Criminal Justice Act 1988 (c. 33)

(The document as of February, 2008)

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(c) without prejudice to the generality of this subsection, direct that in such circumstances as may be specified proceeds which arise out of action taken in the designated country with a view to satisfying a confiscation order shall be treated as reducing the amount payable under the order to such extent as may be specified.

(2) In this Act--

"external confiscation order" means an order made by a court in a designated country for the purpose of recovering payments or other rewards received in connection with drug trafficking or their value; and
"modifications" includes additions, alterations and omissions.

(3) An Order in Council under this section may make different provision for different cases or classes of case.

(4) The power to make an Order in Council under this section includes power to modify this Act in such a way as to confer power on a person to exercise a discretion.

(5) An Order in Council under this section shall not be made unless a draft of the Order has been laid before Parliament and approved by resolution of each House of Parliament.

26A Registration of external confiscation orders

(1) On an application made by or on behalf of the Government of a designated country, the High Court may register an external confiscation order made there if--

(a) it is satisfied that at the time of registration the order is in force and not subject to appeal;

(b) it is satisfied, where the person against whom the order is made did not appear in the proceedings, that he received notice of the proceedings in sufficient time to enable him to defend them; and

(c) it is of the opinion that enforcing the order in England and Wales would not be contrary to the interests of justice.

(2) In subsection (1) above "appeal" includes--

(a) any proceedings by way of discharging or setting aside a judgment; and

(b) an application for a new trial or a stay of execution.

(3) The High Court shall cancel the registration of an external confiscation order if it appears to the court that the order has been satisfied by payment of the amount due under it or by the person against whom it was made serving imprisonment in default of payment or by any other means. " .

16 The following subsections shall be substituted for subsections (12) and (13) of section 38 (general interpretation)--

" (12) Proceedings for an offence are concluded--

(a) when (disregarding any power of a court to grant leave to appeal out of time) there is no further possibility of a confiscation order being made in the proceedings;

(b) on the satisfaction of a confiscation order made in the proceedings (whether by payment of the amount due under the order or by the defendant serving imprisonment in default).

(13) An order is subject to appeal until (disregarding any power of a court to grant leave to appeal out of time) there is no further possibility of an appeal on which the order could be varied or set aside. "

17 In section 40(4) (effect of Act in Scotland), in paragraph (b), for "17" there shall be substituted "17A".

Part II Amendments of Criminal Justice (Scotland) Act 1987

18 The [1987 c. 41.] Criminal Justice (Scotland) Act 1987 shall be amended as follows.

19 In section 1 (confiscation orders) in paragraph (b) of subsection (2) after the words "restriction on importation" there shall be inserted the words "and exportation".

20 In subsection (6)(a) of section 11 (which applies the provisions of that section to restraint orders under the [1986 c. 22.] Drug Trafficking Offences Act 1986 registered in Scotland) after the word "information" there shall be inserted the words "in respect of the charge".

21 In subsection (3) of section 16 (application of proceeds of realisation and other sums) for the words from "sum", in the second place where it occurs, to "applied", in the third place where it occurs, there shall be substituted the words " sheriff clerk shall apply the money received--

(a) first, in payment of any expenses to payment of which a person is entitled under section 37(2) of this Act but which were not paid to him under subsection (1) above;

(b) next, in payment of the administrator's remuneration and expenses;

22 In section 34(6)(d) (bankruptcy in England and Wales of person holding realisable property) for the words "subsections (2)(b) and (4) are" there shall be substituted the words "subsection (2)(b) is".

23 In subsection (5) of section 38 (order to permit entry to premises) after the word "constable" there shall be inserted the words "or person commissioned as aforesaid".

Section 108.

SCHEDULE 6 The Criminal Injuries Compensation Board

Status

1 The Board shall not be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and the Board's property shall not be regarded as property of, or held on behalf of, the Crown.

Membership

2 (1) The Board shall consist of such number of members as the Secretary of State thinks fit to appoint, and he may appoint one of them as chairman.

(2) A person may only be appointed to be a member of the Board if he is a barrister practising in England and Wales, an advocate practising in Scotland,a solicitor practising in England and Wales or Scotland or a person who holds or has held judicial office in England and Wales or Scotland.

(3) Subject to the following provisions of this Schedule, a person shall hold and vacate office as a member or chairman of the Board in accordance with the terms of his appointment.

(4) A person shall not hold office as a member of the Board for more than five years under any one appointment, but a person who ceases to be a member shall be eligible for reappointment.

(5) A person shall vacate office as a member of the Board--

(a) if he ceases to be qualified for appointment to that office; or

(b) on attaining the age of 72;

unless the Secretary of State considers that it is in the interests of the efficient operation of the compensation scheme that he should continue to hold office.

(6) A person may at any time resign his office as a member or as chairman of the Board by giving the Secretary of State notice in writing to that effect.

(7) Subject to sub-paragraph (8) below, the Secretary of State may at any time remove a person from office as a member of the Board if satisfied that--

(a) he has been convicted of a criminal offence;

(b) he has become bankrupt or has had his estate sequestrated or has made an arrangement with, or granted a trust deed for, his creditors;

(d) he is otherwise unable or unfit to perform his duties.

(8) The power conferred by sub-paragraph (7) above shall only be exercisable--

(a) in the case of a member who practises or has practised as a barrister or solicitor in England and Wales, or who holds or has held judicial office there, with the consent of the Lord Chancellor; and

(b) in the case of a member who practises or has practised as an advocate or solicitor in Scotland, or who holds or has held judicial office there, with the consent of the Lord President of the Court of Session.

3 (1) The Board shall pay to its members such remuneration and allowances as the Secretary of State may, with the approval of the Treasury, determine.

(2) In the case of any such member or former member of the Board as the Secretary of State may, with the approval of the Treasury, determine, the Board shall pay, or make arrangements for the payment of, such pension, allowance or gratuity to, or in respect of, him as may be so determined.

4 Where a person ceases to hold office as a member of or as chairman of the Board otherwise than on the expiry of his term of office and it appears to the Secretary of State that there are special circumstances which make it right for that person to receive compensation, the Secretary of State may, with the consent of the Treasury, direct the Board to make to that person a payment of such amount as, with the consent of the Treasury, the Secretary of State may determine.

Staff

5 The Board may, after consultation with the Secretary of State, appoint such officers and servants as the Board think fit, subject to the approval of the Treasury as to numbers and as to remuneration and other terms and conditions of service.

6 Employment by the Board shall be included among the kinds of employment to which a superannuation scheme under section 1 of the [1972 c. 11.] Superannuation Act 1972 can apply, and accordingly in Schedule 1 to that Act, at the beginning of the list of "Other Bodies" there shall be inserted--

" Criminal Injuries Compensation Board " .

Expenses

7 Any expenses incurred by the Board in discharging their functions shall be defrayed by the Secretary of State.

Proceedings

8 The validity of any proceedings of the Board shall not be affected by any defect in the appointment of a member.

Accounts and information etc.

9 (1) The Board shall--

(a) keep proper accounts and proper records in relation to the accounts; and

(b) prepare in respect of each financial year a statement of accounts in such form as the Secretary of State may, with the approval of the Treasury, direct.

(2) The statement of accounts prepared by the Board for each financial year shall be submitted to the Secretary of State at such time as he shall, with the approval of the Treasury, direct.

(3) The Secretary of State shall, on or before 30th November in any year, send to the Comptroller and Auditor General the statement of accounts prepared by the Board under sub-paragraph (1) above for the financial year last ended.

(4) The Comptroller and Auditor General shall examine, certify and report on the statement of accounts sent to him under sub-paragraph (3) above and shall lay copies of the statement and of his report before each House of Parliament.

(5) In this Schedule "financial year" means the period beginning with the day on which this Schedule comes into force and ending with 31st March following that day and each successive period of 12 months.

10 (1) As soon as possible after the end of each financial year the Board shall make a report to the Secretary of State on the operation of the scheme and the discharge of their functions during that year.

(2) The Secretary of State shall lay before each House of Parliament a copy of every report made by the Board under this paragraph.

11 The Board shall provide the Secretary of State with such information relating to their administration of the scheme as he may from time to time require and for that purpose shall permit any person authorised in that behalf by the Secretary of State to inspect and make copies of their accounts, books, documents or papers and shall afford to that person such explanation thereof as he may reasonably require.

12 The Secretary of State may give to the Board such directions as he thinks fit as to the financial and management systems and procedures to be adopted by the Board; and the Board shall give effect to any such directions.

Section 108.

SCHEDULE 7 Compensation

Claims for compensation

1 (1) The Board shall not award compensation to a person unless, in addition to any other conditions relating to it being satisfied, he has made a claim for it in the prescribed manner.

(2) In this Schedule "prescribed" means prescribed by rules under paragraph 14 below.

2 Unless the circumstances appear to them to be exceptional--

(a) in a case where the Board have not previously awarded compensation in respect of an injury they shall not determine a claim in respect of it which is made after the end of three years from the date of the incident giving rise to the injury; and

(b) in a case where they have previously awarded compensation in respect of an injury, they shall not determine any further claim in respect of it which is made after the end of three years beginning with the date of the notice under paragraph 6(2) below relating to the award, or latest award, of compensation in respect of the injury.

3 If

(a) the Board--

(i) have previously awarded compensation in respect of an injury; and

(ii) stated at the time of a previous award that the evidence before them showed that a particular medical condition might arise in the future as a result of the injury; and

(b) a claim is made in respect of such a condition,

the Board shall determine the claim whenever it is made.

Procedure

4 (1) The Secretary of State shall make rules of procedure in relation to claims for compensation.

(2) Without prejudice to the generality of sub-paragraph (1) above rules under this paragraph may in particular--

(a) specify matters which may be dealt with or which must be dealt with--

(i) by members of the Board's staff; or

(ii) by a member or members of the Board;

(b) make provision--

(i) for the determination of a claim without a hearing;

(ii) for the reconsideration without a hearing of a previous determination without a hearing; and

(iii) for the extent to which a previous determination may be altered on such a reconsideration;

(c) make provision as to circumstances in which a claim is to be or may be determined by a decision at a hearing on specified issues and as to the procedure for settling the issues which are to be considered;

(d) make provision about the conduct of hearings and in particular about the calling of witnesses, the admissibility of, and weight to be given to, hearsay and opinion evidence and the order of proceedings;

(e) make provision as to the confidentiality of information disclosed in connection with a claim; and

(f) make such incidental or supplementary provision as appears to the Secretary of State to be appropriate.

(3) Rules under this paragraph may make different provision for different descriptions of cases.

(4) Rules under this paragraph shall be made by statutory instrument.

(5) A statutory instrument containing any such rules shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Applications for reconsideration of claims

5 (1) Where a claimant is aggrieved by the determination of a claim which was determined without a hearing, he may question the determination by applying to the Board for the claim to be reconsidered after a hearing.

(2) A claimant may not make an application under this paragraph if, as part of their determination, the Board have certified that in their opinion no prima facie case for an award of compensation was disclosed by his application.

(3) An application under this paragraph--

(a) shall be entertained by the Board if it is made before the expiry of the period of three months beginning with the date on which the claimant was notified of their determination; and

(b) may be entertained by them if made outside that period if they are satisfied that there are exceptional reasons for doing so.

(4) The Board may refuse an application under this paragraph if they are of the opinion that there is sufficient reason to do so and, if the claimant so requires, shall give him a certificate that the application has been refused.

(5) Where the Board refuse an application for the reconsideration of a claim determined without a hearing in accordance with the law of England and Wales, the High Court, on the application of the claimant, may make an order of mandamus requiring the Board to reconsider his claim after a hearing.

(6) Where the Board refuse an application for the reconsideration of a claim determined without a hearing in accordance with the law of Scotland, the Court of Session, on the application of the claimant, may direct the Board to reconsider the claim after a hearing.

Payment of compensation

6 (1) Except in prescribed cases, compensation, whether on an interim or a final award, shall be paid in a lump sum.

(2) It shall be the duty of the Board to give a claimant written notice of the amount of an award.

(3) A claimant shall not be entitled to a payment unless the Board have received from him written notice to the effect that he has received a notice under sub-paragraph (2) above and accepts the amount of compensation specified in the notice as the proper amount.

Deferment of determination

7 (1) The Board may only defer the determination of a claim on the ground that criminal proceedings are current if they consider that the proceedings are likely to be material to their determination of the claim.

(2) Where the Board are satisfied that a claimant is qualified for an award of compensation but do not have all the information they need to assess the amount of the award, they may defer the determination of the claim for such reasonable period as may be appropriate to allow them to obtain that information.

(3) Where the Board are satisfied that a claimant is qualified for an award of compensation but have reason to believe that he may become entitled to an award of compensation under the scheme established by the [S.I. 1988/793 (N.I. 4).] Criminal Injuries (Compensation) (Northern Ireland) Order 1988, or any order replacing that Order, or under any similar scheme established in any other country or territory, they may defer the determination of his claim for such reasonable period as may be appropriate in order to establish whether he will become entitled to such an award and, if he will, the amount of the award.

Appropriate law

8 Subject to the provisions of this Part of this Act, a claim for compensation under any of the heads specified in section 111 above is to be determined, and the amount of any compensation which falls to be assessed under any of those heads is to be assessed, in accordance with the rules of the law of England and Wales or the law of Scotland (including rules contained in Acts of Parliament but not including rules allowing a plaintiff or pursuer aggravated damages or interest) in accordance with which a claim in tort or delict arising out of the same facts for damages under a corresponding head would fall to be determined.

Private medical treatment

9 In assessing compensation no account shall be taken of any expenses incurred in respect of private medical treatment unless the Board are satisfied that such treatment is or was essential; and where the Board are so satisfied in relation to any such treatment, compensation for the expenses incurred in respect of that treatment shall not exceed a reasonable amount.

Calculation of earning capacity

10 (1) For the purposes of assessing compensation payable under this Part of this Act, the earning capacity of the person who sustained the injury to which the claim in question relates shall be taken not to be or to have been in excess of one-and-a-half times the gross average industrial wage.

(2) For the purposes of this paragraph the gross average industrial wage shall be taken to be whatever sum is specified by the Secretary of State by order as being the gross average industrial wage; and the Secretary of State shall cause any order specifying such a sum to be published in such manner as he thinks fit.

(3) The Secretary of State may by order amend sub-paragraph (1) above by varying the multiplier for the time being specified in that sub-paragraph.

(4) An order under sub-paragraph (2) above shall be made by statutory instrument.

(5) A statutory instrument containing any such order shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Reduction of compensation by reference to social security benefits etc.

11 (1) Compensation, other than compensation in respect of funeral expenses, shall be assessed on the basis that the loss to be compensated is reduced by the value of any entitlement to benefits which the claimant has in consequence of the injury to which the claim relates or, as the case may be, the death of the person who sustained that injury.

(2) In this paragraph--

"benefit" means--
(a)
any social security benefits payable under the laws of any part of the United Kingdom and any similar benefits payable under the laws of any other country or territory;
(b)
[1988/793 (N.I. 4)] Injuries (Compensation) (Northern Ireland) Order 1988, or any order replacing that Order, or under any similar scheme established in any other country or territory;
(c)
benefits (including any return of premiums) under any insurance arrangements, other than private insurance arrangements; and
"private insurance arrangements" means insurance arrangements for which no person wholly or partly pays except--
(a)
the person who sustained the injury to which the claim relates;
(b)
his spouse;
(c)
any person who on the date that that injury was sustained--
(i)
was living in the same household as the person who sustained that injury,
(ii)
was so living with him as his spouse; and
(iii)
had been so living with him in the same household during the whole of the period of two years immediately preceding that date;
(d)
where the person who sustained that injury was at the time under the age of 18 years, his parent or guardian.

(3) In calculating for the purposes of this paragraph the value of any entitlement to benefits regard shall be had--

(a) to any liability to income tax likely to reduce the value of that entitlement; and

(b) to any effect the making of the award is likely to have on that entitlement.

(4) In the case of a claim by the surviving spouse of a person who died as a result of having sustained the injury to which the claim relates, no account shall be taken of any re-marriage of his or of his prospect of re-marriage in calculating for the purposes of this paragraph the value of the surviving spouse's entitlement to social security benefits.

Reduction of compensation by reference to pension rights

12 (1) Compensation payable, other than compensation in respect of funeral expenses, shall be assessed on the basis that the loss to be compensated is reduced by the value of any pension rights, other than private pension rights, which--

(a) where the claimant is the person who sustained the injury to which the claim relates, are enjoyed by him in consequence of that injury and by virtue of any office or employment of his; or

(b) where the claimant is a dependant of the person who sustained the injury to which the claim relates, are enjoyed by him in consequence of that person's death and by virtue of any office or employment of that person.

(2) In assessing the value of any pension rights for the purposes of this paragraph, regard shall be had to any likelihood that present or future liability to income tax may reduce their value.

(3) In this Schedule "private pension rights" means rights arising under pension arrangements for which no person wholly or partly pays except--

(a) the person who sustained the injury to which the claim relates;

(b) his spouse;

(i) was living in the same household as the person who sustained that injury;

(ii) was so living with him as his spouse; and

(iii) had been so living with him in the same household during the whole of the period of two years immediately preceding that date;

(d) where the person who sustained that injury was at the time under the age of 18 years, his parent or guardian.

(4) For the purposes of this paragraph "pension rights" includes sums paid under insurance arrangements, other than private insurance arrangements, and gratuities.

Reduction of compensation by reference to damages etc.

13 Where the Board are satisfied that, by virtue of--

(a) a judgment or decree in, or the settlement of, any action for damages; or

(b) any order under section 35 (compensation orders against convicted persons) or section 43A (payment of the proceeds of forfeited property to a person suffering personal injury, loss or damage as the result of an offence) of the of Criminal Courts Act 1973 or section 98 of the [1980 c. 62.] Criminal Justice (Scotland) Act 1980 (compensation orders against convicted persons),

a claimant has received any payment which compensates him for any loss in respect of which compensation is payable to him under this Part of this Act, the compensation so payable to him shall be assessed on the basis that that loss is reduced by the amount of that payment.

Miscellaneous rules

14 (1) The Secretary of State may by rules--

(a) provide for the use of prescribed forms;

(b) prescribe circumstances in which, and the method by which, one person may act for another in relation to a claim for compensation;

(d) specify cases in which compensation is not to be paid as a lump sum and how it is to be paid in any such case;

(e) provide that, in the case of compensation awarded to a person who is under the age of 18 years or under a disability, the Board shall have such power with respect to the payment and investment of the award as may be prescribed; and

(f) make such incidental or supplementary provision as appears to the Secretary of State to be appropriate.

(2) Rules under this paragraph may make different provision for different descriptions of cases.

(3) Rules under this paragraph shall be made by statutory instrument.

(4) A statutory instrument containing any such rules shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Section 123.

SCHEDULE 8 Custodial Sentences for Young Offenders

Part I Amendments

General

1 In any enactment for a reference to a detention centre or to a youth custody centre or to both there shall be substituted a reference to a young offender institution.

2 In any enactment except--

(a) section 21 of the [1968 c. 27.] Firearms Act 1968;

(b) Schedule 1 to the [1974 c. 23.] Juries Act 1974;

(d) section 17(3) of the [1982 c. 48.] Criminal Justice Act 1982,

for a reference (however expressed) to a detention centre order or to a sentence of youth custody or to both there shall be substituted a reference to a sentence of detention in a young offender institution.

3 (1) In any enactment except--

(a) Part II of Schedule 1 to the [1974 c. 23.] Juries Act 1974;

(b) section 5 of the [1974 c. 53.] Rehabilitation of Offenders Act 1974; and

for a reference to a sentence of Borstal training there shall be substituted a reference to a sentence of detention in a young offender institution.

(2) In any enactment for a reference to a Borstal institution there shall be substituted a reference to a young offender institution.

Army Act 1955 (c. 18)Air Force Act 1955 (c. 19)Naval Discipline Act 1957 (c. 53)

4 In subsection (6) –

(a) of section 71AA of the Army Act 1955 and the Air Force Act 1955; and

(b) of section 43AA of the Naval Discipline Act 1957,

(each of which is concerned with the making of custodial orders against young Service offenders) the following paragraph shall be substituted for paragraph (a)--

" (a) where the offender is in or removed to England or Wales, any institution in which a person sentenced to detention in a young offender institution could be detained, section 1C of the [1982 c. 48.] Criminal Justice Act 1982 having effect in relation to the offender as it has effect in relation to an offender sentenced to detention in a young offender institution; "

5 In sub-paragraph (6) of paragraph 10--

(a) of Schedule 5A to the Army Act 1955 and the Air Force Act 1955; and

(b) of Schedule 4A to the Naval Discipline Act 1957,

(each of which is concerned with the making of custodial orders against young civilian offenders) the following paragraph shall be substituted for paragraph (a)--

" (a) where the offender is removed to England or Wales, any institution in which a person sentenced to detention in a young offender institution could be detained, section 1C of the Criminal Justice Act 1982 having effect in relation to the offender as it has effect in relation to an offender sentenced to detention in a young offender institution; "

Firearms Act 1968 (c. 27)

6 In section 21(1) and (2) of the Firearms Act 1968 (possession of firearms by persons previously convicted of crime) after the words "youth custody" there shall be inserted the words "or detention in a young offender institution".

Employment Agencies Act 1973 (c. 35)

7 In section 13(7)(a)(ii) of the [1973 c. 35.] Employment Agencies Act 1973 for the words from "prison" to "institution", in the second place where it occcurs, there shall be substituted the words "custiodial sentence passed by a criminal court in the United Kingdom, the Channel Islands or the Isle of Man;".

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