25A Recovery from estate of deceased defendant impractical: discharge of order
(1) This section applies if—
(a) a court has made a confiscation order,
(b) the defendant dies while the order is not satisfied, and
(c) the designated officer for a magistrates' court applies to the Crown Court for the discharge of the order.
(2) The court may discharge the order if it appears to the court that—
(a) it is not possible to recover anything from the estate of the deceased for the purpose of satisfying the order to any extent, or
(b) it would not be reasonable to make any attempt, or further attempt, to recover anything from the estate of the deceased for that purpose.
(1) This section applies if—
(a) the court proceeds under section 6 in pursuance of section 19 or 20, or
(b) the prosecutor ... applies under section 21.
(2) In such a case—
(a) the prosecutor ... 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 ... applies under section 21);
(c) section 17 applies accordingly;
(d) section 18 applies as it applies in the circumstances mentioned in section 18(1).
(1) This section applies if the following two conditions are satisfied.
(2) The first condition is that a defendant falls within any of the following paragraphs—
(a) he absconds and, either before or after doing so, he is convicted of an offence or offences in proceedings before the Crown Court;
(b) he absconds after being committed to the Crown Court for sentence in respect of an offence or offences under any provision of sections 14 to 20 of the Sentencing Code;
(c) he absconds after being 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 ... 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 ... has taken reasonable steps to contact the defendant;
(c) section 6(9) applies as if the reference to subsection (2) were to subsection (2) of this section;
(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—
(a) section 19 has effect as if subsection (1) read—
(1) This section applies if—
(a) at a time when the first condition in section 27 was satisfied the court did not proceed under section 6,
(b) before the end of the period of six years starting with the day when the defendant ceased to be an absconder, the prosecutor applies to the Crown Court to proceed under section 6, and
(c) the court believes it is appropriate for it to do so.
;
(b) section 20 has effect as if subsection (4) read—
(4) The second condition is that—
(a) before the end of the period of six years starting with the day when the defendant ceased to be an absconder, the prosecutor applies to the Crown Court to reconsider whether the defendant has benefited from his general or particular criminal conduct (as the case may be), and
(b) the court believes it is appropriate for it to do so.
;
(c) section 21 has effect as if subsection (1) read—
(1) This section applies if—
(a) a court has made a confiscation order,
(b) the prosecutor believes that if the court were to find the amount of the defendant's benefit in pursuance of this section it would exceed the relevant amount,
(c) before the end of the period of six years starting with the day when the defendant ceased to be an absconder, the prosecutor applies to the Crown Court to proceed under this section, and
(d) the court believes it is appropriate for it to do so.
;
(d) the modifications set out in subsection (5)(a) to (d) of this section do not apply to proceedings that take place by virtue of section 19, 20 or 21 (as applied by this subsection).
(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
(c) the period of three months (starting with the day the court believes he absconded) has ended.
(3) The second condition is that—
(a) the prosecutor ... 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 ... has taken reasonable steps to contact the defendant;
(c) section 6(9) applies as if the reference to subsection (2) were to subsection (2) of this section;
(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—
(a) section 21 has effect as if subsection (1) read—
(1) This section applies if—
(a) a court has made a confiscation order,
(b) the prosecutor believes that if the court were to find the amount of the defendant's benefit in pursuance of this section it would exceed the relevant amount,
(c) before the end of the period of six years starting with the day when the defendant ceased to be an absconder, the prosecutor applies to the Crown Court to proceed under this section, and
(d) the court believes it is appropriate for it to do so.
;
(b) the modifications set out in subsection (5)(a) to (d) of this section do not apply to proceedings that take place by virtue of section 21 (as applied by this subsection).
(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.
(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,
(c) he is convicted of an offence (or any of the offences) mentioned in section 28(2)(a),
(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.
(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
(c) he applies to the Crown Court to discharge the order.
(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,
(c) subsection (1)(b) does not apply, and
(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.
(1) This section applies if a court—
(a) makes a confiscation order, and
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) Sections 129(1) to (3) and (5) and 132(1) to (4) of the Sentencing Code (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.
(2A) Where a court is fixing a term of imprisonment or detention under section 129(3) of the Sentencing Code (as applied by subsection (2) above) in respect of an amount ordered to be paid under a confiscation order, the maximum terms are those specified in the second column of the Table for amounts described in the corresponding entry in the first column.
TABLE
Amount | Maximum term
£10,000 or less | 6 months
More than £10,000 but no more than £500,000 | 5 years
More than £500,000 but no more than £1 million | 7 years
More than £1 million | 14 years
(2B) In the application of subsection (2) of section 129 of the Sentencing Code by virtue of subsection (2) above, the reference to subsections (3) to (5) of that section is to be read as a reference to—
(a) subsections (3) and (5) of that section, and
(b) subsection (2A) above.
(2C) The Secretary of State may by order—
(a) amend subsection (2A) so as to provide for minimum terms of imprisonment or detention under section 129(3) of the Sentencing Code (as applied by subsection (2) above) in respect of amounts ordered to be paid under a confiscation order;
(b) amend the Table in subsection (2A) so as to remove, alter or replace any entry (including an entry inserted by virtue of the power in paragraph (a) of this subsection) or to add any entry.
(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;
(c) in section 87 of that Act ignore subsection (3) (inquiry into means).
(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 Powers of Criminal Courts (Sentencing) Act 2000 (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 264 or 277 of the Sentencing Code (including by virtue of section 264A or 277A of that Code) 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 129(3) of the Sentencing Code (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.
(1) Subsection (2) applies if—
(a) a court varies a confiscation order under section 21, 21A, 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 35(2A), 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 129(3) of the Sentencing Code.
(2) In such a case the court must fix a reduced term of imprisonment or detention in respect of the confiscation order under section 129(3) of the Sentencing Code 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 129(3) of the Sentencing Code.
(5) If the effect of section 12 is to increase the maximum period applicable in relation to a confiscation order under section 35(2A), on the application of the prosecutor the Crown Court may amend the term of imprisonment or detention fixed in respect of the order under section 129(3) of that Code.
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) Section 41 (power to make a restraint order) applies if—
(a) any of the first to fifth conditions is satisfied (see subsections (2) to (6)), and
(b) there is a real risk that relevant realisable property held by any person will be dissipated unless the Crown Court exercises the powers conferred by section 41 in relation to that property.
(1A) For the purposes of this section—
(a) “relevant realisable property” is realisable property that could be used for the purpose of satisfying any confiscation order that has been or may be made against the defendant;
(b) a reference to relevant realisable property being “dissipated” is to it ceasing to be available for that purpose.
(1B) In determining for the purposes of subsection (1)(b) whether there is a real risk of relevant realisable property being dissipated, the court must, in particular, have regard to the following—
(a) the nature of the relevant realisable property;
(b) the extent to which any person has taken steps with a view to relevant realisable property being dissipated;
(c) any circumstances of a person who holds the relevant realisable property that may affect the ease with which they would be able to secure the dissipation of the property;
(d) any evidence of such a person’s character;
(e) the nature of the defendant’s criminal conduct;
(f) the amount by which the defendant is suspected or believed to have benefited from their criminal conduct;
(g) the stage of the proceedings for an offence against the defendant.
(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 are reasonable grounds to suspect 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 ... 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 ... 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 ... 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—
(a) there has been undue delay in continuing the proceedings, or
(b) the prosecutor does not intend to proceed.
(8) If an application mentioned in the third, fourth or fifth condition has been made the condition is not satisfied if the court believes that—
(a) there has been undue delay in continuing the application, or
(b) the prosecutor ... does not intend to proceed.
(9) If the first condition is satisfied—
(a) references in this Part to the defendant are to the alleged offender;
(b) references in this Part to the prosecutor are to the person the court believes is to have conduct of any proceedings for the offence;
(c) section 77(9) has effect as if proceedings for the offence had been started against the defendant when the investigation was started.
(1) In a case where this section applies (see section 40), the Crown Court may make an order (a restraint order) prohibiting any specified person from dealing with any realisable property held by him.
(2) A restraint order may provide that it applies—
(a) to all realisable property held by the specified person whether or not the property is described in the order;
(b) to realisable property transferred to the specified person after the order is made.
(2A) A restraint order must be made subject to an exception enabling relevant legal aid payments to be made (a legal aid exception).
(2B) A relevant legal aid payment is a payment that the specified person is obliged to make—
(a) by regulations under section 23 or 24 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and
(b) in connection with services provided in relation to an offence which falls within subsection (5),
whether the obligation to make the payment arises before or after the restraint order is made.
(3) A restraint order may be made subject to other exceptions, and an exception may in particular—
(a) make provision for reasonable living expenses and reasonable legal expenses;
(b) make provision for the purpose of enabling any person to carry on any trade, business, profession or occupation;
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3A) In making an exception to a restraint order that makes provision for reasonable living expenses the court must, in particular, have regard to the following—
(a) the period for which the restraint order is to have effect;
(b) the specified person’s applicable standard of living (see subsection (11));
(c) the specified person’s means;
(d) the value of relevant realisable property held by the specified person in relation to the amount that the defendant is, or is likely to be, required to pay under a confiscation order;
(e) the extent to which expenditure by the specified person is necessary or desirable for the purpose of improving or maintaining the value of relevant realisable property held by them.
(4) But where an exception to a restraint order is made under subsection (3), it must not make provision for any legal expenses which—
(a) relate to an offence which falls within subsection (5), and
(b) are incurred by the defendant or by a recipient of a tainted gift.
(5) These offences fall within this subsection—
(a) the offence mentioned in section 40(2) or (3), if the first or second condition (as the case may be) is satisfied;
(b) the offence (or any of the offences) concerned, if the third, fourth or fifth condition is satisfied.
(5A) A legal aid exception—
(a) must be made subject to prescribed restrictions (if any) on—
(i) the circumstances in which payments may be made in reliance on the exception, or
(ii) the amount of the payments that may be made in reliance on the exception,
(b) must be made subject to other prescribed conditions (if any), and
(c) may be made subject to other conditions.
(5B) Any other exception to a restraint order may be made subject to conditions.
(6) Subsection (7) applies if—
(a) a court makes a restraint order, and
(b) the applicant for the order applies to the court to proceed under subsection (7) (whether as part of the application for the restraint order or at any time afterwards).
(7) The court may make such order as it believes is appropriate for the purpose of ensuring that the restraint order is effective.
(7A) Subsections (7B) to (7CA) apply where the Crown Court makes a restraint order (by virtue of the first condition in section 40) as a result of a criminal investigation having been started in England and Wales with regard to an offence.
(7B) The court—
(a) must include in the order a requirement for the applicant for the order to report to the court on the progress of the investigation at such times and in such manner as the order may specify (a “reporting requirement”), and
(b) must discharge the order if proceedings for the offence are not started within a reasonable time (and this duty applies whether or not an application to discharge the order is made under section 42(3)).
(7C) The duty under subsection (7B)(a) does not apply if the court decides that, in the circumstances of the case, a reporting requirement should not be imposed, but the court—
(a) must give reasons for its decision, and
(b) may at any time vary the order so as to include a reporting requirement (and this power applies whether or not an application to vary the order is made under section 42(3)).
(7CA) In determining for the purposes of subsection (7B)(b) whether proceedings for the offence have not started within a reasonable time, the court must, in particular, have regard to the following—
(a) the length of time that has passed since the making of the restraint order;
(b) the reasons given by the prosecutor for proceedings not having started within that time;
(c) the length and complexity of the criminal investigation, both before and after the making of the restraint order;
(d) the extent to which the matters subject to that investigation include matters arising abroad;
(e) the length and complexity of the potential proceedings;
(f) the nature of the restraint order (for example, the extent of the property to which it relates);
(g) the impact of the restraint order on any person affected by the order.
(7D) In considering whether to make an order under subsection (7), the court must, in particular, consider whether any restriction or prohibition on the defendant's travel outside the United Kingdom ought to be imposed for the purpose mentioned in that subsection.
(8) A restraint order does not affect property for the time being subject to a charge under any of these provisions—
(a) section 9 of the Drug Trafficking Offences Act 1986 (c. 32);
(b) section 78 of the Criminal Justice Act 1988 (c. 33);
(c) Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));
(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)).
(9) Dealing with property includes removing it from England and Wales.
(10) In this section “prescribed” means prescribed by regulations made by the Secretary of State.
(11) In this section—
“applicable standard of living”, in relation to a specified person, means—
the person’s standard of living immediately before the making of the restraint order, or
in a case where there is reasonable cause to believe that the person enjoys a higher standard of living as a result of criminal activity, the standard of living that the person would enjoy but for that activity;
“relevant realisable property” has the same meaning as in section 40.
41ZA Exception for legal expenses in respect of offence with which confiscation proceedings concerned
(1) Where the court makes an exception to a restraint order under section 41(3) to which this section applies, it must ensure that the exception—
(a) is limited to legal expenses that the specified person has reasonably incurred or that the person reasonably incurs,
(b) specifies the total amount that may be released for legal expenses in pursuance of the exception, and
(c) is made subject to the required conditions (in addition to any conditions imposed under section 41(3)(c)).
(2) The Lord Chancellor may by regulations specify the required conditions for the purposes of subsection (1).
(3) A required condition may, in particular—
(a) restrict who may receive sums released in pursuance of the exception (by, for example, requiring released sums to be paid to professional legal advisers), or
(b) be made for the purpose of controlling the amount of any sum released in pursuance of the exception in respect of an item of expenditure.
(4) A required condition made for the purpose mentioned in subsection (3)(b) may, for example, provide for a sum to be released in respect of an item of expenditure only if—
(a) the court has assessed the amount allowed by the regulations in respect of that item, and
(b) the sum is released for payment of the assessed amount.
(5) For the purposes of subsection (4), the regulations may, in particular, make provision—
(a) limiting the amount of remuneration allowable to representatives for a unit of time worked;
(b) limiting the total amount of remuneration allowable to representatives for work done in connection with proceedings or a step in proceedings;
(c) limiting the amount allowable in respect of an item of expenditure incurred by a representative or incurred, otherwise than in respect of the remuneration of a representative, by a party to proceedings.
(6) Before making regulations under this section, the Lord Chancellor must consult such persons as the Lord Chancellor considers appropriate.
41A Restraint orders: power to retain seized property etc.
(1) A restraint order may include provision authorising the detention of any property to which it applies if the property—
(a) is seized by an appropriate officer under a relevant seizure power, or
(b) is produced to an appropriate officer in compliance with a production order under section 345.
(2) Provision under subsection (1) may, in particular—
(a) relate to specified property, to property of a specified description or to all property to which the restraint order applies;
(b) relate to property that has already been seized or produced or to property that may be seized or produced in future.
(3) “Appropriate officer” means—
(a) an accredited financial investigator;
(b) a constable;
(c) an officer of Revenue and Customs;
(ca) an immigration officer;
(d) a National Crime Agency officer,
(e) a member of staff of the relevant director (within the meaning of section 352(5A)).
(4) “Relevant seizure power” means a power to seize property which is conferred by or by virtue of—
(a) section 47C,
(b) section 352, or
(c) Part 2 or 3 of the Police and Criminal Evidence Act 1984 (including as applied by order under section 114(2) of that Act).
(5) The Secretary of State may by order amend the definition of “relevant seizure power”.
(1) A restraint order—
(a) may be made only on an application by an applicant falling within subsection (2);
(b) may be made on an ex parte application to a judge in chambers.
(2) These applicants fall within this subsection—
(a) the prosecutor;
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) an accredited financial investigator.
(3) An application to discharge or vary a restraint order or an order under section 41(7) may be made to the Crown Court by—
(a) the person who applied for the order;
(b) any person affected by the order.
(4) Subsections (5) to (8) apply to an application under subsection (3).
(5) The court—
(a) may discharge the order;
(b) may vary the order.
(6) 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).
(6A) The duty in subsection (6) to discharge a restraint order on the conclusion of proceedings does not apply where—
(a) the proceedings are concluded by reason of a defendant's conviction for an offence being quashed,
(b) the order is in force at the time when the conviction is quashed, and
(c) the Court of Appeal has ordered the defendant to be retried for the offence or the prosecutor has applied for such an order to be made.
(6B) But the court must discharge the restraint order—
(a) if the Court of Appeal declines to make an order for the defendant to be retried,
(b) if the Court of Appeal orders the defendant to be retried but proceedings for the retrial are not started within a reasonable time, or
(c) otherwise, on the conclusion of proceedings for the retrial of the defendant.
(7) If the condition in section 40 which was satisfied was that an investigation was started—
(a) the court must discharge the order if within a reasonable time proceedings for the offence are not started;
(b) otherwise, the court must discharge the order on the conclusion of the proceedings.
(7A) In determining for the purposes of subsection (7)(a) whether proceedings for the offence have not started within a reasonable time, the court must, in particular, have regard to the following—
(a) the length of time that has passed since the making of the restraint order;
(b) the reasons given by the prosecutor for proceedings not having started within that time;
(c) the length and complexity of the criminal investigation, both before and after the making of the restraint order;
(d) the extent to which the matters subject to that investigation include matters arising abroad;
(e) the length and complexity of the potential proceedings;
(f) the nature of the restraint order (for example, the extent of the property to which it relates);
(g) the impact of the restraint order on any person affected by the order.
(8) If the condition in section 40 which was satisfied was that an application was to be made—
(a) the court must discharge the order if within a reasonable time the application is not made;
(b) otherwise, the court must discharge the order on the conclusion of the application.
(1) In making or varying a restraint order at any time after the defendant’s conviction for an offence, the Crown Court must have regard, in particular, to—
(a) the fact of the defendant’s conviction, and
(b) whether any of the following has been, or is likely to be, made against the defendant—
(i) a compensation order under Chapter 2 of Part 7 of the Sentencing Code;
(ii) an order requiring payment of a surcharge under section 42 of that Code;
(iii) an unlawful profit order under section 4 of the Prevention of Social Housing Fraud Act 2013;
(iv) a slavery and trafficking reparation order under section 8 of the Modern Slavery Act 2015.
(2) Subsections (3) and (4) apply where—
(a) the Crown Court makes a restraint order at a time when the defendant has not been convicted of an offence, and
(b) the defendant is subsequently convicted of an offence at a time when the order remains in force.
(3) If the restraint order is subject to an exception made under section 41(3), the Crown Court must review the appropriateness of the exception having regard, in particular, to the matters mentioned in subsection (1).
(4) Following that review the court may vary the restraint order, whether or not an application has been made under section 42(3).
(1) This section applies where—
(a) a restraint order includes provision under section 41A authorising the detention of property, and
(b) the restraint order is discharged under section 42(5) or 67J(3)(b).
(2) This section also applies where—
(a) a restraint order includes provision under section 41A authorising the detention of property, and
(b) the restraint order is varied under section 42(5) or 67J(3)(b) so as to omit any such provision.
(3) The property may be detained until there is no further possibility of an appeal against—
(a) the decision to discharge or vary the restraint order, or
(b) any decision made on an appeal against that decision.
(1) Evidence must not be excluded in restraint proceedings on the ground that it is hearsay (of whatever degree).
(2) Sections 2 to 4 of the Civil Evidence Act 1995 (c. 38) apply in relation to restraint proceedings as those sections apply in relation to civil proceedings.
(3) Restraint proceedings are proceedings—
(a) for a restraint order;
(b) for the discharge or variation of a restraint order;
(c) on an appeal under section 67J.
(4) Hearsay is a statement which is made otherwise than by a person while giving oral evidence in the proceedings and which is tendered as evidence of the matters stated.
(5) Nothing in this section affects the admissibility of evidence which is admissible apart from this section.
(1) The registration Acts—
(a) apply in relation to restraint orders as they apply in relation to orders which affect land and are made by the court for the purpose of enforcing judgments or recognisances;
(b) apply in relation to applications for restraint orders as they apply in relation to other pending land actions.
(2) The registration Acts are—
(a) the Land Registration Act 1925 (c. 21);
(b) the Land Charges Act 1972 (c. 61);
(c) the Land Registration Act 2002 (c. 9).
(3) But no notice may be entered in the register of title under the Land Registration Act 2002 in respect of a restraint order.
(4) The person applying for a restraint order must be treated for the purposes of section 57 of the Land Registration Act 1925 (inhibitions) as a person interested in relation to any registered land to which—
(a) the application relates, or
(b) a restraint order made in pursuance of the application relates.
47A Sections 47B to 47S: meaning of “appropriate officer”
(1) In sections 47B to 47S “appropriate officer” means—
(a) an officer of Revenue and Customs,
(aa) an immigration officer;
(b) a constable, ...
(ba) an SFO officer, or
(c) an accredited financial investigator.
(2) In subsection (1)(c) the reference to an accredited financial investigator is a reference to an accredited financial investigator who falls within a description specified in an order made for the purposes of that provision by the Secretary of State or the Welsh Ministers under section 453.
(1) An appropriate officer may exercise the power conferred by section 47C if satisfied that any of the following conditions is met.
(2) The first condition is that—
(a) a criminal investigation has been started in England and Wales with regard to an indictable offence,
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) proceedings for the offence have not yet been started against the person in England and Wales,
(d) there are reasonable grounds to suspect that the person has benefited from conduct constituting the offence, and
(e) a restraint order is not in force in respect of any realisable property.
(3) The second condition is that—
(a) a criminal investigation has been started in England and Wales with regard to an indictable offence,
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) proceedings for the offence have not yet been started against the person in England and Wales, and
(d) a restraint order is in force in respect of any realisable property.
(4) The third condition is that—
(a) proceedings for an indictable offence have been started in England and Wales and have not been concluded,
(b) there is reasonable cause to believe that the defendant has benefited from conduct constituting the offence, and
(c) a restraint order is not in force in respect of any realisable property.
(5) The fourth condition is that—
(a) proceedings for an indictable offence have been started in England and Wales and have not been concluded, and
(b) a restraint order is in force in respect of any realisable property.
(6) The fifth condition is that—
(a) an application by the prosecutor has been made under section 19, 20, 27 or 28 and not concluded, or the officer believes that such an application is to be made, and
(b) there is reasonable cause to believe that the defendant has benefited from criminal conduct.
(7) The sixth condition is that—
(a) an application by the prosecutor has been made under section 21 and not concluded, or the officer 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).
(8) The seventh condition is that—
(a) an application by the prosecutor has been made under section 22 and not concluded, or the officer 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).
(9) The third or fourth condition is not met if the officer believes that—
(a) there has been undue delay in continuing the proceedings, or
(b) the prosecutor does not intend to proceed.
(10) If an application mentioned in the fifth, sixth or seventh condition has been made the condition is not met if the officer believes that—
(a) there has been undue delay in continuing the application, or
(b) the prosecutor does not intend to proceed.
(11) In relation to the first or second condition references in sections 47C to 47S to the defendant are to the person mentioned in that condition.
(12) In relation to the first or second condition section 77(9) has effect as if proceedings for the offence had been started against the defendant when the investigation was started.
(1) On being satisfied as mentioned in section 47B(1) an appropriate officer may seize any realisable property if the officer has reasonable grounds for suspecting that—
(a) the property may otherwise be made unavailable for satisfying any confiscation order that has been or may be made against the defendant, or
(b) the value of the property may otherwise be diminished as a result of conduct by the defendant or any other person.
(2) But the officer may not under subsection (1) seize—
(a) cash, or
(b) exempt property.
(3) “Cash” has the same meaning as in section 289.
(4) “Exempt property” means—
(a) such tools, books, vehicles and other items of equipment as are necessary to the defendant for use personally in the defendant's employment, business or vocation;
(b) such clothing, bedding, furniture, household equipment, provisions or other things as are necessary for satisfying the basic domestic needs of the defendant and the defendant's family.
(5) In relation to realisable property which is free property held by the recipient of a tainted gift, references in subsection (4) to the defendant are to be read as references to the recipient of that gift.
Section 47B(11) is subject to this subsection.
(5A) On being satisfied as mentioned in section 47B(1) an appropriate officer may seize any free property if the officer has reasonable grounds for suspecting that it is a cryptoasset-related item.
(5B) A “cryptoasset-related item” is an item of property that is, or that contains or gives access to information that is, likely to assist in the seizure under subsection (1) of any cryptoasset.
(5C) The circumstances in which a cryptoasset is “seized” for the purposes of subsection (1) include circumstances in which it is transferred into a crypto wallet controlled by the appropriate officer.
(5D) If an appropriate officer is lawfully on any premises, the officer may, for the purpose of—
(a) determining whether any property is a cryptoasset-related item, or
(b) enabling or facilitating the seizure under subsection (1) of any cryptoasset,
require any information which is stored in any electronic form and accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible, or from which it can readily be produced in a visible and legible form.
(5E) But subsection (5D) does not authorise an appropriate officer to require a person to produce information which the person would be entitled to refuse to provide on grounds of legal professional privilege in proceedings in the High Court.
(5F) Where an appropriate officer has seized a cryptoasset-related item under subsection (5A), they may use any information obtained from it for the purpose of—
(a) identifying or gaining access to a crypto wallet, and
(b) by doing so, enabling or facilitating the seizure under subsection (1) of any cryptoassets.
(6) The power conferred by this section—
(a) may be exercised only with the appropriate approval under section 47G unless, in the circumstances, it is not practicable to obtain that approval before exercising the power, and
(aa) where applicable, in accordance with subsection (6A) or (6B).
(6A) The power conferred by this section is exercisable by an officer of Revenue and Customs only if the officer has reasonable grounds for suspecting that conduct constituting the relevant offence relates to an assigned matter (within the meaning of the Customs and Excise Management Act 1979).
(6B) The power conferred by this section is exercisable by an immigration officer only if the officer has reasonable grounds for suspecting that conduct constituting the relevant offence—
(a) relates to the entitlement of one or more persons who are not nationals of the United Kingdom to enter, transit across, or be in, the United Kingdom (including conduct which relates to conditions or other controls on any such entitlement), or
(b) is undertaken for the purposes of, or otherwise in relation to, a relevant nationality enactment.
(7) “Relevant offence” means—
(a) in a case where the officer is satisfied that the first, second, third or fourth condition in section 47B is met, the offence mentioned in that condition,
(b) in a case where the officer is satisfied that any of the other conditions in section 47B is met, the offence (or any of the offences) concerned.
(8) Relevant nationality enactment” means any enactment in—
(a) the British Nationality Act 1981,
(b) the Hong Kong Act 1985,
(c) the Hong Kong (War Wives and Widows) Act 1996,
(d) the British Nationality (Hong Kong) Act 1997,
(e) the British Overseas Territories Act 2002, or
(f) an instrument made under any of those Acts.
(1) If an appropriate officer is lawfully on any premises the officer may search the premises for the purpose of finding any property which—
(a) the officer has reasonable grounds for suspecting may be found there, and
(b) if found there, the officer intends to seize under section 47C.
(2) The power conferred by this section may be exercised only with the appropriate approval under section 47G unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.
(3) “Premises” has the meaning given by section 23 of the Police and Criminal Evidence Act 1984.
(1) An appropriate officer may exercise the following powers if the officer has reasonable grounds for suspecting that a person is carrying property that may be seized under section 47C.
(2) The officer may, so far as the officer thinks it necessary or expedient for the purpose of seizing the property under that section, require the person—
(a) to permit a search of any article with the person,
(b) to permit a search of the person.
(3) An officer exercising a power under subsection (2) may detain the person for so long as is necessary for its exercise.
(4) A power conferred by this section may be exercised only with the appropriate approval under section 47G unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.
(5) This section does not require a person to submit to an intimate search or strip search (within the meaning of section 164 of the Customs and Excise Management Act 1979).
(1) The powers specified in subsection (4) are exercisable if—
(a) an appropriate officer has reasonable grounds for suspecting that a vehicle contains property that may be seized under section 47C, and
(b) it appears to the officer that the vehicle is under the control of a person who is in or in the vicinity of the vehicle.
(2) The powers are exercisable only if the vehicle is—
(a) in any place to which, at the time of the proposed exercise of the powers, the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission, or
(b) in any other place to which at that time people have ready access but which is not a dwelling.
(3) But if the vehicle is in a garden or yard or other land occupied with and used for the purposes of a dwelling, the officer may exercise the powers under subsection (4) only if the officer has reasonable grounds for believing—
(a) that the person does not reside in the dwelling, and
(b) that the vehicle is not in the place in question with the express or implied permission of another who resides in the dwelling.
(4) The officer may, so far as the officer thinks it necessary or expedient for the purpose of seizing the property under section 47C, require the person to—
(a) permit entry to the vehicle,
(b) permit a search of the vehicle.
(5) An officer exercising a power under subsection (4) may detain the vehicle for so long as is necessary for its exercise.
(6) A power conferred by this section may be exercised only with the appropriate approval under section 47G unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.
(1) This section has effect for the purposes of sections 47C, 47D, 47E and 47F.
(2) The appropriate approval, in relation to the exercise of a power by an appropriate officer, means the approval of a justice of the peace or (if that is not practicable in any case) the approval of a senior officer.
(3) A senior officer means—
(a) in relation to the exercise of a power by an officer of Revenue and Customs, an officer of Revenue and Customs of a rank designated by the Commissioners for Her Majesty's Revenue and Customs as equivalent to that of a senior police officer,
(aa) in relation to the exercise of a power by an immigration officer, an immigration officer of a rank designated by the Secretary of State as equivalent to that of a senior police officer,
(ab) in relation to the exercise of a power by a National Crime Agency officer, the Director General of the National Crime Agency or any other National Crime Agency officer authorised by the Director General (whether generally or specifically) for this purpose,
(ac) in relation to the exercise of a power by an SFO officer, the Director of the Serious Fraud Office,
(b) in relation to the exercise of a power by a constable, a senior police officer,
(ba) in relation to the exercise of a power by an accredited financial investigator who is—
(i) a member of the civilian staff of a police force in England and Wales (including the metropolitan police force), within the meaning of Part 1 of the Police Reform and Social Responsibility Act 2011, or
(ii) a member of staff of the City of London police force,
a senior police officer,
(c) in relation to the exercise of a power by an accredited financial investigator who does not fall within any of the preceding paragraphs, an accredited financial investigator who falls within a description specified in an order made for this purpose by the Secretary of State or the Welsh Ministers under section 453.
(4) A senior police officer means a police officer of at least the rank of inspector.
(1) An appropriate officer must give a written report to the appointed person in any case where—
(a) the officer seizes property under section 47C without the approval of a justice of the peace, and
(b) any of the property seized is not detained for more than 48 hours.
(2) An appropriate officer must also give a written report to the appointed person in any case where—
(a) the officer exercises any of the powers conferred by sections 47D, 47E and 47F without the approval of a justice of the peace, and
(b) no property is seized under section 47C.
(3) A report under this section must give particulars of the circumstances which led the officer to believe that—
(a) the powers were exercisable, and
(b) it was not practicable to obtain the approval of a justice of the peace.
(4) The appointed person means a person appointed for the purposes of this subsection by the Secretary of State.
(5) The appointed person must not be a person employed under or for the purposes of a government department; and the terms and conditions of appointment, including any remuneration or expenses to be paid, are to be determined by the Secretary of State.
(6) The period of 48 hours mentioned in subsection (1)(b) is to be calculated in accordance with subsection (7).
(7) In calculating a period of 48 hours in accordance with this subsection, no account is to be taken of—
(a) any Saturday or Sunday,
(b) Christmas Day,
(c) Good Friday, or
(d) any day that is a bank holiday under the Banking and Financial Dealings Act 1971 in England and Wales.
47I Report by appointed person on exercise of powers
(1) As soon as possible after the end of each financial year, the person appointed under section 47H(4) must prepare a report for that year.
(2) “Financial year” means—
(a) the period beginning with the day on which section 55 of the Policing and Crime Act 2009 comes into force and ending with the next 31 March (which is the first financial year), and
(b) each subsequent period of twelve months beginning with 1 April.
(3) The report must give the appointed person's opinion as to the circumstances and manner in which the powers conferred by sections 47C, 47D, 47E and 47F are being exercised in cases where the officer who exercised them is required to give a report under section 47H.
(4) The report may make any recommendations the appointed person considers appropriate.
(5) The appointed person must send a copy of the report to the Secretary of State.
(6) The Secretary of State must—
(a) publish any report received under subsection (5), and
(b) lay a copy before Parliament.
(7) Before acting under subsection (6) the Secretary of State must exclude from the report any matter which the Secretary of State thinks is likely to prejudice any criminal investigation or criminal proceedings.
(8) If the Secretary of State excludes any matter from the report the Secretary of State must comply with subsection (6) in relation to the whole of the report as soon as the Secretary of State thinks that the excluded matter is no longer likely to prejudice any criminal investigation or criminal proceedings.
(1) This section applies if an appropriate officer seizes property under section 47C.
(2) The property may be detained initially for a period of 48 hours.
(3) The period of 48 hours is to be calculated in accordance with section 47H(7).
47K Further detention pending making of restraint order
(1) This section applies if—
(a) property is detained under section 47J, and
(b) no restraint order is in force in respect of the property.
(2) If within the period mentioned in section 47J an application is made for a restraint order which includes provision under section 41A authorising detention of the property, the property may be detained until the application is determined or otherwise disposed of.
(3) If such an application is made within that period and the application is refused, the property may be detained until there is no further possibility of an appeal against—
(a) the decision to refuse the application, or
(b) any decision made on an appeal against that decision.
(4) In subsection (2) the reference to the period mentioned in section 47J includes that period as extended by any order under section 47M.
(5) Exempt property seized under section 47C(5A) may be detained under subsections (2) and (3) only with the approval of a senior officer.
(6) In subsection (5)—
“exempt property” has the meaning given in section 47C(4) (reading references there to the defendant as references to the person by whom the property is held);
“senior officer” has the meaning given in section 47G(3) (and for this purpose, the powers under subsections (2) and (3) to detain property are to be treated as exercised by the appropriate officer who seized the property).
47L Further detention pending variation of restraint order
(1) This section applies if—
(a) property is detained under section 47J,
(b) a restraint order is in force in respect of the property, and
(c) the order does not include provision under section 41A authorising the detention of the property.
(2) If within the period mentioned in section 47J an application is made for the order to be varied so as to include provision under section 41A authorising detention of the property, the property may be detained until the application is determined or otherwise disposed of.
(3) If such an application is made within that period and the application is refused, the property may be detained until there is no further possibility of an appeal against—
(a) the decision to refuse the application, or
(b) any decision made on an appeal against that decision.
(4) Exempt property seized under section 47C(5A) may be detained under subsections (2) and (3) only with the approval of a senior officer.
(5) In subsection (4)—
“exempt property” has the meaning given in section 47C(4) (reading references there to the defendant as references to the person by whom the property is held);
“senior officer” has the meaning given in section 47G(3) (and for this purpose, the powers under subsections (2) and (3) to detain property are to be treated as exercised by the appropriate officer who seized the property).
(1) This section applies if—
(a) property is detained under section 47J,
(b) no restraint order is in force in respect of the property, and
(c) no application has been made for a restraint order which includes provision under section 41A authorising detention of the property.
(2) A magistrates' court may by order extend the period for which the property or any part of it may be detained under section 47J if satisfied that—
(a) any of the conditions in section 47B is met (reading references in that section to the officer as references to the court),
(b) the property or part is realisable property other than exempt property ..., and
(c) there are reasonable grounds for suspecting that—
(i) the property may otherwise be made unavailable for satisfying any confiscation order that has been or may be made against the defendant, or
(ii) the value of the property may otherwise be diminished as a result of conduct by the defendant or any other person.
(2A) A magistrates’ court may by order extend the period for which the property may be detained under section 47J if satisfied that—
(a) any of the conditions in section 47B is met (reading references in that section to the officer as references to the court),
(b) the property is free property, and
(c) there are reasonable grounds for suspecting that the property is a cryptoasset-related item.
(2B) An order under subsection (2A) may not be made in respect of exempt property unless the court is satisfied that the person applying for the order is working diligently and expeditiously—
(a) to determine whether the property is a cryptoasset-related item, or
(b) if it has already been determined to be such an item, to seize any related cryptoassets under section 47C(1).
(2C) An order under subsection (2A) may not extend the period for which the property may be detained beyond the period of—
(a) six months beginning with the date of the order, or
(b) in the case of exempt property, 14 days beginning with that date.
This does not prevent the period from being further extended by another order under this section.
(2D) The period of 14 days referred to in subsection (2C)(b) is to be calculated in accordance with section 47H(7) (reading the reference there to 48 hours as a reference to 14 days).
(3) An application for an order may be made by—
(a) the Commissioners for Her Majesty's Revenue and Customs,
(aa) an immigration officer;
(b) a constable,
(ba) an SFO officer,
(c) an accredited financial investigator, or
(d) the prosecutor.
(4) If the property was seized in reliance on the first or second condition in section 47B, “the prosecutor” means a person who is to have conduct of any proceedings for the offence.
(5) An order under this section must provide for notice to be given to persons affected by it.
(6) In this section—
“exempt property” has the meaning given in section 47C(4) (reading references there to the defendant as references to the person by whom the property is held);
“part” includes portion.