Office of Public Sector Information
An Act to make further provision for and in relation to the recovery of the proceeds of criminal conduct; to make further provision for facilitating the enforcement of overseas forfeiture and restraint orders; and for connected purposes.
[28th June 1995]
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
(1) Section 71 of the [1988 c. 33.] Criminal Justice Act 1988 (“the 1988 Act”) shall be amended as follows.
(2) For subsections (1) to (3) (orders confiscating the proceeds of an offence) there shall be substituted the following subsections—
“(1) Where an offender is convicted, in any proceedings before the Crown Court or a magistrates' court, of an offence of a relevant description, it shall be the duty of the court—
(a) if the prosecutor has given written notice to the court that he considers that it would be appropriate for the court to proceed under this section, or
(b) if the court considers, even though it has not been given such notice, that it would be appropriate for it so to proceed,
to act as follows before sentencing or otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct.
(1A) The court shall first determine whether the offender has benefited from any relevant criminal conduct.
(1B) Subject to subsection (1C) below, if the court determines that the offender has benefited from any relevant criminal conduct, it shall then—
(a) determine in accordance with subsection (6) below the amount to be recovered in his case by virtue of this section, and
(b) make an order under this section ordering the offender to pay that amount.
(1C) If, in a case falling within subsection (1B) above, the court is satisfied that a victim of any relevant criminal conduct has instituted, or intends to institute, civil proceedings against the defendant in respect of loss, injury or damage sustained in connection with that conduct—
(a) the court shall have a power, instead of a duty, to make an order under this section;
(b) subsection (6) below shall not apply for determining the amount to be recovered in that case by virtue of this section; and
(c) where the court makes an order in exercise of that power, the sum required to be paid under that order shall be of such amount, not exceeding the amount which (but for paragraph (b) above) would apply by virtue of subsection (6) below, as the court thinks fit.
(1D) In this Part of this Act “relevant criminal conduct”, in relation to a person convicted of an offence in any proceedings before a court, means (subject to section 72AA(6) below) that offence taken together with any other offences of a relevant description which are either—
(a) offences of which he is convicted in the same proceedings, or
(b) offences which the court will be taking into consideration in determining his sentence for the offence in question.
(1E) For the purposes of this Part of this Act an offence is an offence of a relevant description—
(a) in the case of an offence of which a person is convicted in any proceedings before the Crown Court or which is or will be taken into consideration by the Crown Court in determining any sentence, if it is an offence to which this Part of this Act applies; and
(b) in the case of an offence of which a person is convicted in any proceedings before a magistrates' court or which is or will be taken into consideration by a magistrates' court in determining any sentence, if it is an offence listed in Schedule 4 to this Act.”
(3) In subsection (6) (amount to be paid under a confiscation order)—
(a) at the beginning there shall be inserted “Subject to subsection (1C) above”; and
(b) for “must be at least the minimum amount, but must not exceed” there shall be substituted “shall be equal to”.
(4) Subsections (7) and (8) (minimum amount of confiscation order) shall cease to have effect.
(5) In subsection (7A) (standard of proof required to determine matters under Part VI)—
(a) in paragraph (a), for “as mentioned in subsection (2)(b)(i) above” there shall be substituted “from any offence”, and at the end there shall be inserted “or”;
(b) paragraph (b) shall be omitted; and
(c) in paragraph (c), the words “by virtue of section 72 below” shall be omitted.
The following section shall be inserted in the 1988 Act after section 72—
(1) This section applies in a case where an offender is convicted, in any proceedings before the Crown Court or a magistrates' court, of a qualifying offence which is an offence of a relevant description, if—
(a) the prosecutor gives written notice for the purposes of subsection (1)(a) of section 71 above;
(b) that notice contains a declaration that it is the prosecutor’s opinion that the case is one in which it is appropriate for the provisions of this section to be applied; and
(c) the offender—
(i) is convicted in those proceedings of at least two qualifying offences (including the offence in question); or
(ii) has been convicted of a qualifying offence on at least one previous occasion during the relevant period.
(2) In this section “qualifying offence”, in relation to proceedings before the Crown Court or a magistrates' court, means any offence in relation to which all the following conditions are satisfied, that is to say—
(a) it is an offence to which this Part of this Act applies;
(b) it is an offence which was committed after the commencement of section 2 of the Proceeds of Crime Act 1995; and
(c) that court is satisfied that it is an offence from which the defendant has benefited.
(3) When proceeding under section 71 above in pursuance of the notice mentioned in subsection (1)(a) above, the court may, if it thinks fit, determine that (subject to subsection (5) below) the assumptions specified in subsection (4) below are to be made for the purpose—
(a) of determining whether the defendant has benefited from relevant criminal conduct; and
(b) if he has, of assessing the value of the defendant’s benefit from such conduct.
(4) Those assumptions are—
(a) that any property appearing to the court—
(i) to be held by the defendant at the date of conviction or at any time in the period between that date and the determination in question, or
(ii) to have been transferred to him at any time since the beginning of the relevant period,
was received by him, at the earliest time when he appears to the court to have held it, as a result of or in connection with the commission of offences to which this Part of this Act applies;
(b) that any expenditure of his since the beginning of the relevant period was met out of payments received by him as a result of or in connection with the commission of offences to which this Part of this Act applies; and
(c) that, for the purposes of valuing any benefit which he had or which he is assumed to have had at any time, he received the benefit free of any other interests in it.
(5) Where the court has determined that the assumptions specified in subsection (4) above are to be made in any case it shall not in that case make any such assumption in relation to any particular property or expenditure if—
(a) that assumption, so far as it relates to that property or expenditure, is shown to be incorrect in the defendant’s case;
(b) that assumption, so far as it so relates, is shown to be correct in relation to an offence the defendant’s benefit from which has been the subject of a previous confiscation order; or
(c) the court is satisfied that there would (for any other reason) be a serious risk of injustice in the defendant’s case if the assumption were to be made in relation to that property or expenditure.
(6) Where the assumptions specified in subsection (4) above are made in any case, the offences from which, in accordance with those assumptions, the defendant is assumed to have benefited shall be treated as if they were comprised, for the purposes of this Part of this Act, in the conduct which is to be treated, in that case, as relevant criminal conduct in relation to the defendant.
(7) In this section “the date of conviction” means—
(a) in a case not falling within paragraph (b) below, the date on which the defendant is convicted of the offence in question, or
(b) where he is convicted of that offence and one or more other offences in the proceedings in question and those convictions are not all on the same date, the date of the latest of those convictions; and
“the relevant period” means the period of six years ending when the proceedings in question were instituted against the defendant.”
(1) For subsection (1) of section 73 of the 1988 Act (effect of provision of statement by prosecutor) there shall be substituted the following subsections—
“(1) Subsection (1A) below applies in a case where a person has been convicted of an offence of a relevant description if—
(a) the prosecutor has given written notice to the court for the purposes of subsection (1)(a) of section 71 above; or
(b) the court is proceeding in pursuance of subsection (1)(b) of that section and requires a statement under this section from the prosecutor.
(1A) Where this subsection applies, the prosecutor shall, within such period as the court may direct, tender to the court a statement as to any matters relevant—
(a) to determining whether the defendant has benefited from any relevant criminal conduct; or
(b) to an assessment of the value of the defendant’s benefit from that conduct;
and, where such a statement is tendered in a case in which a declaration has been made for the purposes of subsection (1)(b) of section 72AA above, that statement shall also set out all such information available to the prosecutor as may be relevant for the purposes of subsections (4) and (5)(b) or (c) of that section.
(1B) Where a statement is tendered to the court under this section—
(a) the prosecutor may at any time tender to the court a further statement as to the matters mentioned in subsection (1A) above; and
(b) the court may at any time require the prosecutor to tender a further such statement within such period as it may direct.
(1C) Where—
(a) any statement has been tendered to any court by the prosecutor under this section, and
(b) the defendant accepts to any extent any allegation in the statement,
the court may, for the purpose of determining whether the defendant has benefited from any relevant criminal conduct or of assessing the value of the defendant’s benefit from such conduct, treat his acceptance as conclusive of the matters to which it relates.”
(2) In subsection (2)(a) of that section (power of court to require defendant to indicate extent of acceptance of allegations), for “under subsection (1)(a) above” there shall be substituted “by the prosecutor under this section”.
(3) In subsection (6) of that section (issue of certificate by court), for the words from “the offence” onwards there shall be substituted “any relevant criminal conduct.”
(4) After subsection (6) of that section, there shall be inserted the following subsection—
“(7) Where the court has given a direction under this section, it may at any time vary the direction by giving a further direction.”
The following section shall be inserted in the 1988 Act after section 73—
(1) This section applies in a case where a person has been convicted of an offence of a relevant description if—
(a) the prosecutor has given written notice to the court for the purposes of subsection (1)(a) of section 71 above; or
(b) the court is proceeding in pursuance of subsection (1)(b) of that section or is considering whether so to proceed.
(2) For the purpose of obtaining information to assist it in carrying out its functions under this Part of this Act, the court may at any time order the defendant to give it such information as may be specified in the order.
(3) An order under subsection (2) above may require all, or any specified part, of the required information to be given to the court in such manner, and before such date, as may be specified in the order.
(4) Rules of court may make provision as to the maximum or minimum period that may be allowed under subsection (3) above.
(5) If the defendant fails, without reasonable excuse, to comply with any order under this section, the court may draw such inference from that failure as it considers appropriate.
(6) Where the prosecutor accepts to any extent any allegation made by the defendant—
(a) in giving to the court information required by an order under this section, or
(b) in any other statement tendered to the court for the purposes of this Part of this Act,
the court may treat that acceptance as conclusive of the matters to which it relates.
(7) For the purposes of this section an allegation may be accepted in such manner as may be prescribed by rules of court or as the court may direct.”
The following section shall be inserted in the 1988 Act after section 74—
(1) This section applies in any case where—
(a) a person has been convicted, in any proceedings before the Crown Court or a magistrates' court, of an offence of a relevant description;
(b) the prosecutor did not give written notice for the purposes of subsection (1)(a) of section 71 above; and
(c) a determination was made for the purposes of subsection (1)(b) of that section not to proceed under that section or no determination was made for those purposes.
(2) If the prosecutor has evidence—
(a) which, at the date of conviction or, if later, when any determination not to proceed under section 71 above was made, was not available to the prosecutor (and, accordingly, was not considered by the court); but
(b) which the prosecutor believes would have led the court to determine, if—
(i) the prosecutor had given written notice for the purposes of subsection (1)(a) of that section, and
(ii) the evidence had been considered by the court,
that the defendant had benefited from relevant criminal conduct,
the prosecutor may apply to the relevant court for it to consider the evidence.
(3) If, having considered the evidence, the relevant court is satisfied that it is appropriate to do so, it shall proceed under section 71 above as if it were doing so before sentencing or otherwise dealing with the defendant in respect of any relevant criminal conduct, and section 72A above shall apply accordingly.
(4) In considering whether it is appropriate to proceed under section 71 above in accordance with subsection (3) above, the court shall have regard to all the circumstances of the case.
(5) Where, having decided in pursuance of subsection (3) above to proceed under section 71 above, the relevant court determines that the defendant did benefit from relevant criminal conduct—
(a) subsection (1B)(b) of that section shall not apply and subsection (6) of that section shall not apply for determining the amount to be recovered in that case;
(b) that court shall have a power, instead of a duty, to make a confiscation order; and
(c) if the court makes an order in exercise of that power, the sum required to be paid by that order shall be of such amount, not exceeding the amount which (but for paragraph (a) above) would apply by virtue of subsection (6) of that section, as the court thinks fit.
(6) In considering the circumstances of any case either under subsection (4) above or for the purposes of subsection (5)(b) and (c) above, the relevant court shall have regard, in particular, to—
(a) any fine imposed on the defendant in respect of any relevant criminal conduct; and
(b) any order made in connection with any such conduct under section 35 of the [1973 c. 62.] Powers of Criminal Courts Act 1973 (compensation orders).
(7) In making any determination under or for the purposes of this section the relevant court may take into account, to the extent that they represent respects in which the defendant has benefited from any relevant criminal conduct, any payments or other rewards which were not received by him until after the time when he was sentenced or otherwise dealt with in the case in question.
(8) Where an application under this section contains such a declaration as is mentioned in paragraph (b) of subsection (1) of section 72AA above, that section shall apply (subject to subsection (9) below) in the case of any determination on the application as if it were a determination in a case in which the requirements of paragraphs (a) and (b) of that subsection had been satisfied.
(9) For the purposes of any determination to which section 72AA above applies by virtue of subsection (8) above, none of the assumptions specified in subsection (4) of that section shall be made in relation to any property unless it is property held by or transferred to the defendant before the time when he was sentenced or otherwise dealt with in the case in question.
(10) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with the date of conviction.
(11) Sections 73 and 73A above shall apply where the prosecutor makes an application under this section as they apply in a case where the prosecutor has given written notice to the court for the purposes of subsection (1)(a) of section 71 above, but as if the reference in section 73(1A) to a declaration made for the purposes of subsection (1)(b) of section 72AA above were a reference to a declaration for the purposes of subsection (8) above.
(12) In this section—
“the date of conviction” means—
in a case not falling within paragraph (b) below, the date on which the defendant was convicted of the offence in question, or
where he was convicted of that offence and one or more other offences in the same proceedings and those convictions were not all on the same date, the date of the latest of those convictions;
and
“the relevant court” means—
where the defendant was convicted in proceedings before the Crown Court, that Court; and
where he was convicted in proceedings before a magistrates' court, any magistrates' court for the same area.”
The following section shall be inserted in the 1988 Act after the section 74A inserted by section 5 above—
(1) This section applies where in any case there has been a determination under subsection (1A) of section 71 above (“the original determination”) that the defendant in that case had not benefited from any relevant criminal conduct.
(2) If the prosecutor has evidence—
(a) which was not considered by the court which made the original determination, but
(b) which the prosecutor believes would have led that court (if it had been considered) to determine that the defendant had benefited from relevant criminal conduct,
the prosecutor may apply to the relevant court for it to consider that evidence.
(3) If, having considered the evidence, the relevant court is satisfied that (if that evidence had been available to it) it would have determined that the defendant had benefited from relevant criminal conduct, that court—
(a) shall proceed, as if it were proceeding under section 71 above before sentencing or otherwise dealing with the defendant in respect of any relevant criminal conduct—
(i) to make a fresh determination of whether the defendant has benefited from any relevant criminal conduct; and
(ii) then to make such a determination as is mentioned in subsection (1B)(a) of that section;
and
(b) subject to subsection (4) below, shall have a power, after making those determinations, to make an order requiring the payment of such sum as it thinks fit;
and an order under paragraph (b) above shall be deemed for all purposes to be a confiscation order.
(4) The court shall not, in exercise of the power conferred by paragraph (b) of subsection (3) above, make any order for the payment of a sum which is more than the amount determined in pursuance of paragraph (a)(ii) of that subsection.
(5) In making any determination under or for the purposes of subsection (3) above the relevant court may take into account, to the extent that they represent respects in which the defendant has benefited from any relevant criminal conduct, any payments or other rewards which were not received by him until after the making of the original determination.
(6) Where, in a case in which section 72AA above does not otherwise apply, an application under this section contains such a declaration as is mentioned in paragraph (b) of subsection (1) of that section, that section shall apply (subject to subsection (7) below) in the case of any determination on the application as if it were a determination in a case in which the requirements of paragraphs (a) and (b) of that subsection had been satisfied.
(7) For the purposes of any determination under or for the purposes of subsection (3) above to which section 72AA above applies, none of the assumptions specified in subsection (4) of that section shall be made in relation to any property unless it is property held by or transferred to the defendant before the time when he was sentenced or otherwise dealt with in the case in question.
(8) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with the date of conviction.
(9) Section 72A above shall apply where the court is acting under this section as it applies where the court is acting under section 71 above.
(10) Sections 73 and 73A above shall apply where the prosecutor makes an application under this section as they apply in a case where the prosecutor has given written notice to the court for the purposes of subsection (1)(a) of section 71 above but—
(a) as if the reference in section 73(1A) to a declaration made for the purposes of subsection (1)(b) of section 72AA above included a reference to a declaration for the purposes of subsection (6) above; and
(b) as if any reference in section 73(6) to the time the confiscation order is made were a reference to the time the order is made on that application.
(11) In this section—
“the date of conviction” has the same meaning as in section 74A above; and
“the relevant court” means—
where the conviction by reference to which the original determination was made was in proceedings before the Crown Court, that Court; and
where that conviction was in proceedings before a magistrates' court, any magistrates' court for the same area.”
The following section shall be inserted in the 1988 Act after the section 74B inserted by section 6 above—
(1) This section applies where, in the case of a person convicted of any offence, there has been a determination under this Part of this Act (“the current determination”) of any sum required to be paid in his case under any confiscation order.
(2) Where the prosecutor is of the opinion that the value of any benefit to the defendant from any relevant criminal conduct was greater than the value at which that benefit was assessed by the court on the current determination, the prosecutor may apply to the relevant court for the evidence on which the prosecutor has formed his opinion to be considered by the court.
(3) If, having considered the evidence, the relevant court is satisfied that the value of the benefit from any relevant criminal conduct is greater than the value so assessed by the court (whether because its real value was higher at the time of the current determination than was thought or because the value of the benefit in question has subsequently increased), the relevant court—
(a) subject to subsection (4) below, shall make a fresh determination, as if it were proceeding under section 71 above before sentencing or otherwise dealing with the defendant in respect of any relevant criminal conduct, of the following amounts, that is to say—
(i) the amount by which the defendant has benefited from such conduct; and
(ii) the amount appearing to be the amount that might be realised at the time of the fresh determination;
and
(b) subject to subsection (5) below, shall have a power to increase, to such extent as it thinks just in all the circumstances of the case, the amount to be recovered by virtue of that section and to vary accordingly any confiscation order made by reference to the current determination.
(4) Where—
(a) the court is under a duty to make a fresh determination for the purposes of subsection (3)(a) above in any case, and
(b) that case is a case to which section 72AA above applies,
the court shall not have power, in determining any amounts for those purposes, to make any of the assumptions specified in subsection (4) of that section in relation to any property unless it is property held by or transferred to the defendant before the time when he was sentenced or otherwise dealt with in the case in question.
(5) The court shall not, in exercise of the power conferred by paragraph (b) of subsection (3) above, vary any order so as to make it an order requiring the payment of any sum which is more than the lesser of the two amounts determined in pursuance of paragraph (a) of that subsection.
(6) In making any determination under or for the purposes of subsection (3) above the relevant court may take into account, to the extent that they represent respects in which the defendant has benefited from any relevant criminal conduct, any payments or other rewards which were not received by him until after the making of the original determination.
(7) Where the Crown Court varies a confiscation order under subsection (3) above, it shall substitute for the term of imprisonment or of detention fixed under subsection (2) of section 31 of the [1973 c. 62.] Powers of Criminal Courts Act 1973 in respect of the amount to be recovered under the order a longer term determined in accordance with that section (as it has effect by virtue of section 75 below) in respect of any greater amount substituted under subsection (3) above.
(8) Subsection (7) above shall apply only if the effect of the substitution is to increase the maximum period applicable in relation to the order under section 31(3A) of that Act of 1973.
Proceeds of Crime Act 1995