Proceeds of Crime Act 2002 (c. 29)

(The document as of February, 2008)

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Enforcement abroad

74 Enforcement abroad

(1) This section applies if--

(a) any of the conditions in section 40 is satisfied,

(b) the prosecutor or the Director believes that realisable property is situated in a country or territory outside the United Kingdom (the receiving country), and

(c) the prosecutor or the Director (as the case may be) sends a request for assistance to the Secretary of State with a view to it being forwarded under this section.

(2) In a case where no confiscation order has been made, a request for assistance is a request to the government of the receiving country to secure that any person is prohibited from dealing with realisable property.

(3) In a case where a confiscation order has been made and has not been satisfied, discharged or quashed, a request for assistance is a request to the government of the receiving country to secure that--

(a) any person is prohibited from dealing with realisable property;

(b) realisable property is realised and the proceeds are applied in accordance with the law of the receiving country.

(4) No request for assistance may be made for the purposes of this section in a case where a confiscation order has been made and has been satisfied, discharged or quashed.

(5) If the Secretary of State believes it is appropriate to do so he may forward the request for assistance to the government of the receiving country.

(6) If property is realised in pursuance of a request under subsection (3) the amount ordered to be paid under the confiscation order must be taken to be reduced by an amount equal to the proceeds of realisation.

(7) A certificate purporting to be issued by or on behalf of the requested government is admissible as evidence of the facts it states if it states--

(a) that property has been realised in pursuance of a request under subsection (3),

(b) the date of realisation, and

(8) If the proceeds of realisation made in pursuance of a request under subsection (3) are expressed in a currency other than sterling, they must be taken to be the sterling equivalent calculated in accordance with the rate of exchange prevailing at the end of the day of realisation.

Interpretation

75 Criminal lifestyle

(1) A defendant has a criminal lifestyle if (and only if) the following condition is satisfied.

(2) The condition is that the offence (or any of the offences) concerned satisfies any of these tests--

(a) it is specified in Schedule 2;

(b) it constitutes conduct forming part of a course of criminal activity;

(c) it is an offence committed over a period of at least six months and the defendant has benefited from the conduct which constitutes the offence.

(3) Conduct forms part of a course of criminal activity if the defendant has benefited from the conduct and--

(a) in the proceedings in which he was convicted he was convicted of three or more other offences, each of three or more of them constituting conduct from which he has benefited, or

(b) in the period of six years ending with the day when those proceedings were started (or, if there is more than one such day, the earliest day) he was convicted on at least two separate occasions of an offence constituting conduct from which he has benefited.

(4) But an offence does not satisfy the test in subsection (2)(b) or (c) unless the defendant obtains relevant benefit of not less than £5000.

(5) Relevant benefit for the purposes of subsection (2)(b) is--

(a) benefit from conduct which constitutes the offence;

(b) benefit from any other conduct which forms part of the course of criminal activity and which constitutes an offence of which the defendant has been convicted;

(c) benefit from conduct which constitutes an offence which has been or will be taken into consideration by the court in sentencing the defendant for an offence mentioned in paragraph (a) or (b).

(6) Relevant benefit for the purposes of subsection (2)(c) is--

(a) benefit from conduct which constitutes the offence;

(b) benefit from conduct which constitutes an offence which has been or will be taken into consideration by the court in sentencing the defendant for the offence mentioned in paragraph (a).

(7) The Secretary of State may by order amend Schedule 2.

(8) The Secretary of State may by order vary the amount for the time being specified in subsection (4).

76 Conduct and benefit

(1) Criminal conduct is conduct which--

(a) constitutes an offence in England and Wales, or

(b) would constitute such an offence if it occurred in England and Wales.

(2) General criminal conduct of the defendant is all his criminal conduct, and it is immaterial--

(a) whether conduct occurred before or after the passing of this Act;

(b) whether property constituting a benefit from conduct was obtained before or after the passing of this Act.

(3) Particular criminal conduct of the defendant is all his criminal conduct which falls within the following paragraphs--

(a) conduct which constitutes the offence or offences concerned;

(b) conduct which constitutes offences of which he was convicted in the same proceedings as those in which he was convicted of the offence or offences concerned;

(c) conduct which constitutes offences which the court will be taking into consideration in deciding his sentence for the offence or offences concerned.

(4) A person benefits from conduct if he obtains property as a result of or in connection with the conduct.

(5) If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage.

(6) References to property or a pecuniary advantage obtained in connection with conduct include references to property or a pecuniary advantage obtained both in that connection and some other.

(7) If a person benefits from conduct his benefit is the value of the property obtained.

77 Tainted gifts

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

(a) no court has made a decision as to whether the defendant has a criminal lifestyle, or

(b) a court has decided that the defendant has a criminal lifestyle.

(2) A gift is tainted if it was made by the defendant at any time after the relevant day.

(3) A gift is also tainted if it was made by the defendant at any time and was of property--

(a) which was obtained by the defendant as a result of or in connection with his general criminal conduct, or

(b) which (in whole or part and whether directly or indirectly) represented in the defendant's hands property obtained by him as a result of or in connection with his general criminal conduct.

(4) Subsection (5) applies if a court has decided that the defendant does not have a criminal lifestyle.

(5) A gift is tainted if it was made by the defendant at any time after--

(a) the date on which the offence concerned was committed, or

(b) if his particular criminal conduct consists of two or more offences and they were committed on different dates, the date of the earliest.

(6) For the purposes of subsection (5) an offence which is a continuing offence is committed on the first occasion when it is committed.

(7) For the purposes of subsection (5) the defendant's particular criminal conduct includes any conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned.

(8) A gift may be a tainted gift whether it was made before or after the passing of this Act.

(9) The relevant day is the first day of the period of six years ending with--

(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.

78 Gifts and their recipients

(1) If the defendant transfers property to another person for a consideration whose value is significantly less than the value of the property at the time of the transfer, he is to be treated as making a gift.

(2) If subsection (1) applies the property given is to be treated as such share in the property transferred as is represented by the fraction--

(a) whose numerator is the difference between the two values mentioned in subsection (1), and

(b) whose denominator is the value of the property at the time of the transfer.

(3) References to a recipient of a tainted gift are to a person to whom the defendant has made the gift.

79 Value: the basic rule

(1) This section applies for the purpose of deciding the value at any time of property then held by a person.

(2) Its value is the market value of the property at that time.

(3) But if at that time another person holds an interest in the property its value, in relation to the person mentioned in subsection (1), is the market value of his interest at that time, ignoring any charging order under a provision listed in subsection (4).

(4) The provisions are--

(a) section 9 of the Drug Trafficking Offences Act 1986 (c. 32);

(b) section 78 of the Criminal Justice Act 1988 (c. 33);

(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)).

(5) This section has effect subject to sections 80 and 81.

80 Value of property obtained from conduct

(1) This section applies for the purpose of deciding the value of property obtained by a person as a result of or in connection with his criminal conduct; and the material time is the time the court makes its decision.

(2) The value of the property at the material time is the greater of the following--

(a) the value of the property (at the time the person obtained it) adjusted to take account of later changes in the value of money;

(b) the value (at the material time) of the property found under subsection (3).

(3) The property found under this subsection is as follows--

(a) if the person holds the property obtained, the property found under this subsection is that property;

(b) if he holds no part of the property obtained, the property found under this subsection is any property which directly or indirectly represents it in his hands;

(c) if he holds part of the property obtained, the property found under this subsection is that part and any property which directly or indirectly represents the other part in his hands.

(4) The references in subsection (2)(a) and (b) to the value are to the value found in accordance with section 79.

81 Value of tainted gifts

(1) The value at any time (the material time) of a tainted gift is the greater of the following--

(a) the value (at the time of the gift) of the property given, adjusted to take account of later changes in the value of money;

(b) the value (at the material time) of the property found under subsection (2).

(2) The property found under this subsection is as follows--

(a) if the recipient holds the property given, the property found under this subsection is that property;

(b) if the recipient holds no part of the property given, the property found under this subsection is any property which directly or indirectly represents it in his hands;

(c) if the recipient holds part of the property given, the property found under this subsection is that part and any property which directly or indirectly represents the other part in his hands.

(3) The references in subsection (1)(a) and (b) to the value are to the value found in accordance with section 79.

82 Free property

Property is free unless an order is in force in respect of it under any of these provisions--

(a) section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders);

(b) Article 11 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (deprivation orders);

(d) section 143 of the Sentencing Act (deprivation orders);

(e) section 23 or 111 of the Terrorism Act 2000 (c. 11) (forfeiture orders);

(f) section 246, 266, 295(2) or 298(2) of this Act.

83 Realisable property

Realisable property is--

(a) any free property held by the defendant;

(b) any free property held by the recipient of a tainted gift.

84 Property: general provisions

(1) Property is all property wherever situated and includes--

(a) money;

(b) all forms of real or personal property;

(2) The following rules apply in relation to property--

(a) property is held by a person if he holds an interest in it;

(b) property is obtained by a person if he obtains an interest in it;

(c) property is transferred by one person to another if the first one transfers or grants an interest in it to the second;

(d) references to property held by a person include references to property vested in his trustee in bankruptcy, permanent or interim trustee (within the meaning of the Bankruptcy (Scotland) Act 1985 (c. 66)) or liquidator;

(e) references to an interest held by a person beneficially in property include references to an interest which would be held by him beneficially if the property were not so vested;

(f) references to an interest, in relation to land in England and Wales or Northern Ireland, are to any legal estate or equitable interest or power;

(g) references to an interest, in relation to land in Scotland, are to any estate, interest, servitude or other heritable right in or over land, including a heritable security;

(h) references to an interest, in relation to property other than land, include references to a right (including a right to possession).

85 Proceedings

(1) Proceedings for an offence are started--

(a) when a justice of the peace issues a summons or warrant under section 1 of the Magistrates' Courts Act 1980 (c. 43) in respect of the offence;

(b) when a person is charged with the offence after being taken into custody without a warrant;

(c) when a bill of indictment is preferred under section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 (c. 36) in a case falling within subsection (2)(b) of that section (preferment by Court of Appeal or High Court judge).

(2) If more than one time is found under subsection (1) in relation to proceedings they are started at the earliest of them.

(3) If the defendant is acquitted on all counts in proceedings for an offence, the proceedings are concluded when he is acquitted.

(4) If the defendant is convicted in proceedings for an offence and the conviction is quashed or the defendant is pardoned before a confiscation order is made, the proceedings are concluded when the conviction is quashed or the defendant is pardoned.

(5) If a confiscation order is made against the defendant in proceedings for an offence (whether the order is made by the Crown Court or the Court of Appeal) the proceedings are concluded--

(a) when the order is satisfied or discharged, or

(b) when the order is quashed and there is no further possibility of an appeal against the decision to quash the order.

(6) If the defendant is convicted in proceedings for an offence but the Crown Court decides not to make a confiscation order against him, the following rules apply--

(a) if an application for leave to appeal under section 31(2) is refused, the proceedings are concluded when the decision to refuse is made;

(b) if the time for applying for leave to appeal under section 31(2) expires without an application being made, the proceedings are concluded when the time expires;

(c) if on appeal under section 31(2) the Court of Appeal confirms the Crown Court's decision, and an application for leave to appeal under section 33 is refused, the proceedings are concluded when the decision to refuse is made;

(d) if on appeal under section 31(2) the Court of Appeal confirms the Crown Court's decision, and the time for applying for leave to appeal under section 33 expires without an application being made, the proceedings are concluded when the time expires;

(e) if on appeal under section 31(2) the Court of Appeal confirms the Crown Court's decision, and on appeal under section 33 the House of Lords confirms the Court of Appeal's decision, the proceedings are concluded when the House of Lords confirms the decision;

(f) if on appeal under section 31(2) the Court of Appeal directs the Crown Court to reconsider the case, and on reconsideration the Crown Court decides not to make a confiscation order against the defendant, the proceedings are concluded when the Crown Court makes that decision;

(g) if on appeal under section 33 the House of Lords directs the Crown Court to reconsider the case, and on reconsideration the Crown Court decides not to make a confiscation order against the defendant, the proceedings are concluded when the Crown Court makes that decision.

(7) In applying subsection (6) any power to extend the time for making an application for leave to appeal must be ignored.

(8) In applying subsection (6) the fact that a court may decide on a later occasion to make a confiscation order against the defendant must be ignored.

86 Applications

(1) An application under section 19, 20, 27 or 28 is concluded--

(a) in a case where the court decides not to make a confiscation order against the defendant, when it makes the decision;

(b) in a case where a confiscation order is made against him as a result of the application, when the order is satisfied or discharged, or when the order is quashed and there is no further possibility of an appeal against the decision to quash the order;

(c) in a case where the application is withdrawn, when the person who made the application notifies the withdrawal to the court to which the application was made.

(2) An application under section 21 or 22 is concluded--

(a) in a case where the court decides not to vary the confiscation order concerned, when it makes the decision;

(b) in a case where the court varies the confiscation order as a result of the application, when the order is satisfied or discharged, or when the order is quashed and there is no further possibility of an appeal against the decision to quash the order;

(c) in a case where the application is withdrawn, when the person who made the application notifies the withdrawal to the court to which the application was made.

87 Confiscation orders

(1) A confiscation order is satisfied when no amount is due under it.

(2) A confiscation order is subject to appeal until there is no further possibility of an appeal on which the order could be varied or quashed; and for this purpose any power to grant leave to appeal out of time must be ignored.

88 Other interpretative provisions

(1) A reference to the offence (or offences) concerned must be construed in accordance with section 6(9).

(2) A criminal investigation is an investigation which police officers or other persons have a duty to conduct with a view to it being ascertained whether a person should be charged with an offence.

(3) A defendant is a person against whom proceedings for an offence have been started (whether or not he has been convicted).

(4) A reference to sentencing the defendant for an offence includes a reference to dealing with him otherwise in respect of the offence.

(5) The Sentencing Act is the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6).

(6) The following paragraphs apply to references to orders--

(a) a confiscation order is an order under section 6;

(b) a restraint order is an order under section 41.

(7) Sections 75 to 87 and this section apply for the purposes of this Part.

General

89 Procedure on appeal to the Court of Appeal

(1) An appeal to the Court of Appeal under this Part lies only with the leave of that Court.

(2) Subject to rules of court made under section 53(1) of the Supreme Court Act 1981 (c. 54) (distribution of business between civil and criminal divisions) the criminal division of the Court of Appeal is the division--

(a) to which an appeal to that Court under this Part is to lie, and

(b) which is to exercise that Court's jurisdiction under this Part.

(3) In relation to appeals to the Court of Appeal under this Part, the Secretary of State may make an order containing provision corresponding to any provision in the Criminal Appeal Act 1968 (c. 19) (subject to any specified modifications).

90 Procedure on appeal to the House of Lords

(1) Section 33(3) of the Criminal Appeal Act 1968 (limitation on appeal from criminal division of the Court of Appeal) does not prevent an appeal to the House of Lords under this Part.

(2) In relation to appeals to the House of Lords under this Part, the Secretary of State may make an order containing provision corresponding to any provision in the Criminal Appeal Act 1968 (subject to any specified modifications).

91 Crown Court Rules

In relation to--

(a) proceedings under this Part, or

(b) receivers appointed under this Part,

Crown Court Rules may make provision corresponding to provision in Civil Procedure Rules.

Part 3 Confiscation: Scotland

Confiscation orders

92 Making of order

(1) The court must act under this section where the following three conditions are satisfied.

(2) The first condition is that an accused falls within either of the following paragraphs--

(a) he is convicted of an offence or offences, whether in solemn or summary proceedings, or

(b) in the case of summary proceedings in respect of an offence (without proceeding to conviction) an order is made discharging him absolutely.

(3) The second condition is that the prosecutor asks the court to act under this section.

(4) The third condition is that the court decides to order some disposal in respect of the accused; and an absolute discharge is a disposal for the purpose of this subsection.

(5) If the court acts under this section it must proceed as follows--

(a) it must decide whether the accused has a criminal lifestyle;

(b) if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct;

(c) if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct.

(6) If the court decides under subsection (5)(b) or (c) that the accused has benefited from the conduct referred to--

(a) it must decide the recoverable amount, and

(b) it must make an order (a confiscation order) requiring him to pay that amount.

(7) But the court must treat the duty in subsection (6) as a power if it believes that any victim of the conduct has at any time started or intends to start proceedings against the accused in respect of loss, injury or damage sustained in connection with the conduct.

(8) Before making an order under this section the court must take into account any representations made to it by any person whom the court thinks is likely to be affected by the order.

(9) The standard of proof required to decide any question arising under subsection (5) or (6) is the balance of probabilities.

(10) The first condition is not satisfied if the accused is unlawfully at large (but section 111 may apply).

(11) For the purposes of any appeal or review, an order under this section is a sentence.

(12) References in this Part to the offence (or offences) concerned are to the offence (or offences) mentioned in subsection (2).

(13) In this section and sections 93 to 118 "the court" means the High Court of Justiciary or the sheriff.

93 Recoverable amount

(1) The recoverable amount for the purposes of section 92 is an amount equal to the accused's benefit from the conduct concerned.

(2) But if the accused shows that the available amount is less than that benefit the recoverable amount is--

(a) the available amount, or

(b) a nominal amount, if the available amount is nil.

(3) But if section 92(7) applies the recoverable amount is such amount as--

(a) the court believes is just, but

(b) does not exceed the amount found under subsection (1) or (2) (as the case may be).

(4) In calculating the accused's benefit from the conduct concerned for the purposes of subsection (1), any property in respect of which--

(a) a recovery order is in force under section 266, or

(b) a forfeiture order is in force under section 298(2),

must be ignored.

(5) If the court decides the available amount, it must include in the confiscation order a statement of its findings as to the matters relevant for deciding that amount.

94 Accused's benefit

(1) If the court is acting under section 92 this section applies for the purpose of--

(a) deciding whether the accused has benefited from conduct, and

(b) deciding his benefit from the conduct.

(2) The court must take account of--

(a) conduct occurring up to the time it makes its decision;

(b) property obtained up to that time.

(3) Subsection (4) applies if--

(a) the conduct concerned is general criminal conduct,

(b) a confiscation order mentioned in subsection (5) has at an earlier time been made against the accused, and

(4) His benefit found at the time the last confiscation order mentioned in subsection (3)(c) was made against him must be taken for the purposes of this section to be his benefit from his general criminal conduct at that time.

(5) If the conduct concerned is general criminal conduct the court must deduct the aggregate of the following amounts--

(a) the amount ordered to be paid under each confiscation order previously made against the accused;

(b) the amount ordered to be paid under each confiscation order previously made against him under--

(i) the Drug Trafficking Offences Act 1986 (c. 32);

(ii) Part 1 of the Criminal Justice (Scotland) Act 1987 (c. 41);

(iii) Part 6 of the Criminal Justice Act 1988 (c. 33);

(iv) the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I.17));

(v) Part 1 of the Drug Trafficking Act 1994 (c. 37);

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