67L Appeals in relation to realisation etc of seized property
(1) If the enforcing court decides not to make an order under section 67ZA(3), 67A(3) or 67AA(2), an appropriate officer may appeal against the decision to the applicable court.
(2) If the enforcing court makes an order under 67ZA(3), 67A(3) or 67AA(2), a person affected by the order may appeal in respect of the order to the applicable court, but only if conditions 1 and 2 are met (and see subsection (5)).
(3) Condition 1 is met if no determination under section 10A has been made in relation to the case.
(4) Condition 2 is met if—
(a) the person concerned was not given a reasonable opportunity to make representations when the confiscation order was made, or
(b) it appears to the applicable court to be arguable that not hearing the appeal would result in a serious risk of injustice to that person.
(5) A person holding the property to which the order under section 67ZA, 67A or (as the case may be) 67AA relates may not appeal under subsection (2) if there is a confiscation order made against them.
(6) An appropriate officer may appeal to the applicable court against—
(a) a decision by the enforcing court not to make a determination under section 67B;
(b) a determination made by the enforcing court under that section.
(7) On an appeal under this section to the Court of Appeal it may—
(a) confirm the decision, or
(b) make such order as it believes is appropriate.
(8) An appeal lies to the Supreme Court from a decision of the Court of Appeal on an appeal under this section, at the instance of any person who was a party to the proceedings before the Court of Appeal.
(9) On an appeal under subsection (8) the Supreme Court may—
(a) confirm the decision of the Court of Appeal, or
(b) make such order as it believes is appropriate.
(10) In this section—
“the applicable court” is—
in a case where the enforcing court is a magistrates’ court, the Crown Court;
in a case where the enforcing court is the Crown Court, the Court of Appeal;
“appropriate officer” has the same meaning as in section 41A.
(1) Subsections (2) and (3) apply to—
(a) an application under section 41, 42, 48, 49 or 63;
(b) an appeal under section 67J or 67K.
(2) An accredited financial investigator must not make such an application or bring such an appeal unless he falls within subsection (3).
(3) An accredited financial investigator falls within this subsection if he is one of the following or is authorised for the purposes of this section by one of the following—
(a) a police officer who is not below the rank of superintendent,
(b) a customs officer who is not below such grade as is designated by the Commissioners of Customs and Excise as equivalent to that rank,
(c) an accredited financial investigator who falls within a description specified in an order made for the purposes of this paragraph by the Secretary of State or the Welsh Ministers under section 453.
(4) If such an application is made or appeal brought by an accredited financial investigator any subsequent step in the application or appeal or any further application or appeal relating to the same matter may be taken, made or brought by a different accredited financial investigator who falls within subsection (3).
(5) If—
(a) an application for a restraint order is made by an accredited financial investigator, and
(b) a court is required under section 58(6) to give the applicant for the order an opportunity to be heard,
the court may give the opportunity to a different accredited financial investigator who falls within subsection (3).
(1) This section applies to—
(a) the powers conferred on a court by sections 41 to 59 , sections 62 to 67D and sections 67J to 67L;
(b) the powers of a receiver appointed under section 48 or 50.
(c) the powers conferred on appropriate officers by sections 47C to 47L;
(d) the powers conferred on senior officers by section 47G.
(2) The powers—
(a) must be exercised with a view to the value for the time being of realisable property being made available (by the property’s realisation) for satisfying any confiscation order that has been or may be made against the defendant;
(b) must be exercised, in a case where a confiscation order has not been made, with a view to securing that there is no diminution in the value of realisable property;
(c) must be exercised without taking account of any obligation of the defendant or a recipient of a tainted gift if the obligation conflicts with the object of satisfying any confiscation order that has been or may be made against the defendant;
(d) may be exercised in respect of a debt owed by the Crown.
(2A) Subsection (2)(a) does not apply to—
(a) the power conferred on a court by paragraph (e) of section 51(2) (which enables the court to give a receiver the power to destroy cryptoassets),
(b) a power conferred on a receiver by virtue of that paragraph, or
(c) the power conferred on a magistrates’ court by section 67AA (power to order destruction of cryptoassets).
(3) Subsection (2) has effect subject to the principal objective (see section 5A) and the following rules—
(a) the powers must be exercised with a view to allowing a person other than the defendant or a recipient of a tainted gift to retain or recover the value of any interest held by him;
(b) in the case of realisable property held by a recipient of a tainted gift, the powers must be exercised with a view to realising no more than the value for the time being of the gift;
(c) in a case where a confiscation order has not been made against the defendant, property must not be sold if the court so orders under subsection (4).
(4) If on an application by the defendant, or by the recipient of a tainted gift, the court decides that property cannot be replaced it may order that it must not be sold.
(5) An order under subsection (4) may be revoked or varied.
(1) This section applies if—
(a) a defendant is convicted of an offence by a magistrates’ court, and
(b) the prosecutor asks the court to commit the defendant to the Crown Court with a view to a confiscation order being considered under section 6.
(2) In such a case the magistrates’ court—
(a) must commit the defendant to the Crown Court in respect of the offence, and
(b) may commit him to the Crown Court in respect of any other offence falling within subsection (3).
(3) An offence falls within this subsection if—
(a) the defendant has been convicted of it by the magistrates’ court or any other court, and
(b) the magistrates’ court has power to deal with him in respect of it.
(4) If a committal is made under this section in respect of an offence or offences—
(a) section 6 applies accordingly, and
(b) the committal operates as a committal of the defendant to be dealt with by the Crown Court in accordance with section 71.
(5) If a committal is made under this section in respect of an offence for which (apart from this section) the magistrates’ court could have committed the defendant for sentence under section 14(2) of the Sentencing Code (offences triable either way) or under section 16(2) or 16A(2) of that Code (committal of child or young person) the court must state whether it would have done so.
(6) A committal under this section may be in custody or on bail.
(1) If a defendant is committed to the Crown Court under section 70 in respect of an offence or offences, this section applies (whether or not the court proceeds under section 6).
(2) In the case of an offence in respect of which the magistrates’ court has stated under section 70(5) that it would have committed the defendant for sentence, the Crown Court—
(a) must inquire into the circumstances of the case, and
(b) may deal with the defendant in any way in which it could deal with him if he had just been convicted of the offence on indictment before it.
(3) In the case of any other offence the Crown Court—
(a) must inquire into the circumstances of the case, and
(b) may deal with the defendant in any way in which the magistrates’ court could deal with him if it had just convicted him of the offence.
(1) If the following three conditions are satisfied the Crown Court may order the payment of such compensation as it believes is just.
(2) The first condition is satisfied if a criminal investigation has been started with regard to an offence and proceedings are not started for the offence.
(3) The first condition is also satisfied if proceedings for an offence are started against a person and—
(a) they do not result in his conviction for the offence, or
(b) he is convicted of the offence but the conviction is quashed or he is pardoned in respect of it.
(4) If subsection (2) applies the second condition is that—
(a) in the criminal investigation there has been a serious default by a person mentioned in subsection (9), and
(b) the investigation would not have continued if the default had not occurred.
(5) If subsection (3) applies the second condition is that—
(a) in the criminal investigation with regard to the offence or in its prosecution there has been a serious default by a person who is mentioned in subsection (9), and
(b) the proceedings would not have been started or continued if the default had not occurred.
(6) The third condition is that an application is made under this section by a person who held realisable property and has suffered loss in consequence of anything done in relation to it by or in pursuance of an order under this Part.
(7) The offence referred to in subsection (2) may be one of a number of offences with regard to which the investigation is started.
(8) The offence referred to in subsection (3) may be one of a number of offences for which the proceedings are started.
(9) Compensation under this section is payable to the applicant and—
(a) if the person in default was or was acting as a member of a police force, the compensation is payable out of the police fund from which the expenses of that force are met;
(b) if the person in default was a member of the Crown Prosecution Service or was acting on its behalf, the compensation is payable by the Director of Public Prosecutions;
(ba) if the person in default was a National Crime Agency officer, the compensation is payable by the National Crime Agency;
(c) if the person in default was a member of the Serious Fraud Office, the compensation is payable by the Director of that Office;
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e) if the person in default was an officer of the Commissioners of Inland Revenue, the compensation is payable by those Commissioners.
(ea) if the person in default was an immigration officer, the compensation is payable by the Secretary of State;
(f) if the person in default was an accredited financial investigator and none of paragraphs (a) to (e) apply, the compensation is payable in accordance with paragraph (a), (c) , (da) or (e) of section 302(7A) (as the case may require).
(1) This section applies if—
(a) the court varies a confiscation order under section 29 or discharges one under section 30, and
(b) an application is made to the Crown Court by a person who held realisable property and has suffered loss as a result of the making of the order.
(2) The court may order the payment of such compensation as it believes is just.
(3) Compensation under this section is payable—
(a) to the applicant;
(b) by the Lord Chancellor.
(1) This section applies if—
(a) any of the conditions in section 40 is satisfied,
(b) the prosecutor ... believes that realisable property is situated in a country or territory outside the United Kingdom (the receiving country), and
(c) the prosecutor ... 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
(c) the proceeds of realisation.
(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.
(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 , or intended to benefit, from the conduct and—
(a) in the proceedings in which he was convicted he was convicted of two or more other offences, each of two or more of them constituting conduct from which he has benefited or intended to benefit, 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 or intended to benefit.
(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).
(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.
(8) But in a case where—
(a) the person—
(i) intended to have only a limited power to control or dispose of all or part of the property,
(ii) held the property temporarily, or
(iii) is treated as obtaining the property as a result of section 84(3), and
(b) the court believes that the amount found under subsection (7) in relation to the property would produce a result that would be unjust,
the court may reduce that amount to such amount (including zero) as the court believes is just.
(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—
(a) at any time after the commission of the offence concerned, or
(b) if the defendant’s particular criminal conduct consists of two or more offences and they were committed at different times, at any time after the commission of the earliest of the offences.
(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.
(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.
(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);
(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)).
(5) This section has effect subject to sections 80 , 80A and 81.
(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) Except where subsection (3A) or (3B) applies, 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.
(3A) Where the person no longer holds the property obtained because it has been sold, the value of the property at the material time is the greater of the following—
(a) the proceeds of the sale, adjusted to take account of later changes in the value of money;
(b) the value (immediately before the sale) of the property, adjusted to take account of later changes in the value of money.
(3B) Where the person no longer holds the property obtained because it has been destroyed by virtue of a court order under section 51(2)(e) or section 67AA (orders for destruction of cryptoassets), the value of the property at the material time is the market value of the property as set out in the court order, adjusted to take account of later changes in the value of money.
(3C) For the purposes of subsection (3A)(a), if the proceeds of the sale are 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 the sale.
(4) The references in subsection (2)(a) and (b) and subsection (3A)(b) to the value are to the value found in accordance with section 79.
(5) If only a proportion of the property was obtained by the person as a result of or in connection with the person’s criminal conduct, only that proportion is to be taken into account for the purposes of subsections (2) to (4).
(6) This section does not apply in a case where section 80A applies.
(1) This section applies if—
(a) a person uses a loan obtained as a result of or in connection with the person’s criminal conduct to purchase an interest in land,
(b) the loan is secured by a mortgage over the interest in land, and
(c) the interest in land has increased in value during the loan period.
(2) The value, at the material time, of the property obtained as a result of or in connection with the person’s criminal conduct is to be taken to be the amount found using the following formula—
AB×C
where—
A is the amount of the loan;
B is the value of the interest in land at the time it was purchased;
C is the amount by which the interest in land has increased in value between that time and the end of the loan period.
(3) The value of the interest in land at the beginning and end of the loan period is to be found in accordance with section 79.
(4) If the loan period ends before the material time, the amount found under subsection (2) is to be adjusted to take account of changes in the value of money between the end of the loan period and the material time.
(5) In this section—
“the loan period” is the period between the time when the loan is obtained and the earlier of—
the time when the principal, and any interest due, is repaid, and
the material time;
“the material time” is the time the court makes its decision.
(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.
(1) Property is free unless it falls within subsection (2) or (3).
(2) Property falls within this subsection if 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);
(c) Part 2 of the Proceeds of Crime (Scotland) Act 1995 (c. 43) (forfeiture of property used in crime);
(d) section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 or Chapter 4 of Part 7 of the Sentencing Code (deprivation orders);
(e) section 23 , 23A or 111 of the Terrorism Act 2000 (c. 11) (forfeiture orders);
(ea) paragraph 3(2), 6(2), 10D(1), 10G(2), 10J(3), 10S(2) , 10Z2(3), 10Z7AG(1), 10Z7BB(2), 10Z7CA(3), 10Z7CE(3) or 10Z7DG(3) of Schedule 1 to the Anti-terrorism, Crime and Security Act 2001;
(f) section 245A, 246, 255A, 256, 266, 295(2) , 298(2), 303L(1), 303O(3), 303R(3), 303Z3 , 303Z14(4), 303Z32(1), 303Z37(2), 303Z41(4), 303Z45(3) or 303Z60(4) of this Act.
(3) Property falls within this subsection if—
(a) it has been forfeited in pursuance of a forfeiture notice under section 297A or an account forfeiture notice under section 303Z9;
(b) it is detained under section 297C , 297D , 298(4) or 303O(9).
(ba) it is detained under section 303Z30, 303Z31 or 303Z32 in a case where section 303Z42(2) applies;
(bb) it is detained under section 303Z57 or 303Z58 in a case where section 303Z60(6) applies;
(c) it is the forfeitable property in relation to an order under section 303Q(1) or 303Z44(1).
(d) it has been forfeited in pursuance of a cash forfeiture notice under paragraph 5A of Schedule 1 to the Anti-terrorism, Crime and Security Act 2001 or an account forfeiture notice under paragraph 10W of that Schedule;
(e) it is detained under paragraph 5B, 5C, 9A or 10G(7) of that Schedule;
(ea) it is detained under paragraph 10Z7AE, 10Z7AF or 10Z7AG of that Schedule in a case where paragraph 10Z7CB(2) of that Schedule applies;
(eb) it is detained under paragraph 10Z7DD or 10Z7DE of that Schedule in a case where paragraph 10Z7DG(5) of that Schedule applies;
(f) it is the forfeitable property in relation to an order under paragraph 10I(1) or 10Z7CD(1) of that Schedule.
(1) Property is all property wherever situated and includes—
(a) money;
(b) all forms of real or personal property;
(c) things in action and other intangible or incorporeal 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 (and see subsection (3));
(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 or liquidator or in the trustee or interim trustee in the sequestration, under the Bankruptcy (Scotland) Act 2016), of his estate;
(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).
(3) If, as a result of or in connection with conduct, a person keeps property that the person already has, where the court believes it just to do so the person is to be treated as obtaining the property as a result of or in connection with the conduct.
(1) “Cryptoasset” means a cryptographically secured digital representation of value or contractual rights that uses a form of distributed ledger technology and can be transferred, stored or traded electronically.
(2) “Crypto wallet” means—
(a) software,
(b) hardware,
(c) a physical item, or
(d) any combination of the things mentioned in paragraphs (a) to (c),
which is used to store the cryptographic private key that allows cryptoassets to be accessed.
(3) “Cryptoasset-related item” has the meaning given in section 47C(5B).
(4) The circumstances in which a cryptoasset is taken to be “destroyed” include circumstances where it is—
(a) disposed of,
(b) transferred, or
(c) otherwise dealt with,
in such a way as to ensure, or to make it virtually certain, that it will not be the subject of any further transactions or be dealt with again in any other way.
(5) The Secretary of State may by regulations amend the definitions of “cryptoasset” and “crypto wallet” in this section.
(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;
(aa) when a relevant prosecutor issues a written charge and requisition or single justice procedure notice 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) or subsection (2)(ba) of that section (preferment by Crown Court judge following approval of deferred prosecution agreement).
(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 67E(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 67E(2) expires without an application being made, the proceedings are concluded when the time expires;
(c) if on appeal under section 67E(2) the Court of Appeal confirms the Crown Court’s decision, and an application for leave to appeal under section 67E(6) is refused, the proceedings are concluded when the decision to refuse is made;
(d) if on appeal under section 67E(2) the Court of Appeal confirms the Crown Court’s decision, and the time for applying for leave to appeal under section 67E(6) expires without an application being made, the proceedings are concluded when the time expires;
(e) if on appeal under section 67E(2) the Court of Appeal confirms the Crown Court’s decision, and on appeal under section 67E(6) the Supreme Court confirms the Court of Appeal’s decision, the proceedings are concluded when the Supreme Court confirms the decision;
(f) if on appeal under section 67E(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 67E(6) the Supreme Court 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) Any power to extend the time for giving notice of application for leave to appeal, or for applying for leave to appeal, must be ignored for the purposes of subsection (6).
(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.
(9) In this section “relevant prosecutor”, “requisition” , “single justice procedure notice” and “written charge” have the same meaning as in section 29 of the Criminal Justice Act 2003.
(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.
(1) A confiscation order is satisfied when no amount is due under it.
(1A) The “amount payable” under a confiscation order, where part of that amount has been paid, means the amount that remains to be paid.
(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....
(1) The following rule applies for the purposes of construing any provision of this Part which refers to there being no further possibility of—
(a) an appeal against a decision of a court, or
(b) an appeal on which an order of a court could be varied or quashed.
(2) Any power to extend the time for giving notice of application for leave to appeal, or for applying for leave to appeal, must be ignored.
(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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(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.
(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 Senior Courts 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).
(4) Subject to any rules made under section 91, the costs of and incidental to all proceedings on an appeal to the criminal division of the Court of Appeal under—
(za) section 67G(1) (appeals against determinations under section 10A),
(a) section 67J(1) or (2) (appeals against orders made in restraint proceedings), or
(b) section 67K(1) to (3) (appeals against, or relating to, the making of receivership orders),
are in the discretion of the court.
(5) Such rules may in particular make provision for regulating matters relating to the costs of those proceedings, including prescribing scales of costs to be paid to legal or other representatives.
(6) The court shall have full power to determine by whom and to what extent the costs are to be paid.
(7) In any proceedings mentioned in subsection (4), the court may—
(a) disallow, or
(b) (as the case may be) order the legal or other representative concerned to meet,
the whole of any wasted costs or such part of them as may be determined in accordance with rules under section 91.
(8) In subsection (7) “wasted costs” means any costs incurred by a party—
(a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative, or
(b) which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay.
(9) “Legal or other representative”, in relation to a party to proceedings means any person exercising a right of audience or right to conduct litigation on his behalf.
(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 Supreme Court under this Part.
(2) In relation to appeals to the Supreme Court 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).
In relation to—
(a) proceedings under this Part, or
(b) receivers appointed under this Part,
Criminal Procedure Rules may make provision corresponding to provision in Civil Procedure Rules.
(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.
Paragraph (b) applies only if, or to the extent that, it would not be disproportionate to require the accused to pay the recoverable 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, the Sheriff Appeal Court or the sheriff.
(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), the following must be ignored—
(a) any property in respect of which a recovery order is in force under section 266,
(b) any property which has been forfeited in pursuance of a forfeiture notice under section 297A or an account forfeiture notice under section 303Z9, ...
(c) any property in respect of which a forfeiture order is in force under section 298(2) , 303O(3), 303R(3) , 303Z14(4), 303Z41(4), 303Z45(3) or 303Z60(4) , and
(d) any property which is the forfeitable property in relation to an order under section 303Q(1) or 303Z44(1).
(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.
(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
(c) his benefit for the purposes of that order was benefit from his general criminal conduct.
(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);
(vi) Part 1 of the Proceeds of Crime (Scotland) Act 1995 (c. 43);
(vii) the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/ 1299 (N.I.9)); or
(viii) Part 2 or 4 of this Act.
(6) But subsection (5) does not apply to an amount which has been taken into account for the purposes of a deduction under that subsection on any earlier occasion.
(7) The reference to general criminal conduct in the case of a confiscation order made under any of the provisions listed in subsection (5)(b) is a reference to conduct in respect of which a court is required or entitled to make one or more assumptions for the purpose of assessing a person’s benefit from the conduct.
(1) For the purposes of deciding the recoverable amount, the available amount is the aggregate of—
(a) the total of the values (at the time the confiscation order is made) of all the free property then held by the accused minus the total amount payable in pursuance of obligations which then have priority, and
(b) the total of the values (at that time) of all tainted gifts.
(2) An obligation has priority if—
(a) it is an obligation of the accused to pay an amount due in respect of a fine or other order of a court which was imposed or made on conviction for an offence and at any time before the confiscation order is made, or
(b) it is an obligation of the accused to pay a sum which would be—
(i) a preferred debt if the accused’s estate were sequestrated on the date of the confiscation order, or
(ii) a preferential debt if his winding up were ordered on that date.
(3) In subsection (2)—
“preferred debt” has the meaning given by section 129(2) of the Bankruptcy (Scotland) Act 2016;
“preferential debt” has the meaning given by section 386 of the Insolvency Act 1986 (c. 45).
96 Assumptions to be made in case of criminal lifestyle
(1) Where the court decides under section 92 that the accused has a criminal lifestyle it must make the following four assumptions for the purpose of—
(a) deciding whether he has benefited from his general criminal conduct, and
(b) deciding his benefit from the conduct.
(2) The first assumption is that any property transferred to the accused at any time after the relevant day was obtained by him—
(a) as a result of his general criminal conduct, and
(b) at the earliest time he appears to have held it.
(3) The second assumption is that any property held by the accused at any time after the date of conviction was obtained by him—
(a) as a result of his general criminal conduct, and
(b) at the earliest time he appears to have held it.
(4) The third assumption is that any expenditure incurred by the accused at any time after the relevant day was met from property obtained by him as a result of his general criminal conduct.
(5) The fourth assumption is that, for the purpose of valuing any property obtained (or assumed to have been obtained) by the accused, he obtained it free of any other interests in it.
(6) But the court must not make any of those assumptions in relation to particular property or expenditure if—
(a) the assumption is shown to be incorrect, or
(b) there would be a serious risk of injustice if the assumption were made.
(7) If the court does not make one or more of those assumptions it must state its reasons.
(8) 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 instituted against the accused, or
(b) if there are two or more offences and proceedings for them were instituted on different days, the earliest of those days.
(9) But if a confiscation order mentioned in section 94(3)(c) has been made against the accused at any time during the period mentioned in subsection (8)—
(a) the relevant day is the day when the accused’s benefit was calculated for the purposes of the last such confiscation order;
(b) the second assumption does not apply to any property which was held by him on or before the relevant day.
(10) The date of conviction is—
(a) the date on which the accused was convicted of the offence concerned, or
(b) if there are two or more offences and the convictions are on different dates, the date of the latest.
(1) If the court decides to make a confiscation order it must act as mentioned in subsections (2) and (4) in respect of the offence or offences concerned.
(2) The court must take account of the confiscation order before—
(a) it imposes a fine on the accused, or
(b) it makes an order falling within subsection (3).
(3) These orders fall within this subsection—
(a) an order involving payment by the accused, other than a compensation order under section 249 of the Procedure Act (compensation orders) , a restitution order or a victim surcharge under section 253F(2) of the Procedure Act;
(b) an order under section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders);
(c) an order under Part 2 of the Proceeds of Crime (Scotland) Act 1995 (c. 43) (forfeiture orders);
(d) an order under section 23 or 23A of the Terrorism Act 2000 (c. 11) (forfeiture orders).
(4) Subject to subsection (2), the court must leave the confiscation order out of account in deciding the appropriate sentence for the accused.
(5) Subsection (6) applies if—
(a) a court makes both a confiscation order and a compensation order under section 249 of the Procedure Act against the same person in the same proceedings, and
(b) the court believes he will not have sufficient means to satisfy both the orders in full.
(6) In such a case the court must direct that so much of the compensation as it specifies is to be paid out of any sums recovered under the confiscation order; and the amount it specifies must be the amount it believes will not be recoverable because of the insufficiency of the person’s means.
97A Application of receipts: restitution order and victim surcharge
(1) Subsection (2) applies if—
(a) a court makes a confiscation order and a relevant order against the same person in the same proceedings, and
(b) the court believes that the person will not have sufficient means to satisfy both orders in full.
(2) In such a case the court must direct that so much of the amount payable under the relevant order as it specifies is to be paid out of any sums recovered under the confiscation order.
(3) Subsection (4) applies if—
(a) a court makes a confiscation order, a compensation order under section 249 of the Procedure Act and a relevant order against the same person in the same proceedings, and
(b) the court believes that the person will not have sufficient means to satisfy all the orders in full.
(4) In such a case the court must direct that so much of the compensation, and so much of the amount payable under the relevant order, as it specifies is to be paid out of any sums recovered under the confiscation order.
(5) The amount a court specifies under subsection (2) or (4) must be the amount the court believes will not be recoverable because of the insufficiency of the person's means.
(6) Where the amount a court specifies in a direction under subsection (4) is sufficient to satisfy in full the compensation, the direction must provide for the compensation to be so satisfied before payment of the amount payable under the relevant order.
(7) Where the amount a court specifies in a direction under subsection (4) is not sufficient to satisfy in full the compensation, the direction must provide for the compensation to be satisfied to the extent of the amount specified in the direction.
(8) In this section, “relevant order” means—
(a) a restitution order, or
(b) a victim surcharge under section 253F(2) of the Procedure Act.
(9) In this Part, “restitution order” is to be construed in accordance with section 253A(2) of the Procedure Act.
97B Orders for securing compliance with confiscation order
(1) This section applies where the court makes a confiscation order.
(2) The court may make such order in relation to the accused as it believes is appropriate for the purpose of ensuring that the confiscation order is effective (a “compliance order”).
(3) The court must consider whether to make a compliance order—
(a) on the making of the confiscation order, and
(b) if it does not make a compliance order then, at any later time (while the confiscation order is still in effect) on the application of the prosecutor.
(4) In considering whether to make a compliance order, the court must, in particular, consider whether any restriction or prohibition on the accused's travel outside the United Kingdom ought to be imposed for the purpose mentioned in subsection (2).
(5) The court may discharge or vary a compliance order on an application made by—
(a) the prosecutor;
(b) the accused.
(6) For the purposes of any appeal or review, a compliance order is a sentence.
(1) This section applies where—
(a) a compliance order has been made in relation to an accused, and
(b) it appears to the court that the accused has failed to comply with the compliance order.
(2) The court may—
(a) issue a warrant for the accused's arrest, or
(b) issue a citation to the accused requiring the accused to appear before the court.
(3) If the accused fails to appear as required by a citation issued under subsection (2)(b), the court may issue a warrant for the arrest of the accused.
(4) The unified citation provisions (as defined in section 307(1) of the Procedure Act) apply in relation to a citation under subsection (2)(b).
(5) The court must, before considering the alleged failure—
(a) provide the accused with written details of the alleged failure,
(b) inform the accused that the accused is entitled to be legally represented, and
(c) inform the accused that no answer need be given to the allegation before the accused—
(i) has been given an opportunity to take legal advice, or
(ii) has indicated that the accused does not wish to take legal advice.
(6) If the court is satisfied that the accused has failed without reasonable excuse to comply with the compliance order, the court may—
(a) impose on the accused a fine not exceeding level 3 on the standard scale,
(b) revoke the compliance order and impose on the accused a sentence of imprisonment for a term not exceeding 3 months,
(c) vary the compliance order, or
(d) both impose a fine under paragraph (a) and vary the order under paragraph (c).
(7) The court may vary the compliance order if the court is satisfied—
(a) that the accused has failed to comply with the order,
(b) that the accused had a reasonable excuse for the failure, and
(c) that, having regard to the circumstances which have arisen since the order was imposed, it is in the interests of justice to vary the order.
(8) Evidence of one witness is sufficient for the purpose of establishing that an accused has failed without reasonable excuse to comply with a compliance order.
97D Appeals against variation or discharge of compliance orders
The prosecutor or the accused may appeal against a decision of the court under section 97B(5)—
(a) to vary or refuse to vary a compliance order, or
(b) to discharge or refuse to discharge a compliance order.
(1) This section applies where a confiscation order has been made in relation to any person and the prosecutor has not satisfied the court that the person’s interest in his family home has been acquired as a benefit from his criminal conduct.
(2) Where this section applies, then, before the administrator disposes of any right or interest in the person’s family home he shall—
(a) obtain the relevant consent; or
(b) where he is unable to do so, apply to the court for authority to carry out the disposal.
(3) On an application being made to it under subsection (2)(b), the court, after having regard to all the circumstances of the case including—
(a) the needs and financial resources of the spouse or former spouse of the person concerned;
(b) the needs and financial resources of any child of the family;
(c) the length of the period during which the family home has been used as a residence by any of the persons referred to in paragraph (a) or (b),
may refuse to grant the application or may postpone the granting of the application for such period (not exceeding 12 months) as it may consider reasonable in the circumstances or may grant the application subject to such conditions as it may prescribe.
(4) Subsection (3) shall apply—
(a) to an action for division and sale of the family home of the person concerned; or
(b) to an action for the purpose of obtaining vacant possession of that home,
brought by the administrator as it applies to an application under subsection (2)(b) and, for the purposes of this subsection, any reference in subsection (3) to the granting of the application shall be construed as a reference to the granting of decree in the action.
(5) In this section—
“family home”, in relation to any person (in this subsection referred to as “the relevant person”) means any property in which the relevant person has or had (whether alone or in common with any other person) a right or interest, being property which is occupied as a residence by the relevant person and his or her spouse or by the relevant person’s spouse or former spouse (in any case with or without a child of the family) or by the relevant person with a child of the family;
“child of the family” includes any child or grandchild of either the relevant person or his or her spouse or former spouse, and any person who has been treated by either the relevant person or his or her spouse or former spouse as if he or she were a child of the relevant person, spouse or former spouse, whatever the age of such a child, grandchild or person may be; and
“relevant consent” means in relation to the disposal of any right or interest in a family home—
in a case where the family home is occupied by the spouse or former spouse of the relevant person, the consent of the spouse or, as the case may be, of the former spouse, whether or not the family home is also occupied by the relevant person;
where paragraph (a) does not apply, in a case where the family home is occupied by the relevant person with a child of the family, the consent of the relevant person.
(1) The court may—
(a) proceed under section 92 before it sentences the accused for the offence (or any of the offences concerned), or
(b) postpone proceedings under section 92 for a specified period.
(2) A period of postponement may be extended.
(3) A period of postponement (including one as extended) must not end after the permitted period ends.
(4) But subsection (3) does not apply if there are exceptional circumstances or if the accused has failed to comply with an order under section 102(1).
(5) The permitted period is the period of two years starting with the date of conviction.
(6) But if—
(a) the accused appeals against his conviction for the offence (or any of the offences) concerned, and
(b) the period of three months (starting with the day when the appeal is determined or otherwise disposed of) ends after the period found under subsection (5),
the permitted period is that period of three months.
(7) A postponement or extension may be made—
(a) on application by the accused;
(b) on application by the prosecutor;
(c) by the court of its own motion.
(8) If—
(a) proceedings are postponed for a period, and
(b) an application to extend the period is made before it ends,
the application may be granted even after the period ends.
(9) The date of conviction is—
(a) the date on which the accused was convicted of the offence concerned, or
(b) if there are two or more offences and the convictions were on different dates, the date of the latest.
(10) A confiscation order must not be quashed only on the ground that there was a defect or omission in the procedure connected with the application for or the granting of a postponement.
(11) But subsection (10) does not apply if before it made the confiscation order the court has—
(a) imposed a fine on the accused;
(b) made an order falling within section 97(3);
(c) made an order under section 249 of the Procedure Act;
(d) made a restitution order;
(e) ordered the accused under section 253F(2) of the Procedure Act to pay a victim surcharge.