subsection (3).

(3) An offence falls within this subsection if--

(a) the defendant has been convicted of it by the magistrates' court or any other court, and

(b) the magistrates' court has power to deal with him in respect of it.

(4) If a committal is made under this section in respect of an offence or offences--

(a) section 6 applies accordingly, and

(b) the committal operates as a committal of the defendant to be dealt with by the Crown Court in accordance with section 71.

(5) If a committal is made under this section in respect of an offence for which (apart from this section) the magistrates' court could have committed the defendant for sentence under section 3(2) of the Sentencing Act (offences triable either way) the court must state whether it would have done so.

(6) A committal under this section may be in custody or on bail.

71 Sentencing by Crown Court

(1) If a defendant is committed to the Crown Court under section 70 in respect of an offence or offences, this section applies (whether or not the court proceeds under section 6).

(2) In the case of an offence in respect of which the magistrates' court has stated under section 70(5) that it would have committed the defendant for sentence, the Crown Court--

(a) must inquire into the circumstances of the case, and

(b) may deal with the defendant in any way in which it could deal with him if he had just been convicted of the offence on indictment before it.

(3) In the case of any other offence the Crown Court--

(a) must inquire into the circumstances of the case, and

(b) may deal with the defendant in any way in which the magistrates' court could deal with him if it had just convicted him of the offence.

Compensation

72 Serious default

(1) If the following three conditions are satisfied the Crown Court may order the payment of such compensation as it believes is just.

(2) The first condition is satisfied if a criminal investigation has been started with regard to an offence and proceedings are not started for the offence.

(3) The first condition is also satisfied if proceedings for an offence are started against a person and--

(a) they do not result in his conviction for the offence, or

(b) he is convicted of the offence but the conviction is quashed or he is pardoned in respect of it.

(4) If subsection (2) applies the second condition is that--

(a) in the criminal investigation there has been a serious default by a person mentioned in subsection (9), and

(b) the investigation would not have continued if the default had not occurred.

(5) If subsection (3) applies the second condition is that--

(a) in the criminal investigation with regard to the offence or in its prosecution there has been a serious default by a person who is mentioned in subsection (9), and

(b) the proceedings would not have been started or continued if the default had not occurred.

(6) The third condition is that an application is made under this section by a person who held realisable property and has suffered loss in consequence of anything done in relation to it by or in pursuance of an order under this Part.

(7) The offence referred to in subsection (2) may be one of a number of offences with regard to which the investigation is started.

(8) The offence referred to in subsection (3) may be one of a number of offences for which the proceedings are started.

(9) Compensation under this section is payable to the applicant and--

(a) if the person in default was or was acting as a member of a police force, the compensation is payable out of the police fund from which the expenses of that force are met;

(b) if the person in default was a member of the Crown Prosecution Service or was acting on its behalf, the compensation is payable by the Director of Public Prosecutions;

(c) if the person in default was a member of the Serious Fraud Office, the compensation is payable by the Director of that Office;

(d) if the person in default was a customs officer, the compensation is payable by the Commissioners of Customs and Excise;

(e) if the person in default was an officer of the Commissioners of Inland Revenue, the compensation is payable by those Commissioners.

73 Order varied or discharged

(1) This section applies if--

(a) the court varies a confiscation order under section 29 or discharges one under section 30, and

(b) an application is made to the Crown Court by a person who held realisable property and has suffered loss as a result of the making of the order.

(2) The court may order the payment of such compensation as it believes is just.

(3) Compensation under this section is payable--

(a) to the applicant;

(b) by the Lord Chancellor.

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